attachment 1 support services scope of...

1Rev. 0 (8/15/2016)

Attachment 1

SUPPORT SERVICES SCOPE OF WORK

1. Detailed description of the Services provided by Bombardier (“Supplier”):

As prescribed by federal regulation, whenever a contractor/personnel (“ Customer”) or equipmentwill be working within the Right-of-Way, Supplier will provide qualified flagging/signal personnelto perform on-track roadway worker protection, signal/communication cable mark outs, and ensurethe safety/functionality of the signal system as required.

Contingent upon the scope of work and or working limits of each requested support service, allworking groups will be assigned an Employee in Charge (“ EIC”) in addition to the requirednumber of flagging/signal personnel as prescribed by rule and approved by NCTD”).

Permission to perform work within or adjacent to the Right-of-Way will be obtained from the on-site Supplier EIC who will direct, coordinate and obtain appropriate on-track protection for theCustomer personnel and equipment.

EIC Duties:

Identifies himself/herself, by name, as the EIC of on-track safety for the group;

Obtains track authority or provides protection and advises the work group of same;

Establishes the warning method used to notify personnel of the need to clear fortrains/on-track equipment

Conducts job safety briefings including but not limited to the following:

o method of on-track safety

o limits of authority (time duration, milepost-milepost)

o tracks that may be fouled

o control of movements on adjacent tracks

o procedure for on-track safety on adjacent tracks

o means of providing a warning to clear the track and adjacent work area

o identification of the place(s) of safety;

o designated work zones around machines

o distances to be maintained between machines when working and traveling

2Rev. 0 (8/15/2016)

Signal Personnel Duties:

Assures the safety and functionality of the signal system during the work to be performed. Providesaccess to signal locations, identifies signal and or communications cables

Flagman Duties

Direct or restrict the movement of trains past a point on a track

Provide on-track and Right-of-Way safety

Identify track/s which maybe fouled

Notify Roadway workers when to occupy, clear and re-occupy the track and adjacentwork area

2. Location where the Services will be rendered:

The services shall be provide on the Escondido and San Diego Subdivisions.

3. List of the licenses/permits/certifications/trainings required from the Supplier:

All Supplier employees will be qualified on required rules in order to provide roadway workerprotection on the Escondido and San Diego Subdivisions.

4. Hours in which Services described under Section 1 of this Attachment 1 must beperformed:

Services will be provided in accordance with NCTD approved work plans.

Attachment 2

MW – Flag Protection Work Request Form Date: 08/15/16 (Rev. 0)

Billing Authorization FormThis form must be completed in its entirety for Billing authorization. Work will not commence until the fully executedAuthorization form is returned to the applicant. Send the completed form to [email protected]

Billing Information: Flagging personnel shall be billed at the hourly rate of $68.52 and Signal personnel shall be billed at the hourly rateof $72.54. Annual rate increases of 3% we be applied starting on July 1 of each year. No flagging service will be provided unlessprepaid or upon Bombardier's acceptance of a Purchase Order. Call 760-975-9692 for payment instructions. Support Services must be requested at a minimum of 21 days in advance of the flagging/signal requirement andapproval is subject to the availability of resources. A minimum of four (4) hours for Flagging Services, not to exceed twelve (12) hours per day for each flagman whichincludes actual travel time, preparation, set- up, break down, and lunch if necessary. For shifts that exceed four hours, a lunch period of thirty (30) minutes must be taken within the first five hours of the start of a shift as per State ofCalifornia Labor Code. Work which requires shifts longer than 12 hours will require additional shifts to be called out and the contractor willbe billed the minimum 8 hours for each additional shiftInvoicing will be in hour increments and subject to availability. 72 hours advance notice is required for cancellation. If less than 72 hours notification is given the full amount of thescheduled Flagging Services will be invoiced. Any night shift that is less than 40 hours in 1 week will be subject to an eight (8) hour daily rate charge to return theflagman to his normal day shift.

For cancellation: Contact Ralph Godinez at 760-975-9692 or [email protected]

MUST BE FILLED OUT COMPLETELY

NAME OF CONTRACTOR: _______________________________________ Billable Party: Phone: _____________________________

Address: Email: _____________________________

City: State: ______ ZIP: ___________

Scope of Work: _______________________________________________________________________________________________________________________________

Contractor’s Signature: ____________________________________________________ Date: _____________________

Bank Details for setting up Electronic Fund Transfer (EFT) to Bombardier -

Name: Bank of America Swift Code: BOFAUS3N ABA #Wires : 26009593

Address: 901 main street Account No: 3752150247 Lockbox number: 4448Dallas, Texas, 75202-3714

Email for EFT Remittance Advice: [email protected]

Checks or postal orders should be crossed and made payable to: Bombardier Mass Transit CorporationPlease forward this with your remittance slip to: 3700 Martitime WayOceanside, CA 92056

Bombardier Purposes Only

Bombardier Confirmed : _____________________

Date Received BT Flagging contract #

mailto:[email protected]

MW -Flagging Protection Service Request Form Date: 08/15/16 (Rev.0)

Attachment 3

SUPPORT SERVICES REQUEST FORM

This form must be completed in its entirety to obtain Support Services. Support Services must be requested at a minimumof 21 days in advance of the requirement and approval is subject to the availability of resources. Work will not commenceuntil the fully executed Support Services Request Form is returned to the applicant.

Send the completed form to [email protected] cancellation: Contact Ralph Godinez at 760-975-9692 or [email protected]

NAME OF CONTRACTOR NCTD PERMIT NO:

PROJECT NAME LOCATION OF WORK – MILEPOST(S)

PERSON IN CHARGE AT WORKSITE CELL NUMBER: MEETING LOCATION WITH FLAGGING PERSON

SCOPE OF WORK:

REQUEST FOR: FLAGGING (CHECK) WITH FORM B: (CHECK) SIGNAL (CHECK) WITH FORM B: (CHECK)

EQUIPMENT TO BE USED:

WORK GROUP #1 NO. OFEMPLOYEES INWORK GROUP

WORK GROUP2

NO. OFEMPLOYEES INWORK GROUP

WORK GROUP3

NO. OF EMPLOYEES IN WORKGROUP

COMMENTS:

DATE: TIME: NO: DATE: TIME: NO: DATE: TIME: NO:

FLAGGER SIGNAL

EMPLOYEE IN CHARGE (EIC) WILL MAKE FINAL DETERMINATION OF FLAGGING / SIGNAL PROTECTION NEEDED AT EACH WORK LOCATION.

CONTRACTOR’S SIGNATURE: _______________________________________ DATE: __________________

BOMBARDIER APPROVED: ________________________________________ DATE: __________________

MAILING ADDRESS: 3700 MARITIME WAY, OCEANSIDE, CA 92056

mailto:[email protected]

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Terms and Conditions –NCTD O&M Flagging Rev 0. 8/15/2016

TERMS AND CONDITIONS

This Agreement executed on ________________, 20___ is betweena corporation having a place of

business at _____________________________________ hereinafter called: the " Customer") and Bombardier Mass

Transit Corporation, a Delaware corporation having a place ofbusiness at 1501 Lebanon Church Road, Pittsburgh, PA 15236hereinafter called: the "Supplier").

WHEREAS the Customer wishes to retain the services of theSupplier as described in Attachment 1 ( Scope of Services) and ineach executed Exhibit ( see template Attachment 3) issued inaccordance with this Agreement and the Supplier desires to providesuch services to the Customer.

NOW THEREFORE, in consideration of the mutual covenantsand agreements herein contained, the parties mutually covenant andagree as follows:

1 DEFINITIONSWhen the following terms are used in this Agreement, theyshall be construed to have the following meaning:

Agreement: all terms and conditions, and Exhibit duly signedby the Customer and the Supplier, all of them which form partof one instrument.

Consent or Approval: procedure or method given approval bythe Customer.

Compensation: the compensation set forth in Section 9 of thisAgreement.

Days: unless otherwise designated, calendar days.

Effective Date: the date set forth in Section 4 of thisAgreement.

Force Majeure: acts of God, wars, acts of public enemies, strikes, fires, floods, or other similar cause wholly beyond theSupplier’s control, or for any of the foregoing that affectsubcontractors or suppliers.

Goods: any material to be procured by the Supplier which isnecessary to perform the Services.

Master Contract: contract between NCTD and the Supplier forthe operations and maintenance of NCTD’s Sprinter andCoaster lines.

NCTD: the North County Transit District

Notice: a written notice.

Party: the Customer or the Supplier, together the Parties

Exhibit: the flagging request form confirming the work for aspecific project. .

Services: the scope of work to be rendered by the Supplierpursuant to this Agreement, Attachment 1 and all Exhibits, including, but not limited to the performance of flaggingservices described in this Agreement and the procurement ofGoods as applicable.

Supplier: the subcontractor itself, its employees, authorizedagents, officers or any other person working under its controland/or supplying Services to the Customer pursuant to thisAgreement.

2 AGREEMENT2.1 Under and subject to the terms, conditions and

provisions of this Agreement, the Supplier agrees toperform the Services described in Attachment 1 ofthis Agreement.

2.2 The Customer agrees to pay the Supplier the sums ofmoney mentioned in Attachment 2 of thisAgreement, at the time, in the manner and subject tothe terms and conditions hereinafter set forth.

3 SERVICES3.1 The Services to be rendered under this Agreement

shall comply in all respects with the requirements ofthis Agreement. The Services are specificallydescribed in Attachment 1 of this Agreement.

4 EFFECTIVE DATE4.1 This Agreement shall become effective as the

execution of this Agreement or the commencementof the Service or, whichever occurs first. However, due to the fact that the Supplier may have started toprovide the Services before the Effective Date, theparties agree that the obligations resulting from theServices will be retroactive to the date the Supplierstarted the Services.

5 REPRESENTATIONS AND OBLIGATIONS5.1 The Supplier represents and warrants to the

Customer that it is qualified to perform the Services.

5.2 The Supplier shall comply with the requirements setforth in this Agreement.

5.3 The Supplier represents and warrants that it willrender the Services in accordance with NCTDapproved work plans.

6 CONFIDENTIALITY6.1 The Supplier acknowledges that each Party is and

shall remain the sole and exclusive owner of any ofthat Party’s Confidential Information as hereunderdefined.

6.2 During the term of this Agreement and thereafter, each Party shall keep secret and shall not convert toits own use or the use of others, or disclose orconvey to any third party any ConfidentialInformation unless duly authorized in writing by theother Party. Such Confidential Information includesbut is not limited to information, knowledge, data, document or property designated as secret, proprietary, the Customer or Supplier private, orconfidential by the Customer or the Supplier or byany of their respective employees or by any otherperson, entity or company with which a Party doesbusiness, or any information concerning the conductor details such Party’s past, present or futurebusiness which the other Party may have or obtainin the exercise of its functions.

6.3 Upon written request by a Party, or within fifteen15) Days of the termination or expiration of this

Agreement, the other Party shall return all tangibleforms of the former’ s Confidential Informationincluding any and all copies thereof) in its

possession.

7 TERM7.1 This Agreement is effective starting from the Effective

Date and shall continue for a period of seven ( 7) years

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Terms and Conditions –NCTD O&M Flagging Rev. 0 – 8/2/2016

after which the initial term may be extended by anadditional three (3) year term.

8 COMPENSATION8.1 The hourly rate for flagging is $US 68.52 and the hourly

rate for signal is $US 72.54. Rates will be escalated onan annual basis at the beginning of each financial yearpursuant to the Master Contract. The escalation rateshall be the BLS Consumer Price Index for San Diego. The adjustment amount shall not exceed 3%\.

8.2 The Compensation mentioned above does notinclude any federal, provincial ( state) or any otherapplicable taxes.

8.3 Payment of the Compensation is as follows:

The Supplier shall submit a monthly invoice to theCustomer.

a) This invoice shall itemize the hours workedper person per day during the precedingmonth, in connection with the Servicesrendered by the Supplier;

b) This invoice shall clearly indicate where theServices were rendered; and

c) Any amount of tax applicable on the Servicesrendered by the Supplier shall be indicatedseparately on the invoice.

8.4 The Customer shall pay the invoice submitted by theSupplier no more than thirty (30) Days following itsreceipt by the Customer.

9 DEFAULT OF SUPPLIER9.1 If the Supplier fails to provide the Services or if the

Supplier violates any material term of thisAgreement, the Customer may give Notice to theSupplier of such default, specifying the same and, ifthe Supplier fails to remedy said default within aperiod of thirty (30) days of such Notice, or wheresuch default is not susceptible of remedy withinthirty (30) days the Supplier fails to take steps toremedy such default within the thirty (30) period, the Customer shall notify NCTD.

10 CUSTOMER'S RESPONSIBILITIES10.1 The Customer agrees to cooperate with the Supplier,

so that the Supplier is able to assume itsresponsibilities effectively.

11 TERMINATION OF AGREEMENT11.1 The Customer may terminate this Agreement or any

Exhibit at any time upon a Notice of thirty ( 30) days. If the Supplier is not in default under thisAgreement the Customer’ s shall pay the Supplier inaccordance with Section 9 for the hours worked andexpenses incurred by the Supplier together with allcosts incurred by the Supplier as a result of suchtermination.

11.2 Upon receipt of the said Notice, the Supplier shalltake the necessary measures to end the Services inan orderly, rapid and cost-efficient manner.

11.3 The Supplier may at any time after the effective dateterminate this Agreement if the Master Contract isterminated.

12 CANCELLATION

12.1 The Customer may cancel any or all part of theServices scheduled to be performed in accordancewith an NCTD approved work plan by giving anotice of no less than 72 hours to the Supplier. AnyServices cancelled with less than 72 hours’ noticeshall be invoiced as Services provided and paid inaccordance with Section in 9.

13 NOTICES13.1 All Notices required in accordance with this

Agreement, shall be submitted in writing and shallbe sent by certified mail to the following recipient:

Supplier: Bombardier Mass Transit Corporation1501 Lebanon Church RoadPittsburgh, PA 15236Attention: Brian Doohan, General ManagerTel.:760-445-6819Fax

copy to: Bombardier Transportation Canada Inc. Bombardier Transportation North America1101 Parent StreetSaint-Bruno, Quebec, Canada J3V 6E6

Attention: Contracts & Legal AffairsFax: (450) 441-3093

Customer: __________________

Attention: ____________________________________ Tel: _________________________________________ Fax: _________________________________________

or to another address given by either party in writing.

14 GOVERNING LAW14.1 This Agreement shall be construed and interpreted

according to the laws of the State of California andis specifically excluding from application to thisAgreement the United Nations Convention on theInternational Sale of Goods.

15 INDEMNIFICATION15.1 To the extent not arising out of or in consequence of

the Customer’ s negligence, gross negligence orwillful misconduct, the Supplier shall indemnify, defend and hold harmless the Customer and itsofficers, agents and/or employees against all suits, claims, or liability of every name and nature, for ordue to any breach of contract, injuries to personsincluding death or damage to property arising out ofor in consequence of the Supplier’s negligence, gross negligence and willful misconduct in theperformance of the Services covered by thisAgreement.

15.2 In no event shall the liability incurred by theSupplier to the Customer in connection with any andall contractual remedies provided to the Customerhereunder exceed the total annual value of thisAgreement; provided, however, that such limitationon liability shall in no event include damagespayable or liability incurred as a result of third partyclaims. Furthermore, under no circumstance shallthe Supplier be liable for remote, indirect, special, punitive, exemplary, incidental, speculative orconsequential damages (including without limitationloss of revenue and lost profit, lost opportunity, economic loss, overhead expenses, business

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interruption, loss of use, loss of productivity, downtime or damage to reputation or goodwill) irrespective of the nature of the claim asserted.

16 APPROVAL OF WORK16.1 The Services are subject to approval by the

Customer. Such approval shall not relieve theSupplier of its obligations under this Agreement.

17 MODIFICATION

17.1 Amy modification to the Services or this Agreementshall be subject to agreement between the Partiesand formalized in an Amendment executed by bothParties.

17.2 The Customer shall provide a schedule adjustmentor additional compensation to the Supplier via theprocess described in section 20.1 in the event achange in federal, state and local laws, ordinances, rules, regulations and orders following the date ofthe submittal of the Supplier’s quote, impacts thescope of the Services to be performed or the projectschedule of this Agreement.

18 DISPUTE18.1 Dispute Resolution

18.1.1 Any claim or dispute of any nature by theSupplier, including any technical orcommercial issue related to the Services and theextent of Supplier’s obligations under thisAgreement, must be brought to the attention ofthe Customer in writing, within ten ( 10) Daysof the event which gave rise to the claim ordispute, unless otherwise requested earlierpursuant to this Agreement. Furthermore, within twenty (20) Days after asserting a claimor dispute against the Customer, the Suppliershall provide the Customer with all of therelevant information and documentation insupport of its position, and referencing thespecific clauses and/or sections of theAgreement backing up their claim.

18.1.2 Any claim or dispute arising at any time underthis Agreement, including without limitationany differing opinion that Parties may have inrelation to the interpretation of the Agreement, which is not disposed of by agreement of theParties, shall be decided in the first instance bythe Customer, which shall reduce its decision towriting. The decision of the Customer inrelation to any claim or dispute shall be finaland binding unless, within thirty ( 10) Daysfrom date of notification of the decision, or inany longer period of time confirmed by theCustomer in writing, the Supplier delivers tothe Customer a written notice of rejection ofsuch decision, stating that it considers thematter as a claim or dispute that must beresolved accordingly with clause 21.1.3

18.1.3 Any dispute or claim arising out of or relating tothe Agreement, or the breach thereof, shall befinally settled by arbitration administered bythe American Arbitrators Association inaccordance with its Commercial ArbitrationRules, including the Emergency Interim ReliefProcedure, and judgment on the award rendered

by the arbitrator(s) may be entered in any courthaving jurisdiction thereof. The location of thearbitration will be in the State of Californiaunless otherwise agreed by the Parties. Decision of the arbitrator shall be final andbinding. It is however expressly agreed andunderstood that any arbitration or courtproceeding arising out of a dispute under thisAgreement may be joined with arbitration orcourt proceeding brought under the MasterContract, in accordance with the rules set by it. Nothing in the present clause precludes theParties from informally resolving a claim ordispute or prevents a negotiated settlement of aclaim or dispute prior to resolution inaccordance with the above procedure.

18.1.4 Notwithstanding any other clause of theAgreement, any disputes between the Supplierand the Customer in which NCTD may beimpacted or which may impact the Customer’ sobligations or the Supplier’s obligationstowards NCTD will be heard according to theprocess detailed in the Master Contract.

18.2 Performance of Obligations during Dispute

18.2.1 Notwithstanding the pending of a final settlementof any dispute, without prejudice to any Party’srights, both Parties shall proceed diligently withthe performance of this Agreement.

19 MISCELLANEOUS

19.1 Interpretation. Titles, subtitles, headings, subheadings and running headers, printed herein aremerely for the convenience of the parties and shallnot be deemed to define, limit or describe the scopeor the purpose of any part of this Agreement.

19.2 Renunciation. Failure by one of the parties torequire the implementation of any provision of thisAgreement shall not constitute a renunciation orrelinquishment of any of the provisions in thisAgreement, and the said provisions shall remaineffective at all times.

19.3 Validity. Each of the provisions of this Agreementapplies insofar as permitted by law and the nullity ornon application of a provision in part or in itsentirety shall not modify the application of theremaining part of that or any other provision.

19.4 Modification. No modification or addition to thepresent Agreement shall be valid unless it issubmitted in writing and duly signed by anauthorized representative of both parties.

19.5 Employer-employee relationship. Notwithstandingany provision herein no employer-employee relationis created between the Customer and the Supplier. Itis not the intention of the parties to create apartnership or a joint agreement with a third party, or to contract obligations or liabilities in the name ofthe other party.

19.6 Compliance with Laws. The Supplier shallobserve and comply and shall remain fully informedwith all applicable federal, state and local laws,

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ordinances and regulations that affect itsperformance of the Services under this Agreement

19.7 Successors. This Agreement is binding upon theparties hereto and their respective successors andpermitted assigns, as the case may be.

19.8 Consideration. Time is of the essence in thisAgreement.

19.9 Assignment. This Agreement and the interest andobligations contained herein shall not be assigned ortransferred by the Supplier without the prior writtenconsent of the Customer, which consent shall not beunreasonably withheld. Notwithstanding theforegoing, an assignment or transfer to any of theSuppliers Group Companies may be undertakenupon written notice to the Customer.

19.10 Survival of obligations. Representations, guarantees and promises of each party hereincontained, or in any document or deed delivered invirtue of this Agreement, shall remain in effect eventhough the transactions herein contained have beencompleted. Furthermore, the provisions as set forthin Sections 5, 6, 11, 16, 17, 18 and 20 shall remainin effect despite the termination of this Agreement.

19.11 Insurance. Without prejudice to the right of theCustomer to be indemnified by the Supplier, theSupplier shall maintain, at its own cost, during theentire term of this Agreement, the followinginsurance coverage:

Worker’s Compensation as per statutory amountsprescribed by the State of California and employer’ sliability insurance with coverage of at least1,000,000 for each accident, injury, or illness. The

Supplier shall provide Worker’s CompensationInsurance in accordance with the laws of the State ofCalifornia and in amounts sufficient to secure thebenefits of the California Worker’s Compensationlaw for all employees. If subletting any of the work, the Supplier shall ensure that the employees of thesubcontractors are covered by similar insurance. TheSupplier shall also ensure that any equipment rentalagreements that include operators who areemployees of independent contractors, soleproprietorships or partners are covered by similarinsurance. Commercial General Liability Insurance with limitsof not less than $5,000,000 in the aggregate, for anyone occurrence with respect to loss or damage toproperty and death, or injury to persons arising outof bodily injury and property damage, includingcontractual liability. The Supplier shall provideconfirmation the policy does not contain anexclusion for work being done within fifty feet (50’) of the right of way. Commercial Automobile Liability Insurancecovering the ownership, maintenance or use of allowned, non-owned and hired vehicles used in theperformance of this Agreement, with limits of notless than $ 2,000,000 combined single limit forbodily injury and property damage liability.

19.12 Force Majeure. The Supplier will not beresponsible of the non-performance of the Servicesunder this Agreement due to event of the nature of a

Force Majeure. However, it is understood that in theevent that the Supplier foresees any impediment tothe execution of the Services, it shall immediatelyadvise the Customer in writing of such impediment.

19.13 Communication. Neither party shall releasematerial relating to this Agreement or its subjectmatter, including but without limitation newsreleases, photographs, films, advertisements, publicannouncements and denials or confirmation of suchpublic announcements, without the other’s priorwritten consent.

19.14 Trademarks. Supplier shall not, without the priorwritten consent of the Customer which shall be atthe Customer's sole discretion, use any trademarksor trade names of the Customer or any of itsaffiliates. The Customer shall not, without the priorwritten consent of the Supplier which shall be at theSupplier's sole discretion, use any trademarks ortrade names of the Supplier or any of its affiliates. All requests for permission to use a Party’strademarks and trade names shall be accompaniedby the proposed text or document in which the otherParty desires to use same.

19.15 Precedence. In the event of conflict between theExhibit and the terms and conditions of thisAgreement, the precedence of documents shall be: 1- The terms and conditions set forth herein; and 2- the Exhibit.

19.16 Previous agreements. This Agreement supersedesand replaces all previous proposal, negotiation, memorandum of understanding, correspondence andagreements executed between the parties concerningthe subject matter of this Agreement.

19.17 Counterparts. This Agreement may be signed incounterparts, and each counterpart, once signed anddelivered, is deemed to be an original; however, allof the counterparts constitute one single deed.

IN WITNESS WHEREOF, the parties have signed this Agreementas of the date set forth herein.

Customer’ s Full Legal Name:____________________________

Signature: _________________ Name: ____________________________________________ Title: ____________________________________________ Date:

Bombardier Mass Transit Corporation

Signature: _________________ Name: Title: Date:

Signature: __________________ Name: Title: Date: _

attachment 1 support services scope of...

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