invitation for bids for delivery of bulk fuel and

IFB20190329TJPAMC of 45

The Public Transportation Services of the Transit Joint Powers Authority for Merced County

369 W. 18th Street -- Merced, CA 95340 -- (209) 723-3100 -- (209) 723-0322 fax -- mercedthebus.com

Release Date: March 29, 2019 Project No. IFB20190329TJPAMC

Invitation for Bids

for Delivery of Bulk Fuel and Lubricants at Public Transit Facility

Notice is hereby given that Bids will be received at the Transit Joint Powers Authority for Merced County (TJPAMC), a California Joint Powers Authority, for performing all work necessary in accordance with the Requirements specified herein. Please carefully read and follow the instructions provided. Bidders are responsible for making certain that their Bid documentation is complete and is received by TJPAMC on or before the closing deadline. Bids received after the closing deadline will be rejected. Bids shall be clearly marked as follows: Delivery of Bulk Fuel and Lubricants at Public Transit Facility – Submission Deadline April 12, 2019 at 3:00 p.m. and shall be mailed or delivered to: Merced County Association of Governments Attn: Alicia Ochoa-Jones, Purchasing and Contracts Manager 369 West 18th Street Merced, CA 95340 Bids will be publicly opened and read on April 12, 2019 at 3:00 p.m. at 369 W. 18th Street, Merced, CA 95340. Bids must remain effective for 90 days from Bid opening.

The Merced County Association of Governments Purchasing Policy and the TJPAMC Procurement Manual for Federally Funded Projects and all of their provisions are incorporated by this reference. Bidders are hereby notified this project will be funded in part by the Federal Transit Administration. Therefore, Bidders of this project are hereby bound by all applicable federal laws, regulations, and certifications. TJPAMC is not liable for any costs incurred by Bidders in responding to this Request for Bids (IFB). Bidders are hereby notified that Bids become public record. Bidders are to clearly identify any information that is confidential and/or proprietary. TJPAMC is not responsible or liable for the disclosure of any information that is not clearly labeled as confidential and/or proprietary. In compliance with Title 49 CFR Part 26, Disadvantaged Business Enterprise’s (DBE) are encouraged to submit a Bid and will be afforded full opportunity to participate in this solicitation. The resulting contract from this solicitation has no specific contract DBE goal. However, TJPAMC has an overall DBE goal of 1%. Note that prospective Bidders will not be required to submit good faith efforts. Inquiries are to be directed to Alicia Ochoa-Jones, Purchasing and Contracts Manager, Merced County Association of Governments, via email at [email protected].


TABLE OF CONTENTS

Cover Page 1

Table of Contents 2

Bidder’s Submittal Checklist 3

Definitions 4

Section I – General Information 5

Section II – Requirements 8

Section III – Submittals 14

Section IV – Selection Process 16

Pricing Schedule 17

Certification 19

Nondebarment Certification 20

Lobbying Certification 22

Disadvantaged Business Enterprise Program Bidders List Form 23

References List 25

Protest Procedures 26

Federal Contract Provisions 28

Sample Agreement 39


BIDDERS SUBMITTAL CHECKLIST This checklist is provided to assist Bidders with submitting a complete Bid. Bidders are to submit Bid as noted below and are to include this checklist with Bid.

1. _____ Cover Letter

2. _____ Bidders Submittal Checklist

3. _____ Table of Contents

4. _____ Tab One – Certification, Nondebarment Certification, Lobbying Certification, DBE Bidders List Form, and References List

5. _____ Tab Two – Organization, Capability, and Experience

6. _____ Tab Three – Response to Requirements

7. _____ Tab Four – Pricing Schedule

Non-submittal of any requested item may be considered non-responsive.


DEFINITIONS Agreement – The Agreement means the contract between TJPAMC and the selected Proposer. Term may be used interchangeably with Contract. Authorized Representative – Person who has the legal authority to enter into and sign contracts on behalf of the organization. Bidder – A person, partnership, firm, or corporation submitting a Bid with the intention of obtaining a TJPAMC contract. Closing Deadline – The last day and time the Bid must be received in the office at 369 West 18th Street, Merced, California 95340. Contract – The Contract means the agreement between TJPAMC and the selected Bidder. Term may be used interchangeably with Agreement. Contractor – The Bidder awarded the Contract derived from this IFB. MCAG – Merced County Association of Governments, a Joint Powers Authority, established under California Government Code Section 6500 et seq. Subcontractor(s) – Any person, entity or organization, to which Contractor, or TJPAMC, has delegated any of its obligations hereunder. TJPAMC – Transit Joint Powers Authority for Merced County, a California Joint Powers Authority and an affiliate agency of the Merced County Association of Governments.


SECTION I – GENERAL INFORMATION 1.1 PURPOSE AND BASIS OF AWARD

TJPAMC is seeking Bids from qualified Bidders to provide delivery of bulk fuel and lubricants to 1950 Wardrobe Avenue, Merced, CA 95341 as described in Section II of this RFP. TJPAMC intends to use the results of this IFB to award a contract to the responsive, responsible, and lowest price bidder. 1.2 AGENCY INFORMATION TJPAMC is a California Joint Powers Authority formed in 1996 from the consolidation of four former local public transit service providers. Today, TJPAMC, also known as “THE BUS”, is the single public transportation provider for Merced County. TJPAMC is comprised of seven member agencies: City of Atwater, City of Dos Palos, City of Gustine, City of Livingston, City of Los Banos, City of Merced, and the County of Merced. TJPAMC is governed by the Transit Joint Powers Authority for Merced County Governing Board. With a fleet of approximately 64 buses, fixed route and paratransit services are provided throughout Merced County, including the six incorporated cities and most unincorporated communities, with connections into neighboring Stanislaus County. For more information, visit TJPAMC’s website at http://www.mercedthebus.com/. 1.3 DURATION The contract term is anticipated to commence July 1, 2019 and end June 30, 2022 and is contingent upon available funding and successful performance. Additional terms may be as agreed upon, shall be based on available funding and successful performance and shall not exceed four (4) additional one (1) year terms. The contract will be a fixed price contract for the full term, including option years, and include agreed upon economic price adjustments related to the Oil Price Information Service or equivalent daily average rack price for Stockton, California . 1.4 IFB SCHEDULED ACTIVITIES To the extent achievable, the following schedule shall be used for the procurement process. TJPAMC reserves the right to modify the dates below as necessary.

a. IFB Distributed March 29, 2019 b. Questions/Clarifications due by April 3, 2019, 12:00 p.m. c. Addendum(s) and Responses posted by April 5, 2019 d. Deadline to Submit Bid and Bid Opening April 12, 2019, 3:00 p.m. e. Notice of Intent to Award Week of April 15, 2019 f. Governing Board Meeting May 16, 2019 g. Notice of Award May 17, 2019 h. Contract Execution June 2019 i. Start of Contract July 1, 2019


1.5 QUESTIONS, CLARIFICATIONS AND/OR REVISIONS

Bidders are expected to raise any questions, noted errors, discrepancies, ambiguities, exceptions, additions or deficiencies they have concerning this IFB, including insurance requirements and contract template, via email to [email protected] no later than 12:00 p.m., on March 27, 2019. If a Bidder fails to notify TJPAMC of any condition stated above that reasonably should have been known to the Bidder, and if a contract is awarded to that Bidder, the Bidder shall not be entitled to additional compensation or time by reason of the error or its correction. Revisions to this IFB will only be made by official addendum issued by TJPAMC. Addenda will be posted by March 29, 2019. Bidders are responsible for checking the website for addenda prior to submitting their Bid. Failure to acknowledge addenda may disqualify a Bid. As such, Bidders are advised to review the website prior to the close of this Bid at http://www.mercedthebus.com/bids.aspx. Bidders are encouraged to sign up for “Notify Me” on the website to receive emails, or a text, when items are posted relevant to IFB’s. 1.6 WITHDRAWAL OF BIDS Bids shall be irrevocable unless withdrawn prior to the closing deadline. Bidders may withdraw a Bid, in writing, at any time up to the closing deadline. A written withdrawal notice must be received by TJPAMC at 369 W. 18th Street, Merced, California, 95340. The notice must be signed by an authorized representative. If a previously submitted Bid is withdrawn prior to the closing deadline, the Bidder may submit another Bid at any time up to the closing deadline. 1.7 PROTEST PROCEDURES Notice of intent to protest must be made in writing and conform to the requirements of TJPAMC Protest Procedures, included herein on page 26. 1.8 FALSE OR MISLEADING STATEMENTS Bids which contain false or misleading statements, or which provide references that do not support an attribute or condition claimed by the Bidder, shall be rejected. 1.9 RIGHT TO REJECT OR ACCEPT BIDS AND RIGHT TO CANCEL TJPAMC reserves the right to reject any or all Bids or any part thereof, to waive any informalities or minor irregularities in the Bids, and to make an award on the basis of suitability, quality of service(s) to be provided, and ability to perform the Requirements. TJPAMC also reserves the right to cancel this IFB in part or in its entirety. 1.10 DISPUTE RESOLUTION, ATTORNEY FEES, JURISDICTION, AND VENUE In any action, suit, or proceeding arising out of or in any way connected with the performance of the Agreement contemplated herein, the prevailing party shall be entitled to recover reasonable attorney's fees and costs. Notwithstanding any other provision of the Agreement contemplated herein, any


disputes concerning any question of fact or law relating to the Agreement contemplated herein, or any litigation or arbitration arising out of the Agreement contemplated herein, shall be interpreted pursuant to California law, subject to the jurisdiction of the Superior Court of California, and venued in the County of Merced. CONTRACTOR expressly waives federal jurisdiction.


SECTION II – REQUIREMENTS

2.1 SCOPE OF WORK

TJPAMC requests the purchase and delivery of bulk fuels and lubricants. TJPAMC shall place orders on an as needed basis and pre-determined basis, throughout the year. TJPAMC maintains two fuel storage tanks. These tanks store bulk fuel used to fuel TJPAMC busses and vehicles. As well as two engine oil tanks for each type of oil that connects to our air and lube system and everything else connects with 55-gallon drums. CONTRACTOR shall supply the 275-gallon tote with the containment system to be refilled for DEF. 2.2 DELIVERY, SCHEDULE, AND ADDRESS

CONTRACTOR shall deliver fuels and lubricants to TJPAMC, F.O.B. Merced, within the delivery schedules specified below. Pre-determined scheduled deliveries shall be made Monday through Friday between the hours from 7:30 a.m. to 3:00 P.M., excluding all major holidays. For emergency deliveries, CONTRACTOR shall have the ability to supply fuel twenty-four (24) hours per day, seven (7) days per week.

ADDRESS Delivery Schedule 1950 Wardrobe Avenue, Merced, CA 95341 As Needed (within 24 hours of a faxed order) 2.3 WARRANTY All fuel deliveries shall follow the Department of Transportation (DOT) guidelines for fuel transport. Bidder shall attach to their bid that all fuel transport shall meet DOT guidelines, and that fuel storage transport vessels shall meet all federal, state, county, and city guidelines. Bidder shall attach to their bid, the manufacturer’s product warranty, terms and conditions, for fuel and lubricants. 2.4 ENVIRONMENTAL PROTECTION AGENCY (EPA) REQUIREMENTS

All fuels shall meet EPA requirements for sulfur, cetane index and aromatic content, and shall meet all San Joaquin Valley Air Pollution Control District requirements.


2.5 PRODUCT SPECIFICATIONS

Bulk Fuels Product Description Specifications Shipping

Diesel Fuel No. 2 Clear Must meet current engine/vehicle manufacture’s specifications

Truck/Trailer

Unleaded Gasoline 87 Octane Must meet current engine/vehicle manufacture’s specifications

Truck/Trailer/ Bobtail

Diesel Exhaust Fluid Diesel exhaust fluid Aqueous urea solution of 32.5% high purity urea and 67.5% deionized water

Truck/Trailer/ Bobtail

Lubricants

Product Description Specifications Shipping Engine Oil 15w40 ashless CJ-4 Bulk pumped

into tanks Engine Oil 5w30 synthetic blend GF-5/SN Bulk pumped

into tanks Synthetic Transmission Fluid

Transynd, BP Autran, Emgard 2805 or equivalent

Allison TES295 and TES468 approved fluid

Drum

ATF Performance 500 Valvoline maxlife

Must meet both Dexron VI and Mercon V specifications

Drum

Red Grease NLGI2 Drum Coolant Ethylene glycol/water 50/50

mix Heavy duty Universal coolant mix

Drum


2.6 ESTIMATED ANNUAL USAGE

Bulk Fuels Product Description Unit of Issue Est. Annual

Usage Diesel Fuel No. 2 Clear Gallon 237,000 Unleaded Gasoline 87 Octane Gallon 235,700

Lubricants Product Description Specifications Est. Annual

Usage Engine Oil 15w40 ashless CJ-4 11,600 Gallons Engine Oil 5w30 synthetic blend GF-5/SN 8,800 Gallons Synthetic Transmission Fluid

Transynd, BP Autran, Emgard 2805 or equivalent

Allison TES295 and TES468 approved fluid

1320 Gallons

ATF Performance 500 Must meet both Dexron VI and Mercon V specifications

1320 Gallons

Red Grease NLGI2 720 Gallons Diesel Exhaust Fluid Diesel exhaust fluid Aqueous urea solution of

32.5% high purity urea and 67.5% deionized water

5,100 Gallons

Coolant Ethylene glycol/water 50/50 mix, heavy duty universal mix

Heavy Duty universal mix 5,280 Gallons

2.7 TANK CONTENTS AND SIZE Diesel, No. 2 Clear, Ultra Low Sulfur: Tank Size (Gallons): Above ground (1) 10K Tank

Gasoline, Unleaded, 87 Minimum

Octane Tank Size (Gallons): Above ground (1) 8K Tank

Diesel Exhaust Fluid Tank Size (Gallons): 275 - Gallon Container

Provided by CONTRACTOR

Engine Oil 15w40 Ashless Tank Size (Gallons): 240 - Gallon Container

Engine Oil 5w30 synthetic blend Tank Size (Gallons): 240 - Gallon Container


2.8 FUEL TRANSPORT

CONTRACTOR shall follow all rules and regulations set forth by the DOT for transporting and delivering fuels and lubrications. 2.9 FUEL CARD PROGRAM

CONTRACTOR shall provide fuel for TJPAMC’s fleet of seven (7) transit vehicles which are stored off site in Los Banos, CA through a fuel card program. CONTRACTOR shall provide approximately 2,200 gallons of 87 octane unleaded gasoline on a monthly basis. CONTRACTOR shall also provide fuel through the fuel card program as a backup in a situation where on-site fuel tanks malfunction. Fuel to be provided can be Octane unleaded gasoline and/or Ultra Low sulfur clear Diesel for the Merced fleet. During the resulting price agreement, no guarantee can be given that this total will be reached or that it will not be exceeded. CONTRCTOR agrees to furnish more or less, at the unit prices quoted, in accordance with TJPAMC’s actual requirements, throughout the contract period. 2.9.1 CONTRACTOR shall track fuel dispensed utilizing a fuel management system and software. The

fuel management system shall include, but not be limited to the following features: • The system shall provide monitoring, configurable reporting ,and real time oversight of

the fuel service by TJPAMC. • The system shall capture fuel and vehicle usage data including type and quantity of fuel,

transaction cost, transaction date and time, location, and vehicle odometer reading. • The system shall export fuel and vehicle data in a Microsoft Excel format or other format

approved by TJPAMC. • The system shall be web-accessible by TJPAMC staff without requiring TJPAMC to

purchase or maintain software or hardware. 2.9.2 CONTRACTOR shall provide seven (7) cards at no charge, additional and/or replacement cards

shall be at no charge. 2.9.3 CONTRACTOR shall provide access 24-hours per day, 365 days per year to TJPAMC’s transit

vehicles. 2.9.4 CONTRACTOR shall track fuel dispensed utilizing a fuel management system and software. The

fuel management system shall include, but not be limited to the following features: • The system shall provide monitoring, configurable reporting, and real time oversight of

the fuel service by TJPAMC. • The system shall capture fuel and vehicle usage data including ty pe and quantity of fuel,

transaction cost, transaction date and time, location, and vehicle odometer reading. • The system shall export fuel and vehicle data in a Microsoft Excel format or other format

approved by TJPAMC. • The system shall be web-accessible by TJPAMC staff without requiring TJPAMC to

purchase or maintain software or hardware.


2.10 USAGE REPORT CONTRACTOR shall furnish TJPAMC with usage reports upon request. Reports shall list each item by industry nomenclature, unit of issue and quantity delivered. The usage report shall be a comprehensive report, listing usage by TJPAMC and the usage summary year-to-date. The report shall be delivered to the following address: Transit Joint Powers Authority for Merced County, Attn: Artis Smith, 369 W. 18th St., Merced, CA 95340.

2.11 ADDITIONAL AND EMERGENCY PROTECTION

Whenever the CONTRCTOR has not taken sufficient precautions for the safety of the public, or property and structures adjacent to the delivery site, TJPAMC may provide suitable protection with or without first notifying CONTRACTOR. The cost and expense of such protection provided by TJPAMC shall be borne by CONTRACTOR. TJPAMC shall deduct the cost of such protection from any monies due or to become due to CONTRACTOR. 2.12 BARRACADES

CONTRACTOR shall provide and place barricades and/or safety ribbon as necessary to restrict access to the fueling areas. CONTRACTOR shall be responsible for maintaining access control of the fueling area from the time of delivery arrival to the time of delivery completion. 2.13 FUEL DELIVERY PERSONNEL

If any person employed by CONTRACTOR fails or refuses to carry out the direction of TJPAMC or appears to be incompetent or acts in a disorderly or improper manner, that person shall be discharged immediately from the site on the request of TJPAMC’S contracted transit service provider and/or TJPAMC Manager, and such person shall not again work at TJPAMC site. 2.14 PRICING FORMAT AND PRICING SCHEDULE

A. Bulk Fuels: Bidders’ per gallon mark-up margin shall be the only price used in determining the

overall lowest cost to TJPAMC for bulk fuels. During the course of any resultant contract, fuel pricing shall be based upon the Oil Price Information Service (OPIS) UNBRANDED LOW for the Stockton area, on the scheduled day of delivery. T his price, plus all applicable taxes and Government fees, along with the CONTRACTOR’s mark-up margin, shall be the price billed to TJPAMC. Documentation of the OPIS UNBRANDED LOW for the Stockton area, including the date and time, shall be included with each billing submitted to TJPAMC.

B. Lubricants: Determining the overall lowest cost to TJPAMC, TJPAMC shall multiply the item quantity by the item unit price, and then calculate applicable sales tax.

C. Fuel Card Program: The current OPIS or equivalent daily average rack price for Stockton, California (975) shall be the reference price.


• CONTRACTOR’S price shall consist of the aforementioned daily average, plus or minus a stated amount, which shall be applied to the published average to establish cost per gallon of fuel. The price shall remain firm for the term of the contract.

• If OPIS or equivalent discontinues publication of contractual based pricing index, TJPAMC and CONTRACTOR shall negotiate on a new pricing index. If TJPAMC and CONTRACTOR cannot agree on a new pricing methodology, TJPAMC may terminate the contract.

Unless otherwise stated, the CONTRACTOR agrees that, in the event of a price decline, the benefit of such lower pricing shall be extended to TJPAMC. Bidders shall use the Pricing Schedule provided in IFB pages 17-18 to present bid pricing. No other form or format shall be accepted. 2.15 INSPECTION OF SERVICES Whenever the product or service provided by the supplier has been delivered to The Bus Yard, delivery point, the designated agent shall make the final inspection and acceptance. If upon initial inspection the product or service is found to be defective in its construction or deficient in any of the requirements of this specification, the supplier shall remedy or remove said product in an acceptable manner at the supplier's expense. No compensation shall be allowed for such correction of product, labor, or transportation of product. 2.16 FAILURE TO PERFORM SATISFACTORY AND BILLING ADJUSTMENTS It is agreed and understood that if the CONTRACTOR fails to perform the work as specified herein, TJPAMC’s representative may (1) consent to accept such unsatisfactory service with an appropriate adjustment in contract price, based on established cost factors, (2) have such required work done by TJPAMC forces or otherwise, and charge the cost thereof to the CONTRACTOR, or (3) recommend termination of contract between CONTRACTOR and TJPAMC. Those discrepancies and deficiencies in the work that remains uncorrected after the date set for correction may be the necessary justification for a billing adjustment in the month following the occurrence. Unless otherwise negotiated, billing adjustments for this incomplete or uncorrected work shall be permanent retention of 100% of the estimated monthly cost for the work not corrected or completed.

2.17 CONTRACTORS RESPONSIBILITY FOR DAMAGES If CONTRACTOR damages any property belonging to TJPAMC or private property by the CONTRACTOR or his employees or agents, the CONTRACTOR will be required to make repairs immediately. TJPAMC may either retain from the money due to CONTRACTOR an amount sufficient to repair the damage or require CONTRACTOR to repair the damage to the satisfaction of TJPAMC at CONTRACTOR's expense. 2.18 CONTRACTORS RESPONSIBILTY FOR FUEL SPILLS CONTRACTOR shall be responsible for the clean up of any spills resulting from their delivery of fuel to TJPAMC’s location.


SECTION III – SUBMITTALS 3.1 GENERAL INSTRUCTIONS This section describes the required Bid format and content. The Bid must contain the requested information organized by each prescribed section. Each Bidder shall submit a complete Bid, providing all information requested with a complete description of the project plan. Failure to follow the prescribed format may result in rejection of the Bid. A Bid may be rejected if it is conditional or incomplete, or if it contains any alteration of form or other irregularities of any kind. A Bid may be rejected if any such defect or irregularity constitutes a material deviation from the submittal requirements. Bids submitted under improperly marked covers may be rejected. If discrepancies are found within the Bid, the Bid may be rejected. Bids must be typed with a minimum font size 11 and submitted on standard 8 ½” by 11” paper. Each page must be clearly and consecutively numbered. Bids must be submitted in the legal name of the authorized entity or person. 3.2 SUBMITTAL PACKAGE Bidders must submit in a sealed package one (1) paper original submittal of all materials required for acceptance of their Bid by the Bid deadline - 3:00 p.m., April 12, 2019 to: Merced County Association of Governments Attn: Alicia Ochoa-Jones, Purchasing and Contracts Manager 369 West 18th Street Merced, CA 95340 All Bids must be signed by an authorized representative and received by TJPAMC by the closing deadline. Late Bids will be rejected. Receipt of the Bid by the U.S. mail system does not constitute receipt of the Bids by TJPAMC. TJPAMC will not accept facsimile or email submitted Bids. All Bids must be packaged, sealed, and show the following information on the outside of the package:

1. Bidder’s Name and Address 2. Delivery of Bulk Fuel and Lubricants at Public Transit Facility – Submission Deadline 3:00

p.m., April 12, 2019. Bid package shall include the Bidders Submittal Checklist provided on page 3 and responses to Sections 3.3 through 3.6 of this IFB. 3.3 COVER LETTER AND BIDDER INFORMATION A one (1) page cover letter shall be submitted and include the Bidder’s contact information, specify the authorized representative, and provide a company history statement. The person authorized by the firm to negotiate a contract with TJPAMC shall sign the cover letter. The cover letter shall include the name, phone number, fax number and e-mail address of a contact person for the selection process. Bidders shall include a statement certifying TJPAMC’s insurance requirements will be met as noted in Section Five of the Sample Agreement; IFB pages 39-40.


3.4 CERTIFICATIONS, FORMS, AND REFERENCES

1) Certification, (noting any addenda - if applicable); 2) Nondebarment Certification and Other Responsibility Matters; 3) Lobbying Certification; 4) Disadvantaged Business Enterprise Bidders List Form; and 5) References

IFB Certifications must be signed by the person in the Bidder’s organization who is responsible for the decision as to the services being offered or by a person who has been authorized in writing to act as agent for the person responsible for the decision on services. Failure to provide this form/information with a submittal may disqualify the Bid. All Bidders (and subcontractor(s) if applicable), must complete a Disadvantaged Business Enterprise (DBE) Bidders List form regardless of DBE status. Bidders must supply a minimum of three (3) references and references must verify that a high level of satisfaction was provided. 3.5 RESPONSE TO SCOPE OF WORK Bidders are to describe how Section II - Requirements will be met. Bidders shall have been in business for a minimum of three (3) continuous years (immediately prior to the time of IFB submittal date) providing the types of services requested herein. 3.6 PRICING SCHEDULE Bidders must completely fill out and submit the Pricing Schedule included on pages 17-18.


SECTION IV – SELECTION PROCESS 4.1. BASIS OF AWARD TJPAMC intends to make an award to the responsive, responsible, lowest price Bidder. 4.2 RIGHT TO REJECT BIDS TJPAMC reserves the right to reject any or all Bids or any part thereof. Bids may be rejected if they show any alteration of form, additions not called for, conditional Bids, incomplete Bids, obviously unbalanced prices, erasures or irregularities of any kind. 4.3 WAIVER OF IRREGULARITIES TJPAMC reserves the right to waive any informalities or minor irregularities in the Bids and to make an award on the basis of suitability, quality of services to be provided, and ability to perform the Requirements. 4.4 REVIEW A review will be conducted with the intent of identifying the successful Bidder. Any Bid which fails to meet the submission requirements, or for which a fixed dollar amount cannot be precisely determined, may be considered non-responsive and may be rejected.


PRICING SCHEDULE PAGE 1 OF 2

Per gallon mark-up margin shall be the only price used in determining the overall lowest cost to TJPAMC for bulk fuels.

Bulk Fuel Item Estimated

Annual Quantity Unit Unit Price Mark-Up Margin

(Truck/Trailer) Diesel Fuel No. 2 Clear 237,100 Gallon $_____________/GI.

Bulk Fuel Item Estimated

Annual Quantity Unit Unit Price Mark-Up Margin

(Bobtail) Unleaded Gasoline 87 Octane 235,700 Gallon $_____________/GI. Diesel Exhaust Fluid – Aqueous urea solution of 32.5% high purity urea and 67.5% deionized water

5,100 Gallon $___________/Gl.

Lubricants

Item Estimated Annual

Quantity

Unit Unit Price

Engine Oil – 15w40 ashless 11,600 Gallon (Ship bulk) $_____________/Gl. Engine Oil – 5w30 synthetic blend

8,800 Gallon (Ship bulk) $_____________/Gl.

Synthetic Transmission Fluid – Transynd, BP Autran, Emgard 2805 or equivalent

1,320 Gallon (Ship 55- drum)

$_____________/Gl.

ATF – Performance 500 or equivalent to Valvoline maxlife

1,320 Gallon (Ship 55-drum)

$_____________/Gl.

Red Grease 720 Gallon (Ship 55-drum)

$_____________/Gl.

Lubricants Item Estimated Annual

Quantity Unit Unit Price

Coolant – Ethylene glycol/water 50/50 mix Heavy Duty

5,280 Gallons (Ship drum) $_____________/Gl.

Stated pricing shall be F.O.B. destination, 1950 Wardrobe Merced, CA 95341. Any freight/delivery changes shall be included in the unit price.

Stated pricing is net to TJPAMC, exclusive of Federal Excise tax, California State, Local, Sales and Use tax.


PRICING SCHEDULE PAGE 2 OF 2

Bidders shall submit a single firm differential price above/below the rack average Stockton, CA price for Ultra Low sulfur diesel fuel and Regular unleaded gasoline as posted in the Oil Price Information Services (OPIS).

Fuel Card Program

Product Estimated gallons monthly Firm differential pricing (+/-)

Regular Unleaded Gasoline 2,200 gallons

Fuel Card Program - Backup Product Firm differential pricing

(+/-) Regular Unleaded Gasoline

Ultra-Low Sulfur - Clear Diesel

For the basis of the award, prices shall include all costs required to perform work, including overhead, profits, services, insurance, and all other applicable costs except taxes and fees. The taxes are intentionally excluded for the purpose of price comparison only, but will be applied, as required, at invoicing.

Invoicing to include the following:

Tax or Fee Cost Per Gallon Federal L.U.S.T Tax Federal Gas Envir/Oil Spill Tax CA Envir. Surc. Gasoline Tax CA Gas Eth. Excise Tax CA Gas Eth. CLLP Fee CA State Sales Tax CA Underground Storage Tank Fee List any other applicable State or Federal Tax or Fee


CERTIFICATION To: Transit Joint Powers Authority for Merced County Attn: Artis Smith, Transit Director 369 West 18th Street Merced, CA 95340 Re: Delivery of Bulk Fuel and Lubricants at Public Transit Facility – Project No. IFB20190329TJPAMC

In compliance with submittal requirements of which this Certification is a part, the undersigned proposes to furnish all services as indicated in the enclosed submittal package in Pricing Schedule. The undersigned acknowledges receipt of the following addenda to the IFB: Addendum or Memorandum No. ____________________, dated ________________ Addendum or Memorandum No. ____________________, dated ________________ Addendum or Memorandum No. ____________________, dated ________________ I am the authorized representative with authority to sign this certification and agree that: 1. The Bid has been arrived at by the Bidder independently and has been submitted without

collusion, and without any agreement, understanding, or planned common course of action, with any other party which would obstruct fair and open competition;

2. The Bidder is legally entitled to enter into contract with TJPAMC and is not in violation of any prohibited conflict of interest, including those prohibited by the provisions of state and federal law;

3. The Bidder is willing to provide certifications and assurances in compliance with Third Party Contract Clauses/Federal Contract Provisions; and

4. The Bidder is fully informed regarding the accuracy of the above statements. NOTICE: Any agreement or collusion among Bidders or prospective Bidders which restrain, tend to restrain, or are reasonably calculated to restrain competition by agreement to respond, or to refrain from responding, or otherwise, is prohibited. _____________________________________________________________________________________ Name of Individual, Partnership, or Corporation ____________________________________________________________________________________ Address _____________________________________________________________________________________ Authorized Person (Print or Type) Authorized Signature _____________________________________________________________________________________ Title of Authorized Person Date _____________________________________________________________________________________ Email Address of Authorized Person Phone Number


NONDEBARMENT CERTIFICATION Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transactions Instructions for Certification 1. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. 2. The prospective lower tier participant shall provide immediate written notice to the person to whom this Bid is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances. 3. The terms covered transaction, debarred, suspended, ineligible, lower tier covered transaction, participant, person, primary covered transaction, principal, Bid, and voluntarily excluded, as used in this clause, have the meaning set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the person to which this Bid is submitted for assistance in obtaining a copy of those regulations. 4. The prospective lower tier participant agrees by submitting this Bid that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. 5. The prospective lower tier participant further agrees by submitting this Bid that it will include this clause titled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction,'' without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 6. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from covered transactions, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.

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NONDEBARMENT CERTIFICATION (CONTINUED) 7. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. 8. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. Certification 1. The prospective lower tier participant certifies, by submission of this Bid, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. 2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this Bid. Signature of Authorized Representative: ____________________________Date: ___________________ Name/Title: ___________________________________________________________________________ Name of Organization/Business: __________________________________________________________


LOBBYING CERTIFICATION This form is to be submitted with an offer exceeding $100,000.

The Proposer or Bidder certifies, to the best of its knowledge and belief, that:

1. No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of a federal department or agency, a member of the U.S. Congress, an officer or employee of the U.S. Congress, or an employee of a member of the U.S. Congress in connection with the awarding of any federal Contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment or modification thereof.

2. If any funds other than federal appropriated funds have been paid or will be paid to any person for

making lobbying contacts to an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this federal Contract, grant, loan or cooperative agreement, the undersigned shall complete and submit Standard Form LLL, “Disclosure Form to Report Lobbying,” in accordance with its instruction, as amended by “Government-wide Guidance for New Restrictions on Lobbying,” 61 Fed. Reg. 1413 (1/19/96). *

3. The undersigned shall require that the language of this certification be included in the award

documents for all subawards at all tiers (including subcontracts, subgrants and contracts under grants, loans and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31, USC § 1352 (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

THE PROPOSER OR BIDDER, _____________________________________________, CERTIFIES OR AFFIRMS THE TRUTHFULNESS AND ACCURACY OF EACH STATEMENT OF ITS CERTIFICATION AND DISCLOSURE, IF ANY. IN ADDITION, THE PROPOSER OR BIDDER UNDERSTANDS AND AGREES THAT THE PROVISIONS OF 31 USC §§ 3801 ET SEQ. APPLY TO THIS CERTIFICATION AND DISCLOSURE, IF ANY. Name of the Proposer’s or Bidder’s authorized official: ________________________________________ Title: ________________________________________________________________________________ Signature: _________________________________________ Date: ___________________________ * NOTE: Per paragraph 2 of the included form Lobbying Certification, add Standard Form–LLL, “Disclosure Form to Report Lobbying,” if applicable.


DBE PROGRAM BIDDERS LIST FORM

The Public Transportation Services of the Transit Joint Powers Authority for Merced County 369 W. 18th Street -- Merced, CA 95340 -- (209) 723-3100 -- (209) 723-0322 fax -- mercedthebus.com

The Transit Joint Powers Authority for Merced County (TJPAMC) as a direct recipient of Department of Transportation (DOT) federal financial assistance funding is required to create and maintain a comprehensive DBE Bidders List {49 CFR Part 26.11(c)}. The Bidders List Form will be used to determine the relative availability of Disadvantaged Business Enterprise (DBE) and non-DBEs, and will assist with establishing the agency’s triennial DBE goal. Each Bidders List is a compilation of Bidders, proposers, quoters, subcontractors, manufacturers, and suppliers of materials and services who have submitted bids during the advertising period of a specific acquisition.

Providing the following information is mandatory regardless of DBE status:

PART A: BUSINESS DATA

1. Business Name:______________________________________________________________________

2. Business Address:____________________________________________________________________ Street City State Zip 3. County Business is located in: __________________________________________________________

4. Name of Contact Person:______________________________________________________________

5. Phone: ( )____________________________ 6. Fax: ( )__________________________________

7. Email address:_______________________________________________________________________

8. Is this business a certified Disadvantaged Business Enterprise (DBE)? a. Yes * b. No * If “yes”, TJPAMC will verify via the following website: http://www.dot.ca.gov/hq/bep/find_certified.htm 9. Business Annual Gross Receipts: a. Less than $500,000 b. $500,000 to $1,000,000 c. $1,000,000 to $2,000,000

d. $2,000,000 to $5,000,000 e. Over $5,000,000 10. Age of Business:________Years________Months

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http://www.dot.ca.gov/hq/bep/find_certified.htm


DBE PROGRAM BIDDERS LIST FORM (CONTINUED)

PART B: PROJECT AND WORK DESCRIPTION

11. RFQ, IFB, OR RFP#:___________________________________________________________________

12. Project Name:______________________________________________________________________

13. Provide a brief description of scope of work, services, and/or materials to be performed/furnished:___________________________________________________________________

_____________________________________________________________________________________

_____________________________________________________________________________________

14. Will you subcontract any of your work? a. Yes * b. No * If “yes”, subcontractor(s) also required to complete the mandatory Bidders List Form, regardless of DBE status)

PART C: SIGNATURE

The undersigned declares that the information set forth on this page is current, complete, and accurate.

Authorized Signature:_______________________________________ Date:_______________________

Printed Name:______________________________________ Title:______________________________


REFERENCES LIST

REFERENCE NO. 1 - AGENCY NAME: _______________________________________________________ ADDRESS: ____________________________________________________________________________ CONTACT PERSON: _____________________________ TITLE: _________________________________ E-MAIL: ______________________________________ TELEPHONE NUMBER: ____________________ SERVICE DESCRIPTION: __________________________________________________________________ _____________________________________________________________________________________ CONTRACT DATE & AMOUNT: ____________________________________________________________ REFERENCE NO. 2 - AGENCY NAME: _______________________________________________________ ADDRESS: ____________________________________________________________________________ CONTACT PERSON: _____________________________ TITLE: _________________________________ E-MAIL: ______________________________________ TELEPHONE NUMBER: ____________________ SERVICE DESCRIPTION: __________________________________________________________________ _____________________________________________________________________________________ CONTRACT DATE & AMOUNT: ____________________________________________________________ REFERENCE NO. 3 - AGENCY NAME: _______________________________________________________ ADDRESS: ____________________________________________________________________________ CONTACT PERSON: _____________________________ TITLE: _________________________________ E-MAIL: ______________________________________ TELEPHONE NUMBER: ____________________ SERVICE DESCRIPTION: __________________________________________________________________ _____________________________________________________________________________________ CONTRACT DATE & AMOUNT: ____________________________________________________________


PROTEST PROCEDURES All protests shall reference the name of the project or procurement in question and the contract, bid or proposal reference number. Failure to comply with the time requirements specified below shall constitute grounds for TJPAMC to deny the protest without further consideration. Pre-Award Protest Procedures Any bidder or proposer who has submitted a bid or proposal to TJPAMC may file a protest of TJPAMC’s intent to award a contract provided that: 1. The bid or proposal protest is in writing; 2. The bid or proposal protest is signed by the protestor or an individual legally

entitled to act on his or her behalf; 3. The bid or proposal protest is received by TJPAMC Transit Director not more than five

(5) business days following the date of issuance of TJPAMC’s Intent to Award the Contract; and

4. The bid or proposal protest sets forth, in detail, a statement of the reason(s) for the protest, all facts and documentation supporting the protest, and legal authorities and argument in support of the grounds for the protest. Any grounds for protest not identified in the pre-award protest are waived.

Protests of TJPAMC’s Intent to Award must be personally delivered or sent by U.S. mail, postage prepaid, to:

Artis Smith, Transit Director Transit Joint Powers Authority for Merced County

369 W. 18th Street Merced, CA 95340

With Copy to:

Stacie Dabbs, Executive Director Transit Joint Powers Authority for Merced County


With Copy to:

General Counsel, Haden Law Office 2241 N Street

Merced, CA 95340 Any protest not conforming with the foregoing shall be rejected by TJPAMC as invalid. Provided that the protest is filed in strict conformity with the foregoing, TJPAMC’s Transit Director shall review and evaluate the basis for the bid or proposal protest. The Transit Director shall provide the protestor with a written statement concurring with or denying the protest. The written decision will then be provided to the protestor. Use of the above procedures shall be a condition precedent to use of the post-award protest procedures detailed below and/or the institution of any legal or equitable proceedings relative to the bid or proposal. In the event that any such legal or equitable proceedings are instituted and TJPAMC is named


as a party thereto, the prevailing party(ies) shall be entitled to recover all attorney’s fees and costs incurred in connection with the proceeding. Post-Award Protest Procedures Within five (5) business days of the contract being awarded, a bidder or proposer who has complied with the pre-award protest procedures detailed above may file a post-award protest. The post-award protest must: 1. Be in writing;

2. Be signed and dated by the bidder/proposer or someone legally entitled to act on his or her behalf; and

3. Include a detailed statement of the reason for the post-award protest and all facts and documentation supporting the bidder or proposer’s position, including any legal authorities or argument.

Post-award protests must be personally delivered or sent by U.S. mail, postage prepaid, to:

Artis Smith, Transit Director Transit Joint Powers Authority for Merced County


With Copy to:

Stacie Dabbs, Executive Director Transit Joint Powers Authority for Merced County


With Copy to:

General Counsel, Haden Law Office 2241 N Street

Merced, CA 95340 Failure to file a request for a pre-award protest shall constitute grounds for TJPAMC to deny the protest without further consideration of the grounds stated therein. Any grounds for protest that could have been, but were not, identified in the pre-award protest are deemed waived and will not be considered. Provided that the protest is filed in strict conformity with the foregoing, TJPAMC’s Executive Director or his or her designee shall review and evaluate the basis for the bid or proposal protest, together with the written statement issued by TJPAMC’s Transit Director. TJPAMC’s Executive Director or his or her designee shall issue a written statement concurring with or denying the protest. The decision of TJPAMC’s Executive Director shall be final and not subject to appeal or reconsideration. Use of the above procedures shall be a condition precedent to the institution of any legal or equitable proceedings relative to the bid or proposal. In the event that any such legal or equitable proceedings are instituted and TJPAMC is named as a party thereto, the prevailing party(ies) shall be entitled to recover all attorney’s fees and costs incurred in connection with the proceeding.


FEDERAL CONTRACT PROVISIONS This Attachment contains Federal Contract Provisions that are applicable to third party contracts with TJPAMC. Contractors must be willing to abide by all requirements and must certify and complete necessary forms for compliance with all required federal provisions. The complete Federal Transit Administration Master Agreement 25 can be found at: https://www.transit.dot.gov/funding/grantee-resources/sample-fta-agreements/fta-master-agreement-fiscal-year-2019 Implementation: Application of Federal, State, and Local Laws, Regulations, and Guidance – Section 3.(g) The Recipient agrees to comply with all applicable federal requirements and follow applicable federal guidance. All standards or limits are minimum requirements when those standards or limits are included in the Recipient’s Underlying Agreement or this Master Agreement. At the time the FTA official awards federal assistance to the Recipient in support of the Underlying Agreement, the federal requirements and guidance that apply then may be modified from time to time, and will apply to the Recipient or the accompanying Underlying Agreement, except as FTA determines otherwise in writing. Implementation: No Federal Government Commitment or Liability to Third Parties – Section 3.(l) Except as the Federal Government expressly consents in writing, the Recipient agrees that: (1) The Federal Government does not and shall not have any commitment or liability related to the Underlying Agreement, to any Third Party Participant at any tier, or to any other person or entity that is not a party (FTA or the Recipient) to the Underlying Agreement; and (2) Notwithstanding that the Federal Government may have concurred in or approved any Solicitation or Third Party Agreement at any tier that may affect the Underlying Agreement, the Federal Government does not and shall not have any commitment or liability to any Third Party Participant or other entity or person that is not a party (FTA or the Recipient) to the Underlying Agreement. Ethics, Political Activity, and Certain Criminal Activity: Lobbying Restrictions- Section 4.(c) The Recipient agrees that neither it nor any Third Party Participant will use federal assistance to influence any officer or employee of a federal agency, member of Congress or an employee of a member of Congress, or officer or employee of Congress on matters that involve the Underlying Agreement, including any extension or modification, according to the following: (1) Laws, Regulations, Requirements, and Guidance. This includes: (i) The Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352, as amended; (ii) U.S. DOT regulations, “New Restrictions on Lobbying,” 49 C.F.R. part 20, to the extent consistent with 31 U.S.C. § 1352, as amended; and (iii) Other applicable federal laws, regulations, requirements, and guidance prohibiting the use of federal assistance for any activity concerning legislation or appropriations designed to influence the U.S. Congress or a state legislature; and (2) Exception. If permitted by applicable federal law, regulations, requirements, or guidance, such lobbying activities described above may be undertaken through the Recipient’s or Subrecipient’s proper official channels. Ethics: False or Fraudulent Statements or Claims – Civil and Criminal Fraud - Section 4.(e) (1) Civil Fraud. The Recipient acknowledges and agrees that: (i) Federal laws, regulations, and requirements apply to itself and its Underlying Agreement, including the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq., and U.S. DOT regulations, “Program Fraud Civil Remedies,” 49 C.F.R. part 31. (ii) By executing the Underlying Agreement, the Recipient certifies and affirms to the Federal Government the truthfulness and accuracy of any claim, statement, submission, certification, assurance, affirmation, or representation that the Recipient provides to the Federal Government. (iii) The Federal

https://www.transit.dot.gov/funding/grantee-resources/sample-fta-agreements/fta-master-agreement-fiscal-year-2019

https://www.transit.dot.gov/funding/grantee-resources/sample-fta-agreements/fta-master-agreement-fiscal-year-2019


Government may impose the penalties of the Program Fraud Civil Remedies Act of 1986, as amended, and other applicable penalties if the Recipient presents, submits, or makes available any false, fictitious, or fraudulent information. (2) Criminal Fraud. The Recipient acknowledges that 49 U.S.C. § 5323(l)(1) authorizes the Federal Government to impose the penalties under 18 U.S.C. § 1001 if the Recipient provides a false, fictitious, or fraudulent claim, statement, submission, certification, assurance, or representation in connection with a federal public transportation program under 49 U.S.C. chapter 53 or any other applicable federal law. Record Retention and Access to Sites of Performance – Section 9 (a) Types of Records. The Recipient agrees to retain, and will require its Third Party Participants to retain, complete and readily accessible records related in whole or in part to the Underlying Agreement, including, but not limited to, data, documents, reports, statistics, subagreements, leases, third party contracts, arrangements, other third party agreements of any type, and supporting materials related to those records. (b) Retention Period. The Recipient agrees to comply with the record retention requirements in the applicable U.S. DOT Common Rule. Records pertaining to its Award, the accompanying Underlying Agreement, and any Amendments thereto must be retained from the day the Underlying Agreement was signed by the authorized FTA official through the course of the Award, the accompanying Underlying Agreement, and any Amendments thereto until three years after the Recipient has submitted its last or final expenditure report, and other pending matters are closed. (c) Access to Recipient and Third Party Participant Records. The Recipient agrees, and assures that each Subrecipient, if any, will agree to: (1) Provide, and require its Third Party Participants at each tier to provide, sufficient access to inspect and audit records and information related to its Award, the accompanying Underlying Agreement, and any Amendments thereto to the U.S. Secretary of Transportation or the Secretary’s duly authorized representatives, to the Comptroller General of the United States, and the Comptroller General’s duly authorized representatives, and to the Recipient and each of its Subrecipients; (2) Permit those individuals listed above to inspect all work and materials related to its Award, and to audit any information related to its Award under the control of the Recipient or Third Party Participant within books, records, accounts, or other locations; and (3) Otherwise comply with 49 U.S.C. § 5325(g), and federal access to records requirements as set forth in the applicable U.S. DOT Common Rules. (d) Access to the Sites of Performance. The Recipient agrees to permit, and to require its Third Party Participants to permit, FTA to have access to the sites of performance of its Award, the accompanying Underlying Agreement, and any Amendments thereto, and to make site visits as needed in compliance with the U.S. DOT Common Rules. (e) Closeout. Closeout of the Award does not alter the record retention or access requirements of this section of this Master Agreement. Right of the Federal Government to Terminate - Section 11 (a) Justification. After providing written notice to the Recipient, the Recipient agrees that the Federal Government may suspend, suspend then terminate, or terminate all or any part of the federal assistance for the Award if (1) The Recipient has failed to make reasonable progress implementing the Award; (2) The Federal Government determines that continuing to provide federal assistance to support the Award does not adequately serve the purposes of the law authorizing the Award; or (3) The Recipient has violated the terms of the Underlying Agreement, especially if that violation would endanger substantial performance of the Underlying Agreement. (b) Financial Implications. In general, termination of federal assistance for the Award will not invalidate obligations properly incurred before the termination date to the extent that those obligations cannot be canceled. The Federal Government may recover the federal assistance it has provided for the Award, including the federal assistance for obligations properly incurred before the termination date, if it determines that the Recipient has misused its federal assistance by failing to make


adequate progress, failing to make appropriate use of the Project property, or failing to comply with the Underlying Agreement, and require the Recipient to refund the entire amount or a lesser amount, as the Federal Government may determine including obligations properly incurred before the termination date. (c) Expiration of the Period of Performance. Except for a Full Funding Grant Agreement, expiration of any period of performance established for the Award does not, by itself, constitute an expiration or termination of the Award; FTA may extend the period of performance to assure that each Formula Project or related activities and each Project or related activities funded with “no year” funds can receive FTA assistance to the extent FTA deems appropriate. Civil Rights - Section 12 (a) Civil Rights Requirements. The Recipient agrees that it must comply with applicable federal civil rights laws, regulations, and requirements, and follow applicable federal guidance, except as the Federal Government determines otherwise in writing. Therefore, unless a Recipient or a federal program, including the Indian Tribe Recipient or the Tribal Transit Program, is specifically exempted from a civil rights statute, FTA requires compliance with each civil rights statute, including compliance with equity in service requirements. (b) Nondiscrimination in Federal Public Transportation Programs. The Recipient agrees to, and assures that it and each Third Party Participant will: (1) Prohibit discrimination based on race, color, religion, national origin, sex (including gender identity), disability, or age. (2) Prohibit the: (i) Exclusion from participation in employment or a business opportunity for reasons identified in 49 U.S.C. § 5332; (ii) Denial of program benefits in employment or a business opportunity identified in 49 U.S.C. § 5332; or (iii) Discrimination identified in 49 U.S.C. § 5332, including discrimination in employment or a business opportunity identified in 49 U.S.C. § 5332. (3) Follow: (i) The most recent edition of FTA Circular 4702.1, “Title VI Requirements and Guidelines for Federal Transit Administration Recipients,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance; but (ii) FTA does not require an Indian Tribe to comply with FTA program- specific guidelines for Title VI when administering its Underlying Agreement supported with federal assistance under the Tribal Transit Program. (c) Nondiscrimination – Title VI of the Civil Rights Act. The Recipient agrees to, and assures that each Third Party Participant will: (1) Prohibit discrimination based on race, color, or national origin, (2) Comply with: (i) Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq.; (ii) U.S. DOT regulations, “Nondiscrimination in Federally-Assisted Programs of the Department of Transportation – Effectuation of Title VI of the Civil Rights Act of 1964,” 49 C.F.R. part 21; and (iii) Federal transit law, specifically 49 U.S.C. § 5332; and (3) Follow: (i) The most recent edition of FTA Circular 4702.1, “Title VI Requirements and Guidelines for Federal Transit Administration Recipients,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance; (ii) U.S. DOJ, “Guidelines for the enforcement of Title VI, Civil Rights Act of 1964,” 28 C.F.R. § 50.3; and (iii) All other applicable federal guidance that may be issued. (d) Equal Employment Opportunity. (1) Federal Requirements and Guidance. The Recipient agrees to, and assures that each Third Party Participant will, prohibit discrimination based on race, color, religion, sex, sexual orientation, gender identity, or national origin, and: (i) Comply with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; (ii) Facilitate compliance with Executive Order No. 11246, “Equal Employment Opportunity” September 24, 1965 (42 U.S.C. § 2000e note), as amended by any later Executive Order that amends or supersedes it in part and is applicable to federal assistance programs; (iii) Comply with federal transit law, specifically 49 U.S.C. § 5332, as provided in section 12 of this Master Agreement; (iv) FTA Circular 4704.1 “Equal Employment Opportunity (EEO) Requirements and Guidelines for Federal Transit Administration Recipients;” and (v) Follow other federal guidance pertaining to EEO laws, regulations, and requirements, and prohibitions against discrimination on the basis of disability. (2) Specifics. The Recipient agrees to, and assures that each Third Party Participant will: (i) Affirmative Action. If required to do so by U.S. DOT regulations (49 C.F.R. part 21) or U.S.


Department of Labor regulations (41 C.F.R. chapter 60), take affirmative action that includes, but is not limited to: (A) Recruitment advertising, recruitment, and employment; (B) Rates of pay and other forms of compensation; (C) Selection for training, including apprenticeship, and upgrading; and (D) Transfers, demotions, layoffs, and terminations; but (ii) Indian Tribe. Recognize that Title VII of the Civil Rights Act of 1964, as amended, exempts Indian Tribes under the definition of “Employer;” and (3) Equal Employment Opportunity Requirements for Construction Activities. Comply, when undertaking “construction” as recognized by the U.S. Department of Labor (U.S. DOL), with: (i) U.S. DOL regulations, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” 41 C.F.R. chapter 60; and (ii) Executive Order No. 11246, “Equal Employment Opportunity in Federal Employment,” September 24, 1965, 42 U.S.C. § 2000e note (30 Fed. Reg. 12319, 12935), as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note. (e) Disadvantaged Business Enterprise. To the extent authorized by applicable federal laws, regulations, or requirements, the Recipient agrees to facilitate, and assures that each Third Party Participant will facilitate, participation by small business concerns owned and controlled by socially and economically disadvantaged individuals, also referred to as “Disadvantaged Business Enterprises” (DBEs), in the Underlying Agreement as follows: (1) Statutory and Regulatory Requirements. The Recipient agrees to comply with: (i) Section 1101(b) of the FAST Act, 23 U.S.C. § 101 note; (ii) U.S. DOT regulations, “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs,” 49 C.F.R. part 26; and (iii) Federal transit law, specifically 49 U.S.C. § 5332, as provided in section 12 of this Master Agreement. (2) DBE Program Requirements. A Recipient that receives planning, capital and/or operating assistance and that will award prime third party contracts exceeding $250,000 in a federal fiscal year must have a DBE program that is approved by FTA and meets the requirements of 49 C.F.R. part 26. (3) Special Requirements for a Transit Vehicle Manufacturer (TVM). The Recipient agrees that: (i) TVM Certification. Each TVM, as a condition of being authorized to bid or propose on FTA-assisted transit vehicle procurements, must certify that it has complied with the requirements of 49 C.F.R. part 26; and (ii) Reporting TVM Awards. Within 30 days of any third party contract award for a vehicle purchase, the Recipient must submit to FTA the name of the TVM contractor and the total dollar value of the third party contract, and notify FTA that this information has been attached in TrAMS. The Recipient must also submit additional notifications if options are exercised in subsequent years to ensure that the TVM is still in good standing. (4) Assurance. As required by 49 C.F.R. § 26.13(a): (i) Recipient Assurance. The Recipient agrees and assures that: (A) It must not discriminate based on race, color, national origin, or sex in the award and performance of any FTA or U.S. DOT-assisted contract, or in the administration of its DBE program or the requirements of 49 C.F.R. part 26; (B) It must take all necessary and reasonable steps under 49 C.F.R. part 26 to ensure nondiscrimination in the award and administration of U.S. DOT-assisted contracts; (C) Its DBE program, as required under 49 C.F.R. part 26 and as approved by U.S. DOT, is incorporated by reference and made part of the Underlying Agreement; and (D) Implementation of its DBE program approved by U.S. DOT is a legal obligation and failure to carry out its terms shall be treated as a violation of this Master Agreement. (ii) Subrecipient/Third Party Contractor/Third Party Subcontractor Assurance. The Recipient agrees and assures that it will include the following assurance in each subagreement and third party contract it signs with a Subrecipient or Third Party Contractor and agrees to obtain the agreement of each of its Subrecipients, Third Party Contractors, and Third Party Subcontractors to include the following assurance in every subagreement and third party contract it signs: (A) The Subrecipient, each Third Party Contractor, and each Third Party Subcontractor must not discriminate based on race, color, national origin, or sex in the award and performance of any FTA or U.S. DOT-assisted subagreement, third party contract, and third party subcontract, as applicable, and the administration of its DBE program or the requirements of 49 C.F.R. part 26; (B) The Subrecipient, each Third Party Contractor, and


each Third Party Subcontractor must take all necessary and reasonable steps under 49 C.F.R. part 26 to ensure nondiscrimination in the award and administration of U.S. DOT-assisted subagreements, third party contracts, and third party subcontracts, as applicable; (C) Failure by the Subrecipient and any of its Third Party Contractors or Third Party Subcontractors to carry out the requirements of this subparagraph 12.e(4)(b) is a material breach of this subagreement, third party contract, or third party subcontract, as applicable; and (D) The following remedies, or such other remedy as the Recipient deems appropriate, include, but are not limited to, withholding monthly progress payments, assessing sanctions, liquidated damages, and/or disqualifying the Subrecipient, Third Party Contractor, or Third Party Subcontractor from future bidding as non-responsible. (5) Remedies. Upon notification to the Recipient of its failure to carry out its approved program, FTA or U.S. DOT may impose sanctions as provided for under 49 C.F.R. part 26, and, in appropriate cases, refer the matter for enforcement under either or both 18 U.S.C. § 1001, and/or the Program Fraud Civil Remedies Act of 1986, 31 U.S.C. § 3801 et seq. (f) Nondiscrimination on the Basis of Sex. The Recipient agrees to comply with federal prohibitions against discrimination based on sex, including: (1) Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. § 1681 et seq.; (2) U.S. DOT regulations, “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” 49 C.F.R. part 25; and (3)Federal transit law, specifically 49 U.S.C. § 5332. (g) Nondiscrimination on the Basis of Age. The Recipient agrees to comply with federal prohibitions against discrimination based on age, including: (1) The Age Discrimination in Employment Act, 29 U.S.C. §§ 621 – 634, which prohibits discrimination based on age; (2) U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations, “Age Discrimination in Employment Act,” 29 C.F.R. part 1625; (3) The Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., which prohibits discrimination against individuals based on age in the administration of Programs, Projects, and related activities receiving federal assistance; (4) U.S. Health and Human Services regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90; and (5) Federal transit law, specifically 49 U.S.C. § 5332. (h) Nondiscrimination on the Basis of Disability. The Recipient agrees to comply with the following federal prohibitions against discrimination based on disability: (1) Federal laws, including: (i) Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, which prohibits discrimination based on disability in the administration of federally assisted Programs, Projects, or activities; (ii) The Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12101 et seq., which requires that accessible facilities and services be made available to individuals with disabilities: (A) For FTA Recipients generally, Titles I, II, and III of the ADA apply; but (B) For Indian Tribes, Titles II and III of the ADA apply, but Title I of the ADA does not apply because it exempts Indian Tribes from the definition of “employer;” (iii) The Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., which requires that buildings and public accommodations be accessible to individuals with disabilities; (iv) Federal transit law, specifically 49 U.S.C. § 5332, which now includes disability as a prohibited basis for discrimination; and (v) Other applicable federal laws, regulations, and requirements pertaining to access for seniors or individuals with disabilities. (2) Federal regulations and guidance, including: (i) U.S. DOT regulations, “Transportation Services for Individuals with Disabilities (ADA),” 49 C.F.R. part 37; (ii) U.S. DOT regulations, “Nondiscrimination on the Basis of Disability in Programs and Activities Receiving or Benefiting from Federal Financial Assistance,” 49 C.F.R. part 27; (iii) Joint U.S. Architectural and Transportation Barriers Compliance Board (U.S. ATBCB) and U.S. DOT regulations, “Americans With Disabilities (ADA) Accessibility Specifications for Transportation Vehicles,” 36 C.F.R. part 1192 and 49 C.F.R. part 38; (iv) U.S. DOT regulations, “Transportation for Individuals with Disabilities: Passenger Vessels,” 49 C.F.R. part 39; (v) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability in State and Local Government Services,” 28 C.F.R. part 35; (vi) U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,”


28 C.F.R. part 36; (vii) U.S. EEOC, “Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act,” 29 C.F.R. part 1630; (viii) U.S. Federal Communications Commission regulations, “Telecommunications Relay Services and Related Customer Premises Equipment for Persons with Disabilities,” 47 C.F.R. part 64, subpart F; (ix) U.S. ATBCB regulations, “Electronic and Information Technology Accessibility Standards,” 36 C.F.R. part 1194; (x) FTA regulations, “Transportation for Elderly and Handicapped Persons,” 49 C.F.R. part 609; (xi) FTA Circular 4710.1, “Americans with Disabilities Act: Guidance;” and (xii) Other applicable federal civil rights and nondiscrimination regulations and guidance. (i) Drug or Alcohol Abuse – Confidentiality and Other Civil Rights Protections. The Recipient agrees to comply with the confidentiality and civil rights protections of: (1) The Drug Abuse Office and Treatment Act of 1972, as amended, 21 U.S.C. § 1101 et seq.; (2) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970, as amended, 42 U.S.C. § 4541 et seq.; and (3) The Public Health Service Act, as amended, 42 U.S.C. §§ 290dd – 290dd-2. (j) Access to Services for Persons with Limited English Proficiency. The Recipient agrees to promote accessibility of public transportation services to persons with limited understanding of English by following: (1) Executive Order No. 13166, “Improving Access to Services for Persons with Limited English Proficiency,” August 11, 2000, 42 U.S.C. § 2000d-1 note, (65 Fed. Reg. 50121); and (2) U.S. DOT Notice, “DOT Policy Guidance Concerning Recipients’ Responsibilities to Limited English Proficiency (LEP) Persons,” 70 Fed. Reg. 74087, December 14, 2005. (k) Other Nondiscrimination Laws, Regulations, Requirements, and Guidance. The Recipient agrees to comply with other applicable federal nondiscrimination laws, regulations, and requirements, and follow federal guidance prohibiting discrimination. (l) Remedies. Remedies for failure to comply with applicable federal Civil Rights laws, regulations, and requirements, and failure to follow guidance may be enforced as provided in those federal laws, regulations, requirements, or guidance. Preference for United States Products and Services: Cargo Preference – Use of United States-Flag Vessels - Section 15.(b) Except as the Federal Government determines otherwise in writing, the Recipient agrees to comply with FTA’s U.S. domestic preference requirements and follow federal guidance, including: Cargo Preference–Use of United States-Flag Vessels. The shipping requirements of 46 U.S.C. § 55305, and U.S. Maritime Administration regulations, “Cargo Preference – U.S.-Flag Vessels,” 46 C.F.R. part 381 Preference for United States Products and Services: Fly America - Section 15.(c) Except as the Federal Government determines otherwise in writing, the Recipient agrees to comply with FTA’s U.S. domestic preference requirements and follow federal guidance, including: Fly America. The air transportation requirements of Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974, as amended, 49 U.S.C. § 40118, and U.S. General Services Administration (U.S. GSA) regulations, “Use of United States Flag Air Carriers,” 41 C.F.R. §§ 301-10.131 – 301-10.143.

Procurement: Federal Laws, Regulations, Requirements, and Guidance - Section 16.(a) The Recipient agrees: (1) To comply with the requirements of 49 U.S.C. chapter 53 and other applicable federal laws, regulations, and requirements in effect now or later that affect its third party procurements; (2) To comply with the applicable U.S. DOT Common Rules; and (3) To follow the most recent edition and any revisions of FTA Circular 4220.1, “Third Party Contracting Guidance,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance. Procurement: Solid Wastes - Section 16.(e)(10) A Recipient that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include


procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. Procurement: National Intelligent Transportation Systems Architecture and Standards – Section 16.(m) The Recipient agrees to conform to the National Intelligent Transportation Systems (ITS) Architecture requirements of 23 U.S.C. § 517(d), unless it obtains an exemption from those requirements, and to follow FTA Notice, “FTA National ITS Architecture Policy on Transit Projects,” 66 Fed. Reg. 1455, January 8, 2001, and all other applicable federal guidance.

Ethics: Debarment and Suspension – Section 16.(d) The Recipient agrees to the following: (1) It will comply with the following requirements of 2 C.F.R. part 180, subpart C, as adopted and supplemented by U.S. DOT regulations at 2 C.F.R. part 1200. (2) It will not enter into any arrangement to participate in the development or implementation of the Underlying Agreement with any Third Party Participant that is debarred or suspended except as authorized by: (i) U.S. DOT regulations, “Nonprocurement Suspension and Debarment,” 2 C.F.R. part 1200; (ii) U.S. OMB regulatory guidance, “Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement),” 2 C.F.R. part 180, including any amendments thereto; (iii) Executive Order No. 12549, “Debarment and Suspension of Participants in Federal Programs,” February 18, 1986, 31 U.S.C. § 6101 note, as amended by Executive Order No. 12689, “Debarment and Suspension,” August 16, 1989 31 U.S.C. § 6101 note; and (iv) Other applicable federal laws, regulations, requirements, or guidance regarding participation with debarred or suspended Recipients or Third Party Participants. (3) It will review the U.S. GSA “System for Award Management – Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs,” if required by U.S. DOT regulations, 2 C.F.R. part 1200. (4) If the Recipient suspends, debars, or takes any similar action against a Third Party Participant or individual, the Recipient will provide immediate written notice to the: (i) FTA Regional Counsel for the Region in which the Recipient is located or implements the Underlying Agreement; (ii) FTA Headquarters Manager that administers the Grant or Cooperative Agreement; or (iii) FTA Chief Counsel. Procurement: Clean Air Act and the Federal Water Pollution Control Act - Section 16.(e)(7) In addition to other applicable provisions of federal law, regulations, requirements, and guidance, all third party contracts made by the Recipient under the Federal award must contain provisions covering the following, as applicable: Clean Air Act (42 U.S.C. §§ 7401 – 7671q.) and the Federal Water Pollution Control Act (33 U.S.C. §§ 1251 – 1388), as amended. Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non-federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. §§ 7401 – 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. §§ 1251 – 1388). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). Procurement: Access to Third Party Contract Records – Section 16.(t) The Recipient agrees to require, and assures that each of its Subrecipients will require, its Third Party Contractors at each tier to provide: (1) The U.S. Secretary of Transportation and the Comptroller General of the United States, the state, or


their duly authorized representatives, access to all third party contract records (at any tier) as required under 49 U.S.C. § 5325(g); and (2) Sufficient access to all third party contract records (at any tier) as needed for compliance with applicable federal laws, regulations, and requirements or to assure proper management of Underlying Agreement as determined by FTA. Employee Protections: Awards Not Involving Construction – 24.(b) The Recipient agrees to comply and assures that each Third Party Participant will comply with all federal laws, regulations, and requirements providing wage and hour protections for nonconstruction employees, including Section 102 of the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. § 3702, and other relevant parts of that Act, 40 U.S.C. § 3701 et seq., and U.S. DOL regulations, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act),” 29 C.F.R. part 5 Employee Protections: Public Transportation Employee Protective Arrangements – Section 24.d As a condition of award of federal assistance appropriated or made available for FTA programs involving public transportation operations, the Recipient agrees to comply and assures that each Third Party Participant will comply with the following employee protective arrangements of 49 U.S.C. § 5333(b): (1) U.S. DOL Certification. When its Award, the accompanying Underlying Agreement, or any Amendments thereto involve public transportation operations and are supported with federal assistance appropriated or made available for 49 U.S.C. §§ 5307 – 5312, 5316, 5318, 5323(a)(1), 5323(b), 5323(d), 5328, 5337, 5338(b), or 5339, or former 49 U.S.C. §§ 5308, 5309, 5312, or other provisions of law as required by the Federal Government, U.S. DOL must provide a certification of employee protective arrangements before FTA may provide federal assistance for that Award. The Recipient agrees that the certification issued by U.S. DOL is a condition of the Underlying Agreement and that the Recipient must comply with its terms and conditions. (2) Special Warranty. When its Underlying Agreement involves public transportation operations and is supported with federal assistance appropriated or made available for 49 U.S.C. § 5311, U.S. DOL will provide a Special Warranty for its Award, including its Award of federal assistance under the Tribal Transit Program. The Recipient agrees that its U.S. DOL Special Warranty is a condition of the Underlying Agreement and the Recipient must comply with its terms and conditions. (3) Special Arrangements for Underlying Agreements for Federal Assistance Authorized under 49 U.S.C. § 5310. The Recipient agrees, and assures that any Third Party Participant providing public transportation operations will agree, that although pursuant to 49 U.S.C. § 5310, and former 49 U.S.C. §§ 5310 or 5317, FTA has determined that it was not “necessary or appropriate” to apply the conditions of 49 U.S.C. § 5333(b) to any Subrecipient participating in the program to provide public transportation for seniors (elderly individuals) and individuals with disabilities, FTA reserves the right to make case-by-case determinations of the applicability of 49 U.S.C. § 5333(b) for all transfers of funding authorized under title 23, United States Code (flex funds), and make other exceptions as it deems appropriate. Environmental Protections: Other Environmental Federal Laws – Section 26.(d) The Recipient agrees to comply or facilitate compliance, and assures that its Third Party Participants will comply or facilitate compliance, with all applicable federal laws, regulations, and requirements, and will follow applicable guidance, including, but not limited to, the Clean Air Act, Clean Water Act, Wild and Scenic Rivers Act of 1968, Coastal Zone Management Act of 1972, the Endangered Species Act of 1973, Magnuson Stevens Fishery Conservation and Management Act, Resource Conservation and Recovery Act, Comprehensive Environmental Response, Compensation, and Liability Act, Executive Order No. 11990 relating to “Protection of Wetlands,” and Executive Order No. 11988, as amended, “Floodplain Management.”


Environmental Protections: Energy Conservation - Section 26.(j) The Recipient agrees to, and assures that its Subrecipients will, comply with the mandatory energy standards and policies of its state energy conservation plans under the Energy Policy and Conservation Act, as amended, 42 U.S.C. § 6321 et seq., and perform an energy assessment for any building constructed, reconstructed, or modified with federal assistance required under FTA regulations, “Requirements for Energy Assessments,” 49 C.F.R. part 622, subpart C. Substance Abuse: Drug-Free Workplace - Section 35.(a) The Recipient agrees to: (1) Comply with the Drug-Free Workplace Act of 1988, as amended, 41 U.S.C. § 8103 et seq.; (2) Comply with U.S. DOT regulations, “Governmentwide Requirements for Drug-Free Workplace (Financial Assistance),” 49 C.F.R. part 32; and (3) Follow and facilitate compliance with U.S. OMB regulatory guidance, “Governmentwide Requirements for Drug-Free Workplace (Financial Assistance),” 2 C.F.R. part 182, particularly where the U.S. OMB regulatory guidance supersedes comparable provisions of 49 C.F.R. part 32. Substance Abuse: Alcohol Misuse and Prohibited Drug Use - Section 35.b (1) Requirements. The Recipient agrees to comply and assures that its Third Party Participants will comply with: (i) Federal transit laws, specifically 49 U.S.C. § 5331; (ii) FTA regulations, “Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations,” 49 C.F.R. part 655; and (iii) Applicable provisions of U.S. DOT regulations, “Procedures for Transportation Workplace Drug and Alcohol Testing Programs,” 49 C.F.R. part 40. (2) Remedies for Non-Compliance. The Recipient agrees that if FTA determines that the Recipient or a Third Party Participant receiving federal assistance under 49 U.S.C. chapter 53 is not in compliance with 49 C.F.R. part 655, the Federal Transit Administrator may bar that Recipient or Third Party Participant from receiving all or a portion of the federal transit assistance for public transportation it would otherwise receive. Disputes, Breaches, Defaults, or Other Litigation – Section 39 (a) FTA Interest. FTA has a vested interest in the settlement of any violation of federal law, regulation, or requirement, or any disagreement involving the Award, the accompanying Underlying Agreement, and any Amendments thereto including, but not limited to, a default, breach, major dispute, or litigation, and FTA reserves the right to concur in any settlement or compromise. (b) Notification to FTA; Flow Down Requirement. If a current or prospective legal matter that may affect the Federal Government emerges, the Recipient must promptly notify the FTA Chief Counsel and FTA Regional Counsel for the Region in which the Recipient is located. The Recipient must include a similar notification requirement in its Third Party Agreements and must require each Third Party Participant to include an equivalent provision in its subagreements at every tier, for any agreement that is a “covered transaction” according to 2 C.F.R. §§ 180.220 and 1200.220. (1) The types of legal matters that require notification include, but are not limited to, a major dispute, breach, default, litigation, or naming the Federal Government as a party to litigation or a legal disagreement in any forum for any reason. (2) Matters that may affect the Federal Government include, but are not limited to, the Federal Government’s interests in the Award, the accompanying Underlying Agreement, and any Amendments thereto, or the Federal Government’s administration or enforcement of federal laws, regulations, and requirements. (3) The Recipient must promptly notify the U.S. DOT Inspector General in addition to the FTA Chief Counsel or Regional Counsel for the Region in which the Recipient is located, if the Recipient has knowledge of potential fraud, waste, or abuse occurring on a Project receiving assistance from FTA. The notification provision applies if a person has or may have submitted a false claim under the False Claims Act, 31 U.S.C. § 3729 et seq., or has or may have committed a criminal or civil violation of law pertaining to such matters as fraud, conflict of interest,


bribery, gratuity, or similar misconduct involving federal assistance. This responsibility occurs whether the Project is subject to this Agreement or another agreement between the Recipient and FTA, or an agreement involving a principal, officer, employee, agent, or Third Party Participant of the Recipient. It also applies to subcontractors at any tier. Knowledge, as used in this paragraph, includes, but is not limited to, knowledge of a criminal or civil investigation by a Federal, state, or local law enforcement or other investigative agency, a criminal indictment or civil complaint, or probable cause that could support a criminal indictment, or any other credible information in the possession of the Recipient. (c) Federal Interest in Recovery. The Federal Government retains the right to a proportionate share of any proceeds recovered from any third party, based on the percentage of the federal share for the Underlying Agreement. Notwithstanding the preceding sentence, the Recipient may return all liquidated damages it receives to its Award Budget for its Underlying Agreement rather than return the federal share of those liquidated damages to the Federal Government, provided that the Recipient receives FTA’s prior written concurrence. (d) Enforcement. The Recipient must pursue its legal rights and remedies available under any third party agreement or any federal, state, or local law or regulation. Recycled Products The CONTRACTOR agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247. Incorporation of FTA Terms Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1F are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The CONTRACTOR shall not perform any act, fail to perform any act, or refuse to comply with any California Department of Transportation requests which would cause the California Department of Transportation to be in violation of the FTA terms and conditions. The CONTRACTOR shall not perform any act, fail to perform any act, or refuse to comply with any Awarding Agency requests which would cause the Awarding Agency to be in violation of the FTA terms and conditions. Disadvantaged Business Enterprise (DBE) The CONTRACTOR agrees to comply with U.S. Department of Transportation regulations, “Participation by Disadvantaged Enterprises in Department of Transportation Financial Assistance Programs,” 49 CFR Part 26 and will cooperate with the California Department of Transportation with regard to maximum utilization of disadvantaged business enterprise, and will use its best efforts to ensure that disadvantaged business enterprise shall have the maximum opportunity to compete for sub contractual work under this Contract. Prompt Payment and Return of Retainage

A. All payments to the CONTRACTOR shall be made in accordance with California Government Code (GC), Chapter 4.5, commencing with Section 927, which is known as the California Prompt Payment Act. If an authorized disbursement is not made within the thirty (30) calendar-day departmental limit stipulated by the California Prompt Payment Act, interest penalties may be payable to the CONTRACTOR.


B. Unless the approved project is for Construction, the CONTRACTOR shall not hold retainage (withhold retention) from any subcontractor. The STATE shall not hold retainage (i.e. withhold retention) from any CONTRACTOR.

C. If a dispute arises regarding Construction projects only, the CONTRACTOR may exercise its rights under California Public Contract Code (PCC) Sections 10262 and 10262.5 or California Business and Professions Code (BPC) Section 7108.5, as applicable.

D. The CONTRACTOR must pay third-party contractors within 7 days of receipt of each undisputed progress payment from the STATE, unless the PROJECT is for Construction. In the case of a Construction project only, the CONTRACTOR is required to pay its subcontractors for satisfactory performance of work related to this Agreement no later than 30 days after the CONTRACTOR’s receipt of payment for that work from the STATE. In addition, the CONTRACTOR is required to return any retainage (retention) payment to any subcontractor within 30 days after the subcontractor’s work related to this Agreement is satisfactorily completed.

Privacy Act of 1974 (1) The Contractor agrees to comply with, and assures the compliance of its employees with, the information restrictions and other applicable requirements of the Privacy Act of 1974, 5 U.S.C. § 552a. Among other things, the Contractor agrees to obtain the express consent of the Federal Government before the Contractor or its employees operate a system of records on behalf of the Federal Government. The Contractor understands that the requirements of the Privacy Act, including the civil and criminal penalties for violation of that Act, apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may result in termination of the underlying contract. (2) The Contractor also agrees to include these requirements in each subcontract to administer any system of records on behalf of the Federal Government financed in whole or in part with Federal assistance provided by the California Department of Transportation or FTA.


SAMPLE AGREEMENT THIS AGREEMENT is made and entered into this 1st day of July 2019, by and between the Transit Joint Powers Authority for Merced County, a California joint powers authority within the meaning of Government Code § 6500 et seq (hereinafter referred to as "TJPAMC"), and To Be Determined, (hereinafter referred to as "CONTRACTOR"). It is agreed between the parties that: Section One – Scope of Work CONTRACTOR agrees to perform all work necessary to complete, in a manner satisfactory to TJPAMC, those items described in Exhibit A – Scope of Work and incorporated herein by this reference as if set forth in full. Section Two – Notice to Proceed TJPAMC shall serve an email notice to proceed upon full execution of this Agreement. Upon receipt of such notice, CONTRACTOR shall diligently proceed with the work authorized and complete it within the agreed time period. Section Three – Term CONTRACTOR shall commence work immediately following execution of this Agreement and complete the performance of its obligations under this Agreement by June 30, 2022. All work is contingent upon available funding and successful performance. Additional terms may be as agreed upon, shall be based on available funding and successful performance and shall not exceed four (4) additional one (1) year terms. The contract will be a fixed price contract for the full term, including option years, and include agreed upon economic price adjustments related to the Oil Price Information Service or equivalent daily average rack price for Stockton, California . Section Four – Compensation For services performed pursuant to this Agreement, TJPAMC agrees to pay and CONTRACTOR agrees to accept payment in full, the amounts as identified on the payment schedule and cost summary provided in Exhibit B – Cost Summary. CONTRACTOR shall be reimbursed no later than thirty (30) days following submission of a task detailed, written, acceptable billing to TJPAMC. Written billing must include details of tasks and/or work completed relevant to billing payment request. Invoice shall include a copy of the OPIS price sheet for Stockton, CA for the invoice dates.

Section Five – Insurance CONTRACTOR shall, for the duration of this Agreement, purchase and maintain insurance to protect against loss resulting from the performance of its duties under the Agreement. Said insurance coverage shall comply with the following minimum requirements:


A. General Liability: $5,000,000 combined single limit per occurrence for bodily injury, personal injury, and property damage. If the Commercial General Liability or any other policy with a general aggregate limit is used, either the aggregate limit shall be endorsed to apply separately to this project, or the aggregate limit shall be twice the above occurrence limit.

B. Automobile Liability: $5,000,000 combined single limit per accident for bodily injury and property damage.

C. The above liability limits may consist of a combination of a primary policy limit and an excess policy limit to total at least $5,000,000.

D. Transportation liability and coverage for fuel spills not less than statutory limits.

CONTRACTOR shall maintain worker’s compensation coverage sufficient to comply with statutory requirements and limits as required by the California Labor Code, including Employers’ Liability limits of $1,000,000 per accident. All policies shall be endorsed to waive the insurer’s subrogation rights against TJPAMC.

Original certificates of such insurance shall be filed with TJPAMC. Said certificates shall evidence coverage through the term of this Agreement, reference the agreement number, and shall name TJPAMC as an additional insured. Modifications to insurance requirements must be approved by TJPAMC in writing. CONTRACTOR is responsible for providing TJPAMC updated insurance documents annually. Section Six – Changes to Scope TJPAMC may at any time, and upon a minimum of ten (10) days written notice, modify the scope of basic services to be provided under this Agreement. CONTRACTOR shall, upon receipt of said notice, determine the impact on both time and compensation of such change in scope and notify TJPAMC in writing. Upon agreement between TJPAMC and CONTRACTOR as to the extent of said impacts on time and compensation, an amendment to this Agreement shall be prepared describing such changes. Execution of the amendment by TJPAMC and CONTRACTOR shall constitute the CONTRACTOR's notice to proceed with the changed scope. Section Seven – Compliance with Laws, Rules, and Regulations All services performed by CONTRACTOR pursuant to this Agreement shall be undertaken with usual and customary professional care to be performed in accordance and full compliance with all applicable federal, state or city statutes, and any rules or regulations promulgated thereunder. The CONTRACTOR agrees to comply with all applicable federal provisions as required by the Federal Transit Administration and related agencies as per Exhibit C. Section Eight – Responsibility of CONTRACTOR By executing this Agreement, CONTRACTOR warrants to TJPAMC that it possesses, or will arrange to secure from others, all of the necessary professional services and resources and facilities to provide


TJPAMC with the services contemplated under this Agreement. CONTRACTOR further warrants that it will follow the best current, generally accepted practice of the profession to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding the project for which services are rendered under this Agreement. Section Nine – Responsibility of TJPAMC To the extent appropriate to the Project contemplated by this Agreement, TJPAMC shall:

A. Assist CONTRACTOR by placing at its disposal all available information pertinent to the project. B. Examine all studies, reports, proposals and other documents presented by CONTRACTOR, and

render verbally or in writing, as may be appropriate, decisions pertaining thereto within a reasonable time so as not to delay the services of CONTRACTOR.

C. The Transit Director, or designee, will act as TJPAMC’s representative with respect to all work to be performed under this Agreement. Such person shall have complete authority to transmit instructions, receive information, and interpret and define TJPAMC's policies and decisions with respect to materials, equipment, elements and systems pertinent to CONTRACTOR's services.

Section 10 – Termination of Agreement for Cause

A. TJPAMC may, by written notice to CONTRACTOR, terminate the whole or any part of this Agreement in any one of the following circumstances:

1. If CONTRACTOR fails to perform the services called for by this Agreement within the time(s) specified herein, or any extension thereof; or

2. If CONTRACTOR fails to perform the services called for by this Agreement or so fails to make progress as to endanger performance of this Agreement in accordance with its terms and in either of these two circumstances does not correct such failure within a period of ten (10) days (or such longer period as TJPAMC may authorize in writing) after receipt of notice from TJPAMC specifying such failure.

B. In the event TJPAMC terminates this Agreement in whole or in part as provided in Paragraph A above, TJPAMC may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.

C. Except with respect to defaults of subcontractors, CONTRACTOR shall not be liable for any excess costs if the failure to perform arises out of causes beyond the control and without the fault or negligence of CONTRACTOR. Such causes include, but are not limited to, acts of God or of the public enemy, acts of government in either it’s sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, and unusually severe weather. In the event the failure to timely perform is caused by the default of a subcontractor that is mandated, required, or otherwise imposed on CONTRACTOR by TJPAMC, CONTRACTOR shall not be liable for failure to perform the services.

D. Should the Agreement be terminated as provided in Paragraph A above, CONTRACTOR shall provide TJPAMC with all finished and unfinished documents, data, studies, services, drawings, maps, models, photographs, reports, etc., prepared by CONTRACTOR pursuant to this Agreement. Upon termination as provided in Paragraph A above, CONTRACTOR shall be paid the value of the work performed, as determined by TJPAMC


less payments of compensation previously made. Payments previously made by TJPAMC to CONTRACTOR shall be credited to the amount payable to CONTRACTOR for allowable costs as provided herein, except, however, CONTRACTOR shall be entitled to a proportionate fixed fee, if any, which, in the opinion of TJPAMC, it has legitimately earned and was not related to the cause for which this Agreement was terminated.

E. If after notice of termination of this Agreement as provided for in this Section, it is determined for any reason that CONTRACTOR was not in default under the provisions of this Section or that the default was excusable under the provisions of this Section, then the rights and obligations of the parties shall be the same as if the Agreement had been terminated for the convenience of TJPAMC.

Section 10 – Termination for Convenience of TJPAMC TJPAMC may terminate this Agreement, with or without cause, at any time by giving CONTRACTOR thirty (30) days written notice of such termination. If this Agreement is terminated by TJPAMC as provided herein, CONTRACTOR shall be paid a total amount that is the ratio of completed tasks to total services as determined by TJPAMC, less payments already made under this Agreement. This proration shall be extended to cover any fixed fee charged for a fully completed product. Upon termination, CONTRACTOR will give TJPAMC all of its work product. Section 11 – Interest of Officials and CONTRACTOR

A. No member of or delegate to the Congress of the United States of America nor any Resident Commissioner shall be admitted to any share or part hereof or to any benefits to arise herefrom.

B. CONTRACTOR hereby covenants that it has, at the time of the execution of this Agreement, no interest, and that it shall not acquire any interest in the future, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed pursuant to this Agreement. CONTRACTOR further covenants that in the performance of this work, no person having any such interest shall be employed.

Section 12 – Subcontracting

A. CONTRACTOR shall not subcontract or otherwise assign any portion of the work to be performed under this Agreement without the prior written approval of TJPAMC.

B. All subcontracts shall be subject to the provisions contained in this Agreement between TJPAMC and CONTRACTOR, including the Federal Provisions provided in Exhibit C.

C. If the subcontractor is a Disadvantaged Business Enterprise, prompt payment and return of retainage requirements apply, as referenced in 49 CFR 26.29. CONTRACTOR will provide payment records upon TJPAMC’s request.

D. CONTRACTOR cannot terminate a subcontractor, including a DBE subcontractor, for convenience if CONTRACTOR listed the subcontractor in response to the IFB, and then perform the work of the terminated subcontract with its own forces or those of an affiliate, without TJPAMC's prior written consent.

Section 13 – Successors and Assigns This Agreement shall be binding upon and inure to the benefit of any successors or assigns.


Section 14 – Independent CONTRACTOR TJPAMC and CONTRACTOR agree that CONTRACTOR is an independent contractor and that no employer-employee relationship exists between TJPAMC and CONTRACTOR or any of its subcontractors. CONTRACTOR shall be solely responsible for the conduct and control of the work performed under this Agreement. CONTRACTOR shall be free to render services to others during the term of this Agreement so long as such activities do not interfere with or diminish CONTRACTOR’s ability to fulfill the obligations established herein to TJPAMC. Section 15 – Dispute Resolution, Attorney Fees, Jurisdiction, and Venue In any action, suit or proceeding arising out of or in any way connected with the performance of this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs. Notwithstanding any other provision of this Agreement, any disputes concerning any question of fact or law relating to this Agreement or any litigation or arbitration arising out of this Agreement shall be interpreted pursuant to California law, subject to the jurisdiction of the Superior Court of California, and venued in the County of Merced. CONTRACTOR expressly waives federal jurisdiction. Section 16 – Publication No reports relating to this work shall be published by CONTRACTOR without written permission of TJPAMC. Section 17 – Indemnification CONTRACTOR shall indemnify and defend TJPAMC and hold it harmless from and against any and all claims, demands, or liability arising out of or in any way connected with the performance of this Agreement. Indemnity shall apply to any acts, omissions, willful misconduct, or negligent conduct, whether active or passive, unless liability is caused solely by the negligent or willful misconduct of TJPAMC. CONTRACTOR will, on request and at its own expense, defend any action, suit, or proceeding arising hereunder and shall reimburse and pay TJPAMC for any loss, cost, damage, or expense, including attorney’s fees suffered by it hereunder. Section 18 – Ownership of Documents

All documents, methodological explanations, computer programs, drawings, designs, reports, and copyrights generated as a result of work on this Agreement shall be the property of TJPAMC. Section 19 – Documentation/Access to Records CONTRACTOR shall document the results of the work with each billing, to the satisfaction of TJPAMC. Such documentation shall include a progress summary, listing attainment of Agreement objectives. CONTRACTOR shall work with TJPAMC to ensure that all paperwork requirements are met. CONTRACTOR shall maintain all books, documents, papers, accounting records, and other evidence pertaining to costs incurred, and make such materials available at their respective offices at all reasonable times during the Agreement period and for three years from the date of final payment to CONTRACTOR. Such materials shall be available for inspection by authorized representatives of TJPAMC,


or the copies thereof shall be furnished if requested. The FTA, FHWA, Comptroller General of the United States, or any authorized representative, shall have access to any books, documents, papers and records of the CONTRACTOR, which are directly pertinent to that specific Agreement, for the purpose of making audit, examination, excerpt and transcriptions. Section 20 – Waiver No waiver by either party of any default, breach, or condition precedent shall be valid unless made in writing and signed by the parties hereto. No oral waiver of any default, breach, or condition precedent shall be binding on any of the parties hereto. Waiver by either party of any default, breach, or condition precedent shall not be construed as a waiver of any other default, breach, or condition precedent, or any other right hereunder. In no event shall the making, by TJPAMC, of any payment to CONTRACTOR constitute, or be construed as, a waiver by TJPAMC of any breach of covenant, or any default which may then exist, on the part of CONTRACTOR. The making of any such payment by TJPAMC while any such breach or default shall exist, shall not be construed as acceptance of substandard or careless work or as relieving CONTRACTOR from its full obligations under this Agreement. Section 21 – Notices

Any notices required to be given pursuant to this Agreement shall be deemed to have been given by their deposit, postage prepaid, in the United States Postal Service, addressed to the parties as follows:

A. To TJPAMC: Transit Director Transit Joint Powers Authority for Merced County 369 W. 18th Street Merced, CA 95340

B. To CONTRACTOR: Contact Name, Title Agency/Company Name Street Address City, State, Zip Code

Nothing hereinabove shall prevent either TJPAMC or CONTRACTOR from personally delivering any such notices to the other. Section 22 – Integration This Agreement, and Exhibits A, B, and C, represent the entire understanding of TJPAMC and CONTRACTOR as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This Agreement may not be modified or altered except in writing signed by TJPAMC and CONTRACTOR. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the day and year first above written.


TJPAMC: CONTRACTOR: By ____________________________________ By ____________________________________ Stacie Dabbs, Executive Director Contact Name, Title APPROVED AS TO FORM: By ____________________________________ General Counsel, Haden Law Office