VENDOR CONTRACT The CW 0f Seattle Vendor Contract Date Change Order PURCHASING SERVICES 700 5th AVE #4112 0000003681 9/18/17 PO BOX 94687 Payment Terms Freight Terms Seattle, WA 981244687 Net 30 FOB Destination Procurement Strategic Email: Phone: Advusor: Presley.Palmer@Seattle.gov 206?233-7158 Presley Palmer Vendor 0000490276 CAF USA Inc. 300 East 18th Street Elmira Heights, NY 14903 Ship To: First Hill Streetcar OM F, 848 7th Ave South, Seattle, Washington 98134, South Lake Union OMF, 318 Fairview Ave North, Seattle, Washington 98109, Contact: lgnacio (l?aki) Barrenechea, Director? North America Phone 202-898-4848 or another location in Seattle designated by the City for deliveries under this Contract. Email: ibarrenechea@caf.net Bill To: Department of Transportation PO Box 34996, Seattle WA 98124-4996 I. BACKGROUND The City of Seattle (?City?) awarded a contract to CAF USA inc. as a result of Request for Proposal, RFP No.3681 for the design, engineer, supply, build, test, commission, delivery, and sell of City Connector Streetcar Vehicle, Spare Parts, Special Tools and Test Equipment (Materials) and System Support, all in accordance with this Contract and consistent with Federal Transit Administration (FTA) Section 5309 Small Starts grant. The Contract is only available to the Seattle Department of Transportation (SDOT) ll. CHANGE ORDER DESCRIPTION CONTRACT HISTORY Contract Action Description of Contract Action Contract Term Dates/ Comments Contract Execution Contract Execution 09/18/2017 09/18/2027 IV. ADDITIONAL NOTES Orders must be placed by Seattle Department of Transportation (SDOT). Invoices must indicate Contract #3681. Authorized Signature/Date City of Seattle CONTRACT TERMS AND CONDITIONS FOR CENTER CITY CONNECTOR STREETCAR VEHICLES Contract 0000003681 This Contract is made effective September 18, 2017 (the “Effective Date”), and entered into by and between the City of Seattle (“City” or “Seattle”), a Washington municipal corporation; and CAF USA, Inc. (“Vendor” or “Contractor”), a corporation of the State of Delaware, and authorized to do business in the State of Washington. Vendor Business Name of Representative Vendor Address Vendor Phone Vendor Fax Vendor E-mail CAF USA, Inc Ignacio Barrenechea, Director – North America 1401 K Street, NW, Suite 1003 202-898-4848 202-216-8929 ibarrenechea@caf.net WHEREAS, the purpose of this Contract is for the procurement of Center City Connector Streetcar Vehicles; and WHEREAS, Vendor was selected as a result of a Request for Proposal process initiated in February 2 2017 as required by Seattle Municipal Code since costs are anticipated to exceed $50,000 in value; and WHEREAS, funds for this purpose are authorized through City of Seattle annual budget; NOW, THEREFORE, in consideration of the terms, conditions, covenants, and performance of the scope of work contained herein, as attached and made a part hereof, Seattle and Vendor mutually agree as follows: 1. Definitions. Approval: The written endorsement, sanction or authorization by the City of a proposal, plan, procedure, action, document, report, specification, design, or any part thereof, undertaken, promulgated or developed by the Contractor in accordance with the indicated requirements of the Contract. Approved: Having received written approval from the City or its designated representative. Award: The acceptance by the City of the Proposal and the Notice of Intent to Award Contract dated 26 July 2017 to the Vendor. Base Contract: Shall mean the supply of (i) ten (10) low-floor Streetcars; (ii) the Spare Parts, Special Tools and Test Equipment; and (iii) Manuals and Drawings, contained in the Total Base Contract Price and meeting the requirements of the Contract. The Base Contract does not include the options for additional streetcars and additional spare parts, special tools and test equipment. Buyer: City of Seattle (“the City” or “Seattle” or “SDOT”). The City will be the contracting agency and signatory to the Contract. Calendar Day: Each and every day shown on the calendar. Certificate of Delivery: A document issued by the City to the Contractor following shipment of the streetcar from the Contractor’s facility to the City’s streetcar maintenance facility in accordance with Special Provisions SP-4.5. Page 1 of 31 Contract Terms and Conditions Change Notice: A notice issued to the Contractor by the City specifying a proposed change to the Contract Documents. Change Order: A written order issued by the City Purchasing Buyer, or designee, to the Vendor in accordance with the Special Provisions SP-10.1. City: The City of Seattle, Washington. City Streetcar Maintenance Facility: The City's streetcar maintenance facilities, which are located at First Hill Streetcar OMF, 848 7th Ave South, Seattle, Washington 98134 and South Lake Union OMF, 318 Fairview Ave North, Seattle, Washington 98109, or another location in Seattle designated by the City for deliveries under this Contract. Conditional Acceptance: A streetcar shall achieve Conditional Acceptance when it has been Delivered, has successfully passed all of the tests set forth in this Contract, has been certified by Contractor as fit for revenue service, is otherwise complete (except for those items specifically set forth on the List of Known Open Items for such streetcar), and the City has determined the streetcar to be suitable for safe and reliable operation in revenue service. Conditional Acceptance Notice: A written notice transmitted to the Contractor stating that the streetcar has completed all contractual requirements for Conditional Acceptance, has been certified to the City by the Contractor as fit for revenue service and is therefore a candidate for Conditional Acceptance by the City. Each such Conditional Acceptance Notice shall have attached the agreed upon Known Open Items List, including a date for resolution for each open item. Contract: The written agreement executed by the City and the Contractor which covers the performance of the Work, the furnishing of labor, materials, tools and equipment and the basis of payment, and which incorporates the various Contract Documents. The Contract includes any Change Orders executed by the City and the Contractor subsequent to award of the Contract. The Contract represents the entire and integrated agreement between the parties and supersedes all prior discussions, negotiations, representations or agreements either written or oral. Contract Documents: Contract Documents means the Change Orders, Contract Terms and Conditions, Special Provisions, Technical Specifications, Alignment Drawings, Contractor’s Best and Final Offer, Contractor’s Proposal, Request for Proposals and Request for Best and Final Offers, Addenda, if any, completed Proposal Forms, and Performance Bond (or Letter of Credit) and Warranty Bond. These Contract Documents are intended to describe and provide for the completed Work. In the event there are inconsistencies or discrepancies of terms and conditions between elements of these Contract documents, it shall be resolved by giving precedence in the order designated in Section 2 of the Contract Terms and Conditions. Contractor: CAF USA, Inc. a corporation of Delaware with address at 1401 K Street, NW, Suite 1003 Washington DC, 20005 Days: Days as used in the Contract Documents shall be understood to mean calendar days unless otherwise designated. Defect (Deficiency or Fault): Means in relation to a streetcar, spare part, special tool or test equipment that such streetcar, spare part, special tool or test equipment does not comply with the requirements of this Contract, whether as a consequence of faulty design, faulty materials, bad workmanship or negligence of the Vendor or its employees, subcontractors or suppliers. Delivery: Means the date on which a Certificate of Delivery is issued. As applicable to the Spare Parts, Special Tools, Test Equipment, Manuals and Drawings shall mean the date of delivery of such Spare Parts, Special Tools, Test Equipment, Manuals and Drawings in accordance with the Contract. Drawings: The official plans, sections, elevations and details in the Contract Documents or amendments thereto and supplemental drawings approved by the City which show the locations, character, dimensions and details of the Work to be performed. Equivalent: An approved substitution, identical in engineering design, function, performance and service life to that item specified by the SDOT Project Manager. Page 2 of 31 Contract Terms and Conditions Execution of the Contract: The signing of the Contract by the authorized representative of the City and the authorized representative of the Vendor. Failure (Defect): See definition of Defect. Federal Transit Administration (FTA): The FTA is the operating agency of the United States Department of Transportation providing partial funding for the Project. Final Acceptance Notice: The form issued by the City to the Contractor upon Final Acceptance of a streetcar, in connection with each streetcar. Final Acceptance of a streetcar: Final Acceptance of a streetcar shall occur upon Conditional Acceptance and successful completion by Contractor of all Work identified on the Known Open Items List or discovered items for such streetcar prior to acceptance. Final Completion: Final Completion of the Project or Contract close-out shall mean acceptance by the City of all the Work, including, but not limited to, Streetcars, all plans, schedules, procedures, reports, Drawings, forms, training, Manuals, modifications, Spare Parts, Special Tools, Test Equipment, including those deemed necessary during the General Warranty period, and certification as required by the Contract Documents. Final Completion of the Project shall not take place until expiration of the General Warranty period. There shall be separate Final Completion for the Base Contract and the Option for Additional Cars (Special Provision SP-8). Final Payment: Shall have the meaning given to such term at Special Provision SP-7.3 General Warranty: Shall have the meaning given to such term at Special Provision SP-13. The General Warranty period of each streetcar extends from Conditional Acceptance of the streetcar to expiration of the one-year warranty period of the streetcar. Government: The Government of the United States of America. Holidays: Specific days on which the City is not open for business. Inspector: The SDOT’s Project Manager’s authorized representative assigned to make detailed inspections of Contract performance and materials furnished by the Contractor. Joint: Involving mutually the Contractor and the City. Joint Inspection/Receiving Report: Description of all defects, shipping damage and missing parts upon streetcar delivery at the City’s Streetcar Maintenance Facility. Key Subcontractor: Means any individual, partnership, firm or corporation who undertakes, with the prior approval of the City, the partial or total manufacture of one or more items of Work under the terms of the Contract, or who performs other services for the Vendor as required to fulfill the terms of this Contract by virtue of an agreement with the Vendor. The list of Key Subcontractors is mentioned in Attachment [1] Known Open Items List: The list of items of the Work that have been noted to be missing, deficient, either in design, manufacture, installation, or test, or a combination of these items, and require the Vendor to correct such deficiencies. The Open Items List that accompanies each streetcar shall be prepared and agreed upon by the Parties at the time of Conditional Acceptance of each streetcar and shall contain only items or discovered items for such streetcar prior to acceptance and after Conditional Acceptance that do not impact the safe and reliable operation of such streetcar. All items that impact safe and reliable operation must be resolved prior to Conditional Acceptance. Manufacturer: Original equipment manufacturer supplying materials, components or apparatus whatsoever for use on the streetcar. Materials: Substances specified for use in the Work. Letter of Intent to Award: The written notice dated 26 July 2017 from the City to the Vendor advising of the City’s intention to award the Contract to the Vendor. Page 3 of 31 Contract Terms and Conditions Notice to Proceed (or “NTP”): The NTP is the written notice from the City’s Purchasing Buyer initiating the start of Work. Any work performed prior to Notice to Proceed shall be at Contractor’s expense and risk. The effective date of delivery of NTP shall be the date the City delivers the NTP to the Vendor. NTP Security Documents: Means the Performance Bond or Letter of Credit under Section 9 of the Contract Terms and Conditions and the certificate of insurance under Section 48 of the Contract Terms and Conditions Or Approved Equivalent (“OAE”): Where a specific brand name is mentioned, it must be assumed that it is followed by “or approved equivalent.” Option: Means the right of the City to purchase additional streetcars, spare parts, special tools or test equipment under the terms and conditions stipulated in the Contract. Party and Parties: Party shall mean each of the City and Contractor and Parties shall mean both the City and Contractor. Performance Bond: The approved form of security furnished by the Contractor and his surety guaranteeing complete performance of the Contract in conformity with the Contract Documents and the payment of legal obligations pertaining to the performance of the Contract as described in Section 9 of the Contract Terms and Conditions. Project: The specific Work required to be performed by the Contractor as described in the Contract Documents. Project Manager, Contractor: The Contractor’s authorized representative in responsible charge of the Work. Proposal: The Vendor’s offer submitted to the City to enter into a contract, containing technical methodology and costs. Reliability: The probability that an equipment or a system will perform its intended functions without service affecting failures and within design parameters under specified operating conditions for which designed and for a specific period of time. Samples: Shall have the meaning given to such term at Special Provision SP-1.9. Seller: Means CAF USA, Inc. SDOT Project Manager: The duly authorized representative acting, directly or through his duly authorized City representatives, within the scope of the particular duties assigned to him on behalf of the City. Shop Drawings: Shall have the meaning given to such term at Special Provision SP-1.9. Specific Warranty and Specific Warranties: Provisions SP-13.2. Shall have the meaning given to such terms at Special Spare Parts: Means the initial order placed by the City for spare parts in accordance with the procedure set out in Special Provisions SP-9.1. Special Tools: Means the initial order placed by the City for special tools in accordance with the procedure set out in Special Provisions SP-9.1. State: State of Washington. Streetcar (or “Car”): Means a single low-floor streetcar meeting the requirements of this Contract. Supplier: Any individual, partnership, form or corporation which provides materials or equipment but not labor or services to the Contractor in partial fulfillment of the Work and who is responsible to the Contractor by virtue of an agreement. Test Equipment: Means the initial order placed by the City for test equipment in accordance with the procedure set out in Special Provisions SP-9.1. Total Base Contract Price: The total not-to-exceed monetary amount in US dollars and cents for the performance of the Work required in connection with the Base Contract, at the execution of the Contract. Page 4 of 31 Contract Terms and Conditions Total Contract Price: At any point in time, the Total Base Contract Price plus the price of any Changes Orders or Options exercised during the Contract period of performance. USDOT: The United States Department of Transportation Work: shall mean the Scope of Work set out in Section 5 of the Contract Terms and Conditions, including the furnishing of labor, materials, equipment, and other incidentals necessary or convenient to the successful completion of the Project and the carrying out of the duties and obligations imposed by the Contract Documents, including alterations, amendments or extensions thereto made by Change Order. Working Days: The days that the City is open for business between 8:00 a.m. and 5:00 p.m., Pacific Coast Time. Saturdays, Sundays, and major holidays do not count as “working days.” 2. Entire Agreement. This Contract including all attachments, consisting of but not limited to existing and future exhibits, statements of work, project schedules, and future Contract amendments comprises the entire agreement between the City of Seattle (Seattle) and the Vendor. The Contract is defined to explicitly include the City’s Purchase Order/Vendor or Blanket Contract, the City’s Solicitation and all Addenda and Vendor’s Offer. Where there are conflicts between these documents, the controlling documents will be in the following sequence, with the first taking priority over the last listed. a. Applicable federal, state and local statutes, laws and regulations; b. Contract Terms and Conditions for Center City Connector Streetcar Vehicles c. All Exhibits to this Contract, in the following order: 1. Special Provisions, Exhibit C (Rev 3.1) 2. Technical Specifications, Exhibit D (Rev 2) 3. Alignment Drawings (FHS Track), Exhibit E dated in February 2017 4. Alignment Drawings (SLU Track), Exhibit F dated in February 2017 5. Alignment Drawings (Tracks), Exhibit G dated in February 2017 6. Vendor’s BAFO, Exhibit H submitted in July 2017 7. Vendor's Original Offer, Exhibit I submitted in April 2017, d. Addendums e. BAFO RFP issued by the City f. Original RFP issued by the City g. Exhibit A and B not used 3. Term of Contract. Ten (10) years 4. Time of Beginning and Completion Vendor shall begin the work stated in the "Scope of Work" (“Work”) Section 4 upon receipt of written Notice to Proceed (“NTP”) from Seattle. Seattle will acknowledge in writing when Work is complete. Time Limits established pursuant to this Contract shall not be extended because of delays for which Vendor is responsible. Time Limits may be extended by Seattle, in writing, through a Change Order mutually agreed by Seattle and the Vendor, and will be extended for its convenience. 5. Scope of Work. Vendor shall provide the following products and/or services as specified below. These services shall be termed “Work” herein. A. The Vendor will design, engineer, supply, build, test, commission, deliver, tender for acceptance and sell, the Streetcars all in accordance with this Contract. B. The Vendor will design, build, deliver and sell the Spare Parts, Special Tools and Test Equipment (Materials) all in accordance with this Contract 6. Not Used. 7. Payment/Payment Procedures. Page 5 of 31 Contract Terms and Conditions Seattle agrees to compensate as specified herein and in accordance with Section 8 of the Special Provisions and the Milestone Payment Schedule, in consideration of acceptable Vendor performance and a properly completed and received invoice, as specified in Section 8 below. Payment shall only be made for services performed and/or product delivered, after receipt, review, and authorization by the City. Payment periods will be computed from the date of receipt of a correct invoice. A payment is considered made on the day it is mailed or is available. This Section is not intended to restrict partial payments that are specified in the Contract. All dollars referenced in this Contract and attachments are US Dollars. Disputed Items: The City may withhold payment for disputed items. The City will promptly notify the Vendor in writing, outlining the disputed items, the amount withheld and actions the Vendor must take to resolve the disputed items. The City default is to delay payment until a revised invoice is submitted and approved. However, the Vendor may request partial payment for the approved amounts, if the unapproved amount represents a small share of the total invoice. The City shall pay the revised invoice within thirty (30) calendar days of receipt. Legal Fees: In any action brought to collect interest due under this Section, the prevailing party is entitled to an award of reasonable attorney fees. 8. Invoices. Invoices must show line item detail and price for each. Invoices must provide the name of the City employee that placed the order, and the City Contract Number. An invoice is considered received when it is date-stamped as received by the office of the recipient who is designated within this Contract. If the invoice is not date-stamped or otherwise marked as received by a department, the date of the invoice will be considered the date the invoice is received. Disputed items include, but are not restricted to, improperly prepared invoices, lack of appropriate supporting documentation, unapproved staff or staff rates on the invoice, and unsatisfactory work product or services. For contracts where prevailing wages are required, the Vendor must include a statement that certifies Prevailing Wages have been paid for the Vendor and subcontractors, if any. 9. Contract Bonds. Within 14 days of the execution of this Contract, Vendor shall furnish to the RFP Coordinator, a Performance Bond (or Letter of Credit) in an amount equal to 25% of the Total Base Contract Price. Vendor shall be named as Principal and Seattle shall be named as Obligee. The Performance Bond (or Letter of Credit) shall be conditioned upon full performance of all obligations imposed upon the Vendor in the Base Order of this Contract and shall remain in full force and effect until Conditional Acceptance of the 10th Streetcar in the Base Contract and replacement by the Warranty Bond. Should the City elect to exercise its Option for Additional Streetcars, a new Performance Bond (or Letter of Credit) in an amount equal to 25% of the increased value and obligation, shall be provided. The Performance Bond (or Letter of Credit) shall be issued in accordance with form as set forth in Attachment [2] revised in June 5, 2008 in the case of a Performance Bond or as set forth in Attachment [3] in the case of a Letter of Credit, as applicable. Performance Bond is subject to approval by the City Attorney as to company, form, and sufficiency of surety. If the City Attorney finds the instrument to be flawed, the Vendor must correct the flaw promptly prior to contract execution or the award may be terminated. The Performance Bond must be executed by a company that is included in the U. S. Department of the Treasury’s Listing of Approved Sureties (Circular 570), and is included on the Washington State Insurance Commissioner’s Authorized Insurance Company List. The Letter of Credit must be executed by a Banking Institution that has a current Moody’s rating of B Page 6 of 31 Contract Terms and Conditions or better and must be presented in person at a branch or office in Seattle, Washington. Should the Vendor fail to provide Performance Bond (or Letter of Credit) in accordance with the terms of this section, the City may terminate this Contract for cause. Upon Conditional Acceptance of the 10th streetcar in the Base Contract and concurrent with the expiration of the Performance Bond (or Letter of Credit), the Vendor shall furnish to the RFP Coordinator a Warranty Bond in an amount of five million ($5M) and this Warranty Bond shall remain in full force and effect one (1) year after Conditional Acceptance of the 10th Streetcar in the Base Contract. Should the City elect to exercise its Option for Additional Streetcars, a new Warranty Bond in an amount equal to 5% of the increased value and obligation shall be provided. The Warranty Bond shall be issued in accordance with the form as set forth in Attachment [4] revised in February 20, 2008. 10. Taxes, Fees and Licenses. A. Fees and Licenses: Vendor shall pay for and maintain in a current status, any license fees, assessments, permit charges, etc., which are necessary for Contract performance. It is the Vendor’s sole responsibility to monitor and determine any changes or the enactment of any subsequent requirements for said fees, assessments, or charges and to immediately comply with said changes during the entire term of this Contract. Vendor must pay all custom duties, brokerage or import fees where applicable as part of the Total Base Contract Price. Vendor shall take all necessary actions to ensure that materials or equipment purchased are expedited through customs. B. Taxes: Where required by state statute, ordinance or regulation, Vendor shall pay for and maintain in current status all taxes that are necessary for Contract performance. Unless otherwise indicated, Seattle agrees to pay State of Washington sales or use taxes on all applicable consumer services and materials purchased. The City is exempt from Federal Excise Tax and no charge by the Vendor shall be made for federal excise taxes and Seattle agrees to furnish Vendor with an exemption certificate when required. C. Withholding payment for taxes/business license fees due the City of Seattle: If specified by Seattle Municipal Code the Director of the Department of Finance and Administrative Services may withhold payment due a City Vendor pending satisfactory resolution of unpaid taxes and fees due the City. D. Supplier is to calculate and enter the appropriate Washington State and local sales tax on the invoice. Tax is to be computed on new items after deduction of any trade-in, in accordance with WAC 458-20-247. 11. Pricing. Except for Base Order System Support, pricing shall be as described in Schedule of Prices - Price Summary Form Attachment [5]. System Support total shall be reduced by $238,000 due to savings on Performance Bond reduction to 25% Contract value (See Section 9). Pricing for Base Order System Support shall be $4,200,095 Pricing shall be subject to the following terms. The Buyer may exempt these requirements for extraordinary conditions that could not have been known by either party at the time of bid or other circumstances beyond the control of both parties, as determined in the opinion of the Buyer. Changes (whether increases or decreases) may only be issued by the City Purchasing Buyer (Department of Finance and Administrative Services). No other individual or City Department is authorized to approve such modifications. Changes shall be issued in writing by the City Purchasing Buyer. Absent a written contract document, such changes shall not be considered effective. The Change Order shall Page 7 of 31 Contract Terms and Conditions require joint signature. Requests for Price Decreases: Vendors can offer volume discounts or improved pricing that is more favorable to the City at any time, when a specific order is placed or when a long-term change in costs allows the vendor to offer a permanent change to the Contract Prices. Requests that reduce pricing charged to the City may be delivered to the City Purchasing Buyer at any time during the Contract period. Such price reductions should use the same pricing structure as the original Contract (i.e. discounts below list, mark-up above, fixed price, or hourly rates). The City may likewise initiate a request to the vendor for price reductions, subject to mutual agreement of the vendor. Requests for Price Increases must be delivered to the City Purchasing Buyer in accordance to the rules below. No other employee may accept a rate increase request on behalf of the City. Any invoice that is sent to the City with pricing above that specified by the City in writing within this Contract or specified within an official written change issued by City Purchasing to this Contract, shall be invalid. Payment of an erroneous invoice does not constitute acceptance of the erroneous pricing, and the City would seek reimbursement of the overpayment or would withhold such overpayment from future invoices. 1. Discount from Manufacturer List Pricing: The City will not accept requests to change discount rates below Manufacturer List prices or mark-up above wholesale, except for those that are more favorable to the City than the original Contract. As manufacturer list prices change, the net price to the City will automatically change in the same percentage as the discount rate to the City. 2. One-time Purchase Order Prices: If the Bid is for a one-time purchase, pricing shall be firm and fixed for that purchase, and shall not be subject to requests for price increases by the Vendor. With this said, the Vendor may submit requests to reduce and decrease the price. 3. Hourly Rates or Service Pricing: For multi-year contracts that provide services. The vendor may submit a price reduction that implements a lower and more favorable cost to the City at anytime during the contract. Vendor requests for rate increases must be no sooner than two years after contract signature, are at the discretion of the Buyer; and must be: a. The direct result of increases to wage rates and do not exceed the U.S. Dept. of Labor Consumer Price Index (CPI) for All Urban Consumers Seattle-Tacoma-Bremerton or other appropriate service rate index agreed upon between the Buyer and the Vendor. A link to the CPI Data is available at http://data.bls.gov/PDQ/outside.jsp?survey=wp b. Calculated over the previous 12-month period. c. Not produce a higher profit margin than that on the original Contract. d. Clearly identify the service titles and the hours of service performed if specified within the contract and the before and after wage rates for such titles. e. Be filed with Buyer a minimum of 90 calendar days before the effective date of proposed increase. f. Be accompanied by detailed documentation acceptable to the Buyer sufficient to warrant the increase. g. The Adjustment (if any) shall remain firm and fixed for at least 365 days after the effective date of the adjustment. h. Should not deviate from the original Contract pricing scheme/methodology 4. Fixed Product Pricing: For product and supply contracts that provide on-going, multiple year supply. The Vendor may submit notice of a price reduction that provides more favorable and lower prices to the City, at any time during the contract. Requests by the Vendor to increase pricing shall be no sooner than two years after the execution of the contract, are at the discretion of the Buyer; and must also be: a. The direct result of increases at the manufacturer's level (or if Vendor is a supplier of a raw material delivered directly to the City such as cement or soil, the increase must be verified at the supplier level). b. Incurred one (1) year after contract commencement date. c. Not produce a higher profit margin than that on the original Contract. Page 8 of 31 Contract Terms and Conditions d. Clearly identify the items impacted by the increase. e. Be filed with Buyer a minimum of 90 calendar days before the effective date of proposed increase. f. Be accompanied by detailed documentation acceptable to the Buyer sufficient to warrant the increase. g. The United States published indices such as the Producer Price Index or other government data may be referenced to help substantiate the Vendor’s documentation. A link to the PPI Commodity Data is available at http://data.bls.gov/PDQ/outside.jsp?survey=wp. h. The Adjustment (if any) shall remain firm and fixed for at least 365 days after the effective date of the adjustment. i. Should not deviate from the original Contract pricing scheme/methodology. j. Escalation for Option Cars (See Exhibit C, Special Provisions, Section 7.6) Seattle will not be bound by prices contained in an invoice that are higher than those in the contract. Unless the higher price has been accepted by the City and the contract amended, the invoice may be rejected and returned to the Vendor for corrections. 12. Cancellation of Orders. The City may cancel an order before delivery without penalty or charge, providing that the Vendor has not incurred any costs or expenses in fulfilling the order. If the City cancels the order after the issue of the NTP, then the Vendor may charge the City reasonable itemized expenses and costs incurred up until the date of the cancellation, that cannot be reasonably avoided or offset by the Vendor. 13. Not used. 14. Not used. 15. Delivery – Idling Prohibited. Vehicles and/or diesel fuel trucks shall not idle at the time and location of the delivery to the City for more than five minutes. The City requires vendors to utilize practices that reduce fuel consumption and emission discharge, including turning off trucks and vehicles during delivery of products to the City. Exceptions to this requirement include when a vehicle is making deliveries and associated power is necessary; when the engine is used to provide power in another device, and if required for proper warm-up and cool-down of the engine. Specific examples include “bucket” trucks that allow a worker to reach wires on telephone poles or tree branches for trimming; and vehicles with a lift on the back of a truck to move products in and out of the truck. The City of Seattle has a commitment to reduction of unnecessary fuel emissions. The City intends to improve air quality by reducing unnecessary air pollution from idling vehicles. Limiting car and truck idling supports cleaner air, healthier work environments, the efficient use of city resources, the public’s enjoyment of City properties and programs, conservation of natural resources, and good stewardship practices. 16. Travel and Other Indirect Charges. Vendor’s proposal is inclusive of all travel and indirect charges. 17. Delivery. Except as instructed otherwise in the Special Provisions, delivery must be made during normal work hours and within timeframes proposed by Vendor herein and as accepted by Seattle. Failure to comply may subject Vendor to non-delivery assessment charges and/or damages as appropriate. Seattle reserves the right to refuse shipment when delivered before or after normal working hours. Vendor shall verify specific working hours of offices and so instruct carrier(s) to deliver accordingly. The acceptance by Seattle of late performance without objection or reservation shall not waive the right of Seattle to claim damages for such breach, nor preclude Seattle from pursuing any other remedy provided herein, including termination, nor constitute a waiver of the requirements for the timely performance of any obligation remaining to be performed by Vendor. All deliveries are to be made to the applicable delivery location in accordance with Interstate Commerce Commission rules or as indicated in Purchase Order. When applicable, Vendor shall take necessary actions to safeguard Page 9 of 31 Contract Terms and Conditions items during inclement weather. Reference Section 2.4, Exhibit C, Special Provisions. 18. Identification. All invoices, packing slips, packages, instruction manuals, correspondence, shipping notices, shipping containers, and other written documents affecting this Contract shall be identified by the applicable purchase order number. Packing lists shall be enclosed with each shipment, indicating the contents therein. 19. Charges for handling. No charges will be allowed for handling that includes but is not limited to packing, wrapping, bags, containers, or reels, unless otherwise stated herein. 20. Contract Notices, Deliverable Materials and Invoices Delivery Official Contract notices shall be delivered to the following addresses (or such other address (es) as either party may designate in writing): If delivered by the U.S. Postal Service, it must be addressed to: Presley Palmer City of Seattle Purchasing and Contracting Services PO Box 94687 Seattle, WA 98124-4687 If delivered by other than the U.S. Postal Service, it must be addressed to: Presley Palmer City of Seattle Purchasing and Contracting Services Seattle Municipal Tower 700 5th Ave., #4112 Seattle, WA 98104-5042 Phone : 206-233-7158 E-Mail : presley.palmer@seattle.gov For Invoices to the City The invoices should be submitted to: Department of Transportation Accounts Payable Unit PO Box 34996 Seattle, WA 98124-4996 Phone: 206-615-1285 Email: Lena.Takemoto@seattle.gov In duplicate, email to Project Manager: Chris.Eilerman@seattle.gov Invoices must clearly display the following (sub-contractor invoices must also include this information): o Contract No. o Contract Title o City Project Manager Name o Backup documentation confirming payment milestones have been achieved o Period in which work was done o Contract Bid Item o Item added by Change Order, if applicable o Cumulative costs for the total project Page 10 of 31 Contract Terms and Conditions Communications concerning project Work, invoices and communications shall be delivered to the City Project Manager per invoice instructions, payment schedule and acceptance procedure as identified in this Contract: City of Seattle, Department of Transportation Attention: Christopher Eilerman Seattle Municipal Tower 700 5th Avenue., #3800 Seattle, WA 98104-4996 Phone: 206-386-4012 E-Mail: Chris.Eilerman@seattle.gov Project Work, invoices and communications shall be delivered to the City Project Manager: If to the Vendor: CAF USA, Inc Ignacio M. Barrenechea 1401 K Street, NW, Suite 1003 Washington DC, 20005 Phone: 202-898-4848 E-Mail: ibarrenechea@caf.net 21. Representations. Vendor represents and warrants that it has the requisite training, skill and experience necessary to provide Work and is appropriately accredited and licensed by all applicable agencies and governmental entities. 22. Warranties. See Section 13 of the Special Provisions. 23. Independent Vendor. It is the intention and understanding of the Parties that Vendor shall be an independent Vendor and that Seattle shall be neither liable for nor obligated to pay sick leave, vacation pay or any other benefit of employment, nor to pay any social security or other tax that may arise as an incident of employment. The Vendor shall pay all income and other taxes as due. Industrial or other insurance that is purchased for the benefit of the Vendor shall not be deemed to convert this Contract to an employment contract. It is recognized that Vendor may or will be performing work during the term for other parties and that Seattle is not the exclusive user of the services that Vendor provides. 24. Inspection. In order to verify performance with this Contract, the Work shall be subject, at all times, to inspection by and with approval of Seattle in accordance with the Inspection and Test Plan, but the making (or failure or delay in making) of such inspection or approval shall not relieve Vendor of responsibility for performance of the Work in accordance with this Contract, notwithstanding Seattle’s knowledge of defective or noncomplying performance, its substantiality or the ease of its discovery. Vendor shall provide sufficient, safe, and proper facilities and equipment for such inspection and free access to such facilities. 25. Title, Risk of Loss, Freight, Overages or Underages. Title and Risk of Loss for Streetcars shall be as defined in Section 4.8 of the Exhibit C, Special Provisions. Title of Spare Parts, Special Tools, and Test Equipment received under this Contract shall remain with the Vendor until they are delivered to the address specified, at which time title passes to Seattle. Regardless of FOB point, Vendor agrees to bear all risks of loss, injury, or destruction of goods and materials ordered herein which occur prior to delivery and acceptance. Such loss, injury, Page 11 of 31 Contract Terms and Conditions or destruction shall not release Vendor from any obligations under. Prices include freight prepaid. Vendor assumes the risk of every increase, and receives the benefit of every decrease, in delivery rates and charges. Shipments shall correspond with the Contract; any unauthorized advance or excess shipment is returnable at Vendor’s expense. 26. Performance. Acceptance by Seattle of unsatisfactory performance with or without objection or reservation shall not waive the right to claim relief permitted under this Contract or in law, nor constitute a waiver of requirements for satisfactory performance of any obligation remaining to be performed by Vendor. 27. Disadvantaged Business Enterprise Requirements The Contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The Vendor shall maintain compliance with its DBE Approval Certification, submitted with its proposal, throughout the period of Contract performance. The Vendor shall not discriminate based on race, color, national origin, or sex in the performance of the Contract. The Vendor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of this DOT-assisted Contract. Failure by the Vendor to carry out these requirements is a material breach of the Contract, which may result in the termination of the Contract or such other remedy as the City of Seattle deems appropriate. Each subcontract the Vendor signs with a Subcontractor must include the assurance in this paragraph (see 49 CFR 26.13(b)). The Vendor is required to pay its subcontractors performing work related to this Contract for satisfactory performance of that work no later than 30 days after the Vendor’s receipt of payment for that work from the Owner. 28. Assignment: Vendor shall not assign any of its obligations under this Contract without Seattle’s written consent, which may be granted or withheld in Seattle’s sole discretion. 29. Subcontracting: Vendor shall not enter into any Key Subcontract with anyone other than a Key Subcontractor without Seattle’s written consent, which may be granted or withheld in Seattle’s sole discretion. Vendor shall ensure that all subcontractors comply with the obligations, requirements and terms and conditions of the subcontract, except for Equal Benefit provisions. Seattle’s consent to subcontract shall not release the Vendor from liability under this Contract, or from any obligation to be performed under this Contract, whether occurring before or after such consent to subcontract. 30. Key Persons and Key Subcontractors. Vendor shall not transfer, reassign or replace any Key Person or Key Subcontractor including the Contractor’s Project Manager, that is determined to be essential or that has been agreed upon in the Vendor’s Subcontracting (Inclusion) Plan, without express written consent of Seattle. If during the term of this Contract, any such Key person leaves the Vendor’s employment or any named Key Subcontract is terminated for any reason, Vendor shall notify Seattle and seek approval for reassignment or replacement with an alternative individual or subcontractor. Upon Seattle’s request, the Vendor shall present to Seattle, one or more subcontractors or individual(s) with greater or equal qualifications as a replacement. Continued achievement of the Subcontracting (Inclusion) Plan that was incorporated into this Contract by reference, if any, and the associated subcontract awards, aspirational goals and efforts, will be one of the considerations in approval of such changes. Seattle’s approval or disapproval shall not be construed to release the Vendor from its obligations under this Contract. Page 12 of 31 Contract Terms and Conditions 31. Equal Employment Opportunity. a. The following equal employment opportunity requirements apply to the underlying Contract: Race, Color, Creed, National Origin, Sex: In accordance with Title VII of the Civil Rights Act, as amended, 42 USC § 2000e, and federal transit laws at 49 USC § 5332, the Vendor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” 41 CFR Parts 60 et seq., (which implement Executive Order No. 11246, “Equal Employment Opportunity,” as amended by Executive Order No. 11375, “Amending Executive Order Relating to Equal Employment Opportunity,” 42 USC § 2000e note), and with any applicable federal statutes, executive orders, regulations, and federal policies that may in the future affect construction activities undertaken in the course of the Project. The Vendor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Vendor agrees to comply with any implementing requirements FTA may issue. b. Age: In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 USC §§ 623 and federal transit law at 49 USC§ 5332, the Vendor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Vendor agrees to comply with any implementing requirements FTA may issue c. Disabilities: In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 USC § 12112, the Vendor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, “Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act,” 29 CFR Part 1630, pertaining to employment of persons with disabilities. In addition, the Vendor agrees to comply with any implementing requirements FTA may issue. 32. CIVIL RIGHTS REQUIREMENTS The following requirements apply to the underlying Contract: A. Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the Vendor agrees that it will not discriminate against any person on the basis of race, color, creed, national origin, sex, age, or disability under any program or activity receiving Federal financial assistance. In addition, the Vendor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. B. Access to Services for Persons with Limited English Proficiency. To the extent applicable and except to the extent that FTA determines otherwise in writing, the Vendor agrees to comply with the policies of Executive Order No. 13166, "Improving Access to Services for Persons with Limited English Proficiency," 42 U.S.C. § 2000d-1 note, and with the provisions of U.S. DOT Notice, “DOT Guidance to Recipients on Special Language Services to Limited English Proficient (LEP) Beneficiaries,” 66 Fed. Reg. 6733 et seq., January 22, 2001. C. Environmental Justice. The Recipient agrees to comply with the policies of Executive Order No. 12898, "Federal Actions to Address Environmental Justice in Minority Populations and LowIncome. D. The vendor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. 33. Equal Benefits. Page 13 of 31 Contract Terms and Conditions Compliance with SMC Ch. 20.45: The Vendor shall comply with the requirements of SMC Ch. 20.45 and Equal Benefits Program Rules implementing such requirements, under which the Vendor is obligated to provide the same or equivalent benefits (“equal benefits”) to its employees with domestic partners as the Vendor provides to its employees with spouses. At Seattle’s request, the Vendor shall provide complete information and verification of the Vendor’s compliance with SMC Ch. 20.45. Failure to cooperate with such a request shall constitute a material breach of this Contract. (For further information about SMC Ch. 20.45 and the Equal Benefits Program Rules, go to review information at http://www.seattle.gov/city-purchasing-and-contracting/social-equity/equal-benefits.) Remedies for Violations of SMC Ch. 20.45: Any violation of this Section shall be a material breach of Contract for which the City may: A. Require Vendor to pay actual damages for each day that the Vendor is in violation of SMC Ch. 20.45 during the term of the Contract; or B. Terminate the Contract; or C. Disqualify Vendor from bidding on or being awarded a City contract for a period of up to five (5) years; or D. Impose such other remedies as specifically provided for in SMC Ch. 20.45 and the Equal Benefits Program Rules promulgated thereunder. 34. Publicity. No news release, advertisement, promotional material, tour, or demonstration related to Seattle’s purchase or use of the Vendor’s product or services performed pursuant to this Contract shall be produced, distributed, or take place, without the prior, specific written approval of the City’s Project Manager or his/her designee. 35. Proprietary and Confidential Information The State of Washington’s Public Records Act (Release/Disclosure of Public Records) Under Washington State Law (reference RCW Chapter 42.56, the Public Records Act) all materials received or created by the City of Seattle are considered public records. These records include but are not limited to bid or proposal submittals, agreement documents, Contract Work product, or other bid material. The State of Washington’s Public Records Act requires that public records must be promptly disclosed by the City upon request unless that RCW or another Washington State statute specifically exempts records from disclosure. Exemptions are narrow and explicit and are listed in Washington State Law (Reference RCW 42.56 and RCW 19.108). As mentioned above, all City of Seattle offices (“the City”) are required to promptly make public records available upon request. However, under Washington State Law some records or portions of records may be considered legally exempt from disclosure. A list and description of records identified as exempt by the Public Records Act can be found in RCW 42.56 and RCW 19.108. If the City receives a public disclosure request for any records or parts of records that Vendor has properly and specifically listed on the City Non-Disclosure Request Form (Form) submitted with Vendor’s bid/proposal, or records that have been specifically identified in this Contract, the City will notify Vendor in writing of the request and will postpone disclosure. While it is not a legal obligation, the City, as a courtesy, will allow Vendor up to ten business days to obtain and serve the City with a court injunction to prevent the City from releasing the records (reference RCW 42.56.540). If you fail to obtain a Court order and serve the City within the ten days, the City may release the documents. The City will not assert an exemption from disclosure on Vendor’s behalf. If Vendor believes that its records are exempt from disclosure, Vendor is obligated to seek an injunction under RCW 42.56.540. Vendor acknowledges that the City will have no obligation or liability to Vendor if the records are disclosed. Page 14 of 31 Contract Terms and Conditions 36. General Legal Requirements. A. General Requirement: Vendor, at no expense to Seattle, shall comply with all applicable laws of the United States to include any Federal Grant requirements and the State of Washington; the Charter and ordinances of Seattle; and City rules, regulations. Without limiting the generality of this paragraph, the Vendor shall specifically comply with the following requirements of this Section. B. Licenses and Similar Authorizations: Vendor, at no expense to Seattle, shall secure and maintain in full force and effect during the term of this Contract all required licenses, permits, and similar legal authorizations, and comply with all requirements thereof. C. Taxes: The Vendor shall pay, before delinquency, all taxes, import duties, levies, and assessments arising from its activities and undertakings under this Contract; taxes levied on its property, equipment and improvements; and taxes on the Vendor's interest in this Contract. 37. ADA, SECTION 504 AND OTHER FEDERAL REQUIREMENTS The Vendor is also required to comply with all applicable requirements of the Americans with Disabilities Act of 1990 (ADA), 42 USC §§ 12101, et seq.; Section 504 of the Rehabilitation Act of 1973, as amended, 29 USC § 794; and 49 USC § 5301(d), and the following regulations and any amendments thereto: A. U.S. Department of Transportation regulations, "Transportation Services for Individuals with Disabilities (ADA)," 49 CFR Part 37; B. U.S. Department of Transportation regulations, "Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance," 49 CFR Part 27; C. U.S. Department of Justice (DOJ) regulations, "Nondiscrimination on the Basis of Disability in State and Local federal government Services," 28 CFR Part 35; D. DOJ regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities," 28 CFR Part 36; E. U.S. General Services Administration regulations, "Accommodations for the Physically Handicapped," 41 CFR Subpart 101-19; F. U.S. Equal Employment Opportunity Commission (EEOC) "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 CFR Part 1630; G. U.S. Federal Communications Commission regulations, "Telecommunications Relay Services and Related Customer Premises Equipment for the Hearing and Speech Disabled," 47 CFR Part 64, Subpart F; and H. FTA regulations, "Transportation for Elderly and Handicapped Persons," 49 CFR Part 609. I. Activities Not Involving Construction. Federal laws and regulations providing wage and hour protections for nonconstruction employees, including: (1). Section 102 of the Contract Work Hours and Safety Standards Act, as amendment, 40 U.S.C. § 3702, and other relevant parts of the Act, 40 U.S.C. § 3701 et seq., and (2). U.S. Department of Labor (DOL) regulations, “Labor Standards Provisions Applicable to Contracts Governing 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. J. Any implementing requirements that the FTA may issue. 38. OSHA/WISHA. Vendor agrees to comply with conditions of the Federal Occupational Safety and Health Acts of 1970 (OSHA), as may be amended, and, if it has a workplace within the State of Washington, the Page 15 of 31 Contract Terms and Conditions Washington Industrial Safety and Health Act of 1973 (WISHA), as may be amended, and the standards and regulations issued thereunder and certifies that all items furnished and purchased under this order will conform to and comply with said standards and regulations. Vendor further agrees to indemnify and hold harmless purchaser from all damages assessed against purchaser as a result of Vendor’s failure to comply with the acts and standards thereunder and for the failure of the items furnished under this order to so comply. 39. Contract Work Hours and Safety Standards. For all contracts that employ mechanics or laborers, the Vendor and all subs shall comply with Sections 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of Labor regulations (29 CFR part 5). Under Section 102 of the Act, each Vendor shall be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provide that the worker is compensated at a rate of not less than 1 ½ times the basic rate of pay for all hours worked in excess of 40 hours in the work week. Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. 40. Beck Notice. Notification of Employee Rights Concerning Payment of Union Dues or Fees (Executive Order 13201) shall apply to all contracts above $100,000. 41. Clean Air Act and Federal Water Pollution Control Act. The Vendor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 422 U.S.C. §§ 7401 et seq. The Vendor agrees to report each violation to City of Seattle and understands and agrees that City of Seattle will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. The Vendor also agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et. The Vendor agrees to report each violation to City of Seattle and understands and agrees that City of Seattle will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. The Vendor agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by the FTA. 42. Byrd Anti-Lobbying Amendment. A. This Contract is subject to Section 319, Public Law 101-121 (31 U.S.C. §1352) and U.S. DOT regulations "New Restrictions on Lobbying," 49 CFR Part 20, (which is by this reference incorporated herein) which prohibits Federal funds from being expended to influence or to attempt to influence an officer or employee of any agency, members of Congress, an office or employee of Congress or an employee of any Member of Congress in connection with the awarding of any federally funded contract, the making of any Federal grant or loan, or entering into any cooperative contract and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative contract. Vendors and Subcontractors at any time who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR Part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or any employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-Federal funds with respect to that Federal contract, grant Page 16 of 31 Contract Terms and Conditions or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient. The Vendor shall submit the "Certification Regarding Lobbying" included in the RFP for this Project. The Vendor's signature on this certification shall certify that: a) it has not engaged in the prohibited activity and b) the language of the certification shall be included in all lower tier subcontracts which exceed $100,000, and that all such subcontractors shall certify and disclose accordingly. The City is responsible for keeping the certification form of the Vendor, who is in turn responsible for keeping the certification forms of subcontractors. Further, by executing the Contract, the Vendor agrees to comply with these laws and regulations. B. If the Vendor has engaged in any lobbying activities to influence or attempt to influence the awarding of this Contract, or others of those described above in item A, the Vendor must disclose these activities. In such a case, the Vendor shall complete Standard Form SF-LLL, "Disclosure of Lobbying Activities" and must send all disclosure forms to the City to be forwarded to the FTA. This form is also embedded in the RFP document. The Vendor and any subcontractors shall file a disclosure form at the end of each calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of a previously filed disclosure form. An event that materially affects the accuracy of the information reported includes: 1. A cumulative increase of $25,000 or more in the amount paid or expected to be paid for influencing or attempting to influence this federally funded Contract; or 2. A change in the person(s) influencing or attempting to influence this federally funded Contract; or 3. A change in the officer(s), employee(s) or member contracted to influence or attempt to influence this federally funded Contract. 43. Federal Energy Conservation Requirements The Vendor agrees to comply with mandatory standards and policies relating to energy efficiency that are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. 44. NO FEDERAL GOVERNMENT OBLIGATION TO THIRD PARTIES The City of Seattle and Vendor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying Contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this Contract and shall not be subject to any obligations or liabilities to the City of Seattle, Vendor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying Contract. The Vendor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed the clause shall not be modified, except to identify the sub-Vendor who will be subject to its provisions. 45. PROGRAM FRAUD AND FALSE OR FRADULENT STATEMENTS AND RELATED ACTS The Vendor acknowledges the provisions of 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, apply to its actions pertaining to this Project. Upon execution of the underlying Contract, the Vendor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying Contract or the FTA assisted project for which this Contract Work is being performed. In addition to other penalties that may be applicable, the Vendor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Vendor to the extent the Federal Government deems appropriate. The Vendor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent Page 17 of 31 Contract Terms and Conditions claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307 (n)(1) on the Vendor, to the extent the Federal Government deems appropriate. The Vendor agrees to include the above two paragraphs in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. 46. Indemnification. To the extent permitted by law, the Vendor shall protect, defend, indemnify and hold the City harmless from and against all claims, demands, damages, costs, actions and causes of actions, liabilities, fines, penalties, judgments, expenses and attorney fees, resulting from the injury or death of any person or the damage to or destruction of property, or the infringement of any patent, copyright, or trademark, or trade secret caused by the fault or negligence of the Vendor, its subcontractors, assigns or other persons performing work on the Project at Vendor’s request, or the Vendor’s violation of any law, ordinance or regulation, contract provision or term, or condition of regulatory authorization or permit, except for such claims, demands, damages, costs, actions and causes of actions, liabilities, fines, penalties, judgements, expenses and attorney fees resulting from the sole negligence or fault of the City, its subcontractors, assigns or other persons acting for the City. As to the City of Seattle, the Vendor waives any immunity it may have under RCW Title 51 or any other Worker’s Compensation statute. Vendor’s aggregate liability to the City arising out of or in conjunction with this Contract (including the payment of liquidated damages) shall not exceed one hundred (100) percent of the Total Base Contract Price. No party shall be liable to the other for any direct or indirect loss of use, loss of revenue, loss of profit or loss of interest or for any special damages, consequential or indirect losses which may arise in connection with this Contract provided that liquidated damages shall not be consider indirect or consequential losses. 47. Background Checks and Immigrant Status Background checks will not be required for workers that will be performing the Work under this Contract. The City has strict policies regarding the use of Background checks, criminal checks and immigrant status for contract workers. The policies are incorporated into the Contract and available for viewing on-line at http://www.seattle.gov/business/WithSeattle.htm 48. Insurance Vendor shall maintain at its own expense at all times during the term of this Contract the following insurance, as well as any other additional coverage requirements issued by the City. 1. Description a. Except as otherwise specified, the Vendor shall at its sole cost and expense, obtain and maintain during the entire term of this Contract the minimum insurance set below. b. In the event the Vendor is a Joint Venture, the Joint Venture shall be the named insured and these insurance requirements shall apply to each Joint Venture member separately. c. By requiring such minimum insurance, the City shall not be deemed or construed to have assessed the risks that may be applicable to the Vendor under this Contract. The Vendor shall assess its own risks and, if it deems appropriate and/or prudent, maintain greater limits and/or broader coverage. d. The fact that insurance is obtained by Vendor shall not be deemed to release or diminish the liability of the Vendor, including without limitation, liability under the indemnity provisions of this Contract. Damages recoverable by the City shall not be limited to the amount of the Page 18 of 31 Contract Terms and Conditions required insurance coverage. 2. Insurance Coverages a. General Liability: Commercial General Liability for bodily injury including death, personal injury, and property damage, with contractual and completed operations liability endorsement, and Employer’s Liability coverage, utilizing insurers and coverage forms acceptable to the City, with limits of at least $10,000,000 per occurrence and $10,000,000 general aggregate. b. Automobile Liability: Commercial Auto Liability coverage for bodily injury and property damage utilizing insurers and coverage forms acceptable to the City, with a limit of at least $1,000,000 combined single limit. c. Product Liability: $5,000,000 per occurrence, $10,000,000 annual aggregate for a period of five years after acceptance of the last vehicle delivered under the Contract. d. Not used. Such liability insurance, identified in 2.a, 2.b, 2.c and 2.d above, shall name the City of Seattle, its officers, directors, agents, and employees as additional insured with respect to the Work, including completed operations, under this Contract. e. Property damage coverage of Streetcars and all other Contract deliverables at 100% of the Contract amount or at replacement cost at the time of loss. f. Inland Marine/Equipment Floater Coverage: Inland Marine/Equipment Floater coverage shall be maintained to protect against physical loss or damage of goods, materials and/or equipment while in transit or storage. This coverage may be provided as part of, or as an endorsement to the property damage coverage above, subject to the limits, deductibles and terms and conditions stipulated in this provision. g. Workers Compensation: The Vendor will secure its liability for industrial injury to its employees in accordance with the provisions of Title 51 of the Revised Code of Washington. The Vendor will be responsible for Workers Compensation insurance for any subcontractor who provides work under subcontract. If the Vendor is qualified as a self-insurer under Chapter 51.14 of the Revised Code of Washington, it will so certify to the City by submitting a letter signed by a corporate officer, indicating that it is a qualified self-insurer, and setting forth the limits of any policy of excess insurance covering its employees. h. Other Insurance: Other insurance as may be deemed appropriate to cover the specified risk and exposure of the Scope of Work or changes to the Scope of Work evaluated by the City. The costs of other insurance shall be borne by contracting parties as mutually agreed. 3. General Provisions a. Certificates and Policies: Prior to commencement of Work for this Contract, the Vendor shall provide the City with certificates of insurance showing insurance coverage in compliance with the foregoing paragraphs, which are acceptable to the City. Such certificates shall reference the City’s contract number, 0000003681 and title, Vehicle Street Car. The Vendor will provide 30 calendar days’ advance written notice to the City in the event the Vendor’s insurance policies are cancelled, not renewed, or materially reduced in coverage. Should the Vendor neglect to obtain and maintain in force any of the insurance required in this Section, the City may suspend or terminate this Contract; or if applicable, and at the discretion of the City of Seattle, shall serve as grounds for the City to procure or renew insurance coverage with any related costs of premiums to be repaid by Vendor or reduced and/or offset against the Contract. Suspension or termination of this Contract shall not relieve the Vendor from insurance obligations hereunder. Page 19 of 31 Contract Terms and Conditions b. Taking into account the scope of work and services to be performed by a subcontractor and/or subcontractor, the Vendor shall prudently determine whether, and in what amounts, each subcontractor and/or subcontractor shall obtain and maintain commercial general liability and any other insurance coverage. Any insurance required of subcontractors and/or subcontractors shall, where appropriate and/or applicable, name the City of Seattle as an additional insured. c. Vendor’s insurance for General Liability, Automobile Liability and Product Liability (and Marine General Liability, if applicable) shall be primary as respects the City of Seattle, and any other insurance maintained by the City shall be excess and not contributing insurance with the Vendor’s insurance. d. The Vendor and its insurers shall require that the applicable insurance policy(ies) be endorsed to waive their right of subrogation against the City, to the extent that the waiver shall not apply where damage or loss is caused by the willful misconduct or gross negligence of the beneficiary of such waiver. The Vendor and its insurers also waive their right of subrogation against the City for loss of its owned or leased property or property under its care, custody and control. e. Complete copies of the Additional Insured and/or Loss Payee Endorsement(s) required in 2.a, 2.b, 2.c, 2.d, 2.e, 2.f and 2.h above, the Waiver of Subrogation Endorsements, and the Primary and Non-Contributory Endorsements, or policy provisions, from the General Liability and Automobile Liability policies (and Marine General Liability, if applicable) shall be attached to the Certificates of Insurance required in this Section. f. Policies shall be purchased from companies that are authorized to do business in the USA and country where Vendor headquarters is located, if not USA. Insurance must cover the territory of the USA. If policies are not in English, Vendor shall provide to the City certified English translations of all required insurance policies at the same time the certificates of insurance are provided. g. No provision in this Section shall be construed to limit the liability of the Vendor for work not done in accordance with the Contract, or express or implied warranties. The Vendor’s liability for the Work shall extend as far as the appropriate periods of limitation provided by law and up to any legal limits. h. The Vendor may obtain any combination of coverage or limits that effectively provides the same or better amounts and types of coverage as stipulated above, subject to review and approval by the City. i. Vendor’s insurance policy shall include a “separation of insureds” or “severability” clause that applies coverage separately to each insured and additional insured, except with respect to the limits of the insurer’s liability. Vendor’s insurance policy shall not contain any provision, exclusion or endorsement that limits, bars, or effectively precludes the City of Seattle from coverage or asserting a claim under the Vendor’s insurance policy on the basis that the coverage or claim is brought by an insured or additional insured against an insured or additional insured under the policy. Vendor’s CGL policy shall NOT include any of the following Endorsements (or their equivalent endorsement or exclusions): (a) Contractual Liability Limitation, (CGL Form 21 39 or equivalent), b) Amendment Of Insured Contract Definition, (CGL Form 24 26 or equivalent), (c) Limitation of Coverage to Designated Premises or Project, (CGL Form 21 44 or equivalent), (d) any endorsement modifying or deleting the exception to the Employer’s Liability exclusion, (e) any “Insured vs. Insured” or “cross-liability” exclusion, and (f) any type of punitive, exemplary or multiplied damages exclusion. Page 20 of 31 Contract Terms and Conditions j. The Vendor warrants that this Contract has been thoroughly reviewed by the Vendor’s insurance agent(s)/broker(s), who have been instructed by the Vendor to procure the insurance coverage required by this Contract. 49. Audit, Access to Records and Reports. a. Upon request, Vendor shall permit Seattle, and any other governmental agency involved in the funding of the Work (“Agency”), to inspect and audit all pertinent books and records of Vendor, any subcontractor, or any other person or entity that performed work in connection with or related to the Work, at any and all times deemed necessary by Seattle or Agency, including up to six years after the final payment or release of withheld amounts has been made under this Contract. Such inspection and audit shall occur in King County, Washington or other such mutually agreed upon location. The Vendor shall supply Seattle with, or shall permit Seattle to make, a copy of any books and records and any portion thereof. The Vendor shall ensure that such inspection and audit and copying right of Seattle and Agency is a condition of any subcontract, agreement or other arrangement under which any other person or entity is permitted to perform work under this Contract. Per Section 5 of the RFP in section titled, Proprietary Materials, Vendor may Mark records as exempt from disclosure (protected, confidential, or proprietary). Seattle will protect such information as detailed in Section 5. b. The Vendor shall comply with reporting requirements of the U.S. Department of Transportation grant management rules, and any other reports required by the Federal Government. c. Vendor agrees to maintain intact and readily accessible all work, materials, payrolls, books, documents, papers, data, records and accounts pertaining to the Contract. Vendor agrees to permit the Secretary of Transportation, the Comptroller General of the United States and the City, or their authorized representatives, access to any work, materials, payrolls, books, documents, papers, data, records and accounts involving the Contract for the purpose of making audit, examination, excerpts, and transcriptions pertaining to the Contract as it affects the Project. Vendor shall retain all required records for six (6) years after the City has made final payments. The period of access and examination for records that relate to (1) litigation or the settlement of claims arising out of the performance of this Contract, or (2) costs and expenses of this Contract as to which exception has been taken by the Comptroller General of the United States or the U.S. Department of Transportation, or any of their duly authorized representatives, shall continue until such litigation, claims, or exceptions have been disposed of. Vendor shall require its subcontractors to also comply with the provisions of this Paragraph c, and shall include the provisions of this Paragraph c in each of its subcontracts. 50. Contractual Relationship The relationship of Vendor to Seattle by reason of this Contract shall be that of an independent Vendor. This Contract does not authorize Vendor to act as the agent or legal representative of Seattle for any purpose whatsoever. Vendor is not granted any express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of Seattle or to bind Seattle in any manner or thing whatsoever. 51. Federal Debarment for Primes and all Subcontractors. This Contract is a covered transaction for purposes of 49 CFR Part 29. As such, the Vendor is required to verify that none of the Vendor, its principals, as defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29.945. The Vendor is required to comply with 49 CFR 29, Subpart C and must include the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters. Vendor shall immediately notify the City of any suspension or debarment or other action that excludes Page 21 of 31 Contract Terms and Conditions the Vendor and any subcontractor from participation in Federal contracting. Vendor shall verify all subcontractors that are intended and/or used by the Vendor for performance of City work are in good standing and are not debarred, suspended or otherwise ineligible by the Federal Government. Debarment shall be verified at https://www.sam.gov/portal/public/SAM/#1 The Vendor shall keep proof of such verification within the Vendor records. 52. FEDERAL CHANGES Vendor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Contract between City of Seattle and FTA, as they may be amended or promulgated from time to time during the term of this Contract. Vendor’s failure to so comply shall constitute a material breach of this Contract. Any laws or regulations enacted after the date for submission of proposals that affect Contract Price or schedule will be reviewed and an equitable adjustment will be negotiated between the City and Vendor. 53. 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 Contract. The Vendor shall not perform any act, fail to perform any act, or refuse to comply with any City of Seattle requests which would cause City of Seattle to be in violation of the FTA terms and conditions. 54. PRIVACY A. Should the Vendor, or any of its subcontractors, or their employees administer any system of records on behalf of the federal government, the Privacy Act of 1974, 5 USC § 552a, imposes information restrictions on the party administering the system of records. B. For purposes of the Privacy Act, when the Contract involves the operation of a system of records on individuals to accomplish a government function, Sound Transit and any Vendors, third-party Vendors, subcontractors, and their employees involved therein are government employees with respect to the government function. The requirements of the Act, including the civil and criminal penalties for violations of the Act, apply to those individuals involved. Failure to comply with the terms of the Act or this provision of this Contract will make this Contract subject to termination. C. The Vendor agrees to include this clause in all subcontracts awarded under this Contract that require the design, development, or operation of a system of records on individuals subject to the Act. 55. BUY AMERICA Vendor shall comply with 49 USC 5323, FTA’s “Buy America” regulations at 49 CFR Part 661 and any amendments thereto, and any implementing guidance issued by FTA. See also Special Provisions Section 1.14. 56. CARGO PREFERENCE - USE OF UNITED STATES-FLAG VESSELS The Vendor agrees: A. to use privately owned United States-Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to the underlying Contract to the extent such vessels are available at fair and reasonable rates for United States-Flag commercial vessels; B. to furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 working days following the date of leading for shipments originating outside the United States, a legible copy of a rated, "on-board" commercial ocean bill-of -lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office Page 22 of 31 Contract Terms and Conditions of Market Development, Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the Vendor in the case of a subcontractor's bill-of-lading.) C. to include these requirements in all subcontracts issued pursuant to this Contract when the subcontract may involve the transport of equipment, material, or commodities by ocean vessel. 57. FLY AMERICA The Federal Government will not participate in the costs of international air transportation of any persons involved in or property acquired for the Project unless that air transportation is provided by US flag air carriers to the extent service by these carriers is available, as required by the International Air Transportation Fair Competitive Practices Act of 1974, as amended, 49 USC § 40118, in accordance with US GAO regulations, "Uniform Standards and Procedures for Transportation Transactions." 4 CFR Part 52, and US GAO Guidelines for Implementation of the "Fly America Act," B-138942, 1981 US Comp. Gen. LEXIS 2116, March 31, 1981. 58. Supervision and Coordination. Vendor shall: • Competently and efficiently, supervise and direct the implementation and completion of all Contract requirements specified herein. • Designate in its bid or proposal to Seattle, a representative(s) with the authority to legally commit Vendor’s firm. All communications given or received from the Vendor’s representative shall be binding on the Vendor. • Promote and offer to Purchasers only those materials, equipment and/or services as stated herein and allowed for by Contractual requirements. Violation of this condition will be grounds for Contract termination. 59. Involvement of Current and Former City Employees If a Vendor has any current or former City employees, official or volunteer, working or assisting on solicitation of City business or on completion of an awarded contract, you must provide written notice to City Purchasing of the current or former City official, employee or volunteer’s name. The Vendor Questionnaire within your bid documents prompts you to answer that question. You must continue to update that information to City Purchasing during the full course of the contract. The Vendor is to be aware and familiar with the Ethics Code, and educate vendor workers accordingly. 60. Anti-Trust Overcharges. Seattle maintains that, in actual practice, overcharges resulting from antitrust violations are borne by the purchaser. Therefore, the Vendor hereby assigns to Seattle any and all claims for such overcharges except overcharges which result from antitrust violations commencing after the price is established under this Contract and which are not passed on to Seattle under an escalation clause. 61. No Conflict of Interest. Vendor confirms that Vendor does not have a business interest or a close family relationship with any City officer or employee who was, is, or will be involved in the Vendor selection, negotiation, drafting, signing, administration, or evaluating the Vendor's performance. 62. No Gifts or Gratuities. Vendor shall not directly or indirectly offer anything of value (such as retainers, loans, entertainment, favors, gifts, tickets, trips, favors, bonuses, donations, special discounts, work or meals) to any City employee, volunteer or official, that is intended, or may appear to a reasonable person to be intended, to obtain or give special consideration to the Vendor. Promotional items worth less than $25 may be distributed by the vendor to City employees if the Vendor uses the items as routine and standard promotions for business. Any violation of this provision may result in termination of this Contract. Nothing in this Contract prohibits donations to campaigns for election to City office, so long as the donation is disclosed as required by the election campaign disclosure laws of the City and of the State. Page 23 of 31 Contract Terms and Conditions 63. Contract Workers with 1,000 Hours Throughout the life of the Contract, Vendor shall provide written notice to City Purchasing and the City Project Manager of any contract worker that shall perform more than 1,000 hours of contract work for the City within a rolling 12-month period. Such hours include those that the contract worker performs for the Contract, and any other hours that the worker performs for the City under any other contract. Such workers are subject to the requirements of the City Ethics Code, Seattle Municipal Code 4.16. The Vendor shall advise their Contract workers as applicable. 64. Errors & Omissions: Correction. Vendor shall be responsible for the professional quality, technical accuracy, and the coordination of all designs, drawings, specifications, and other services furnished by or on the behalf of the Vendor under this Contract. The Vendor, without additional compensation, shall correct or revise any errors or omissions in the designs, drawings, specifications, and/or other Vendor services immediately upon notification by Seattle. The obligation provided for in this section with respect to any acts or omissions during the term of this Contract shall survive any termination or expiration of this Contract and shall be in addition to all other obligations and liabilities of the Vendor. 65. Intellectual Property Rights. Patents: Vendor, or the relevant subcontractor, hereby retains absolute ownership and all rights in any invention, improvement, or discovery, together with all related information, including but not limited to, designs, specifications, data, patent rights and findings developed directly in connection with the performance of this Contract or any subcontract hereunder (the “Intellectual Property”). The Vendor does not convey to Seattle, nor does Seattle obtain, any right to any document or material utilized by Vendor that was created or produced separate from this Contract or was preexisting material not already owned by Seattle. The Vendor grants Seattle an irrevocable, non-exclusive, fully paid, royaltyfree license to use the Intellectual Property but only as an inseparable part of the Work to use, operate and maintain the Streetcars and as limited where documents are proprietary and legally exempt from disclosure. Copyrights: For materials and documents prepared by Vendor in connection with the Work, Vendor shall retain the copyright (including the right of reuse) whether or not the Work is completed. Vendor grants to Seattle a non-exclusive, irrevocable, unlimited, royalty-free license to use every document and all other materials prepared by the Vendor for Seattle under this Contract. Seattle may make and retain copies of such documents for its information and reference in connection with their use on the Project for the City’s sole and limited purposes of operating, maintaining and repairing the Streetcars of the Contract and further development of a streetcar system. The Vendor does not represent or warrant that such documents are suitable for reuse by Seattle, or others, on extensions of the Project, or on any other project. Vendor represents and warrants that it has all necessary legal authority to make the assignments and grant the licenses required by this Section. 66. Interlocal Cooperation Act. RCW 39.34 allows cooperative purchasing between public agencies, and other political subdivisions. SMC 20.60.100 also allows non profits to use these agreements. If a public agency files or has filed an Intergovernmental Cooperative Purchasing Agreement with the City of Seattle, those agencies are eligible to purchase from contracts established by the City. Such agencies may ask City of Seattle Vendors to accept orders from the agency, citing the City of Seattle Contract as the basis for the order. The Vendor may accept or decline such orders. If the Vendor accepts an order from another public agency using the City of Seattle Contract as the basis, the Vendor agrees to sell additional items at the Contract Prices, terms and conditions. The City of Seattle accepts no responsibility for the payment of the purchase price by other governmental agencies. 67. Expansion. Any resultant contract or Purchase Order may be expanded as allowed below. A modification may Page 24 of 31 Contract Terms and Conditions be considered per the criteria and procedures below, for any ongoing Blanket contract that has not yet expired. Likewise, a one-time Purchase Order may be modified if the bid reserved the right for additional orders to be placed within a specified period of time, or if the project or body of work associated with a Purchase Order is still active. Such modifications must be mutually agreed. The only person authorized to make such agreements on behalf of the City is the Buyer from the City Purchasing Division (Department of Finance and Administrative Services). No other City employee is authorized to make such written notices. Expansions must be issued in writing from the City Buyer in a formal notice. The Buyer will ensure the expansion meets the following criteria collectively: (a) it could not be separately bid, (b) the change is for a reasonable purpose, (c) the change was not reasonably known to either the City or vendors at time of bid or else was mentioned as a possibility in the bid (such as a change in environmental regulation or other law); (d) the change is not significant enough to be reasonably regarded as an independent body of work; (e) the change could not have attracted a different field of competition; and (f) the change does not vary the essential identity or main purpose of the contract. The Buyer shall make this determination, and may make exceptions for immaterial changes, emergency or sole source conditions, or for other situations as required in the opinion of the Buyer. Note that certain changes are not considered an expansion of scope, including an increase in quantities ordered, the exercise of options and alternates in the bid, or ordering of work originally identified within the originating solicitation. If such changes are approved, changes are conducted as a written order issued by the City Purchasing Buyer in writing to the Vendor. 68. Disputes. The parties shall endeavor to resolve any dispute or misunderstanding that may arise under this Contract concerning Vendor’s performance, if mutually agreed to be appropriate, through negotiations between the Vendor’s Project Manager and Seattle’s Project Manager, or if mutually agreed, referred to the City’s named representative and the Vendor’s senior executive(s). Either party may decline or discontinue such discussions and may then pursue other means to resolve such disputes including termination as allowed for within the Contract, or may by mutual agreement pursue other dispute alternatives such as alternate dispute resolution processes. Nothing in this dispute process shall in any way mitigate the rights, if any, of either party to terminate the Contract for cause or convenience. Notwithstanding all above, if Seattle believes in good faith that some portion of Work has not been completed satisfactorily, Seattle may require Vendor to correct such Work prior to Seattle payment. In such event, Seattle will provide to Vendor an explanation of the concern and the remedy that Seattle expects. Seattle may withhold from any payment that is otherwise due, an amount that Seattle in good faith finds to be under dispute, or if the Vendor does not provide a sufficient remedy, Seattle may retain the amount equal to the cost to Seattle for otherwise correcting or remedying the Work not properly completed. 69. Termination. A. For Cause: Seattle may terminate this Contract if the Vendor is in material breach of any of the material terms of this Contract, and such breach has not been corrected to Seattle’s reasonable satisfaction in a reasonable amount of time. B. For City’s Convenience: Seattle may terminate this Contract at any time, without cause and for any reason including Seattle’s convenience, upon written notice to the Vendor. C. Nonappropriation of Funds: Seattle may terminate this Contract at any time without notice due to nonappropriation of funds, whether such funds are local, state or federal grants, and no such notice shall be required notwithstanding any notice requirements that may be agreed upon for other causes of termination. D. Acts of Insolvency: Seattle may terminate this Contract by written notice to Vendor if the Vendor becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the Page 25 of 31 Contract Terms and Conditions appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign, or is wound up or liquidated, voluntarily or otherwise. E. Termination for Gratuities: Seattle may terminate this Contract by written notice to Vendor if Seattle finds that any gratuity in the form of entertainment, a gift, or otherwise, was offered to or given by the Vendor or any agent therefor to any City official, officer or employee. F. Notice: In the event of termination for cause, Seattle shall be required to provide advance notice of termination stating the time period in which cure is permitted and unless such material default is rectified or the Vendor demonstrates continuous progress for a cure to the satisfaction of the City within the time period of receipt of such notice of termination, the Vendor shall be in default. In such case, the Vendor shall either discontinue or continue to provide products and services as required by the City until the effective date provided in the termination notice. G. Actions Upon Termination: In the event of termination not the fault of the Vendor, Vendor shall be paid for the services properly performed prior to the effective termination date that has been specified by the Buyer, together with any reimbursable expenses then due, but in no event shall such compensation exceed the maximum compensation to be paid under the Contract. Vendor agrees that this payment shall fully and adequately compensate Vendor and all subcontractors for all profits, costs, expenses, losses, liabilities, damages, taxes, and charges of any kind whatsoever (whether foreseen or unforeseen) attributable to the termination of this Contract. Upon termination for any reason, Vendor shall provide Seattle with the most current design documents, Contract documents, writings and other product it has completed to the date of termination, along with copies of all Project-related correspondence and similar items. Seattle shall have the same rights to use these materials as if termination had not occurred. 70. Force Majeure – Suspension and Termination. Subject to the provisions of Section 2.4 of the Exhibit C, Special Provisions, this Section applies in the event that either party is unable to perform the obligations of this Contract because of a Force Majeure event as defined herein, to the extent that the Contract obligations must be suspended in full. A Force Majeure event is an event that prohibits performance and is beyond the control of the party. Such events may include natural or man-made disasters, or an action or decree of a superior governmental body, which prevents performance. Force Majeure under this Section shall only apply in the event that performance is rendered not possible by either party or its agents. Should it be possible to provide partial performance that is acceptable to the City under Section 71 (Emergencies or Disasters), Section 71 below shall instead be in force. Should either party suffer from a Force Majeure event and is unable to provide performance, such party shall give notice to the remaining party as soon as practical and shall do everything possible to resume performance. Upon receipt of such notice, the party shall be excused from such performance as is affected by the Force Majeure Event for the period of such Event. If such Event affects the delivery date or warranty provisions of this Agreement, such date or warranty period shall automatically be extended for a period equal to the duration of such Event. 71. Major Emergencies or Disasters. The City may undergo an emergency or disaster that may require the Vendor to either increase or decrease quantities from normal deliveries, or that may disrupt the Vendor’s ability to provide normal performance. Such events may include, but are not limited to, a storm, high wind, earthquake, flood, hazardous material release, and transportation mishap, loss of any utility service, fire, terrorist activity or any combination of the above. In such events, the following shall apply. Page 26 of 31 Contract Terms and Conditions (a) The City shall notify the Vendor that the City is experiencing an emergency or disaster, and will request emergency and priority services from the Vendor. (b) The City may request that the Vendor provide either increased or decreased quantities from traditional orders, or may request Vendor provide additional products or services. (c) Upon such notice by the City, the Vendor shall make reasonable efforts to provide the City the materials in the quantities requested and within the schedule specified by the City, adhering to the conditions in this Section. (d) The City of Seattle shall be the customer of first priority for the Vendor, except where preceded by State or Federal government mandates. The Vendor shall provide its best and priority efforts to provide the requested goods and/or services to the City of Seattle in as complete and timely manner as possible. Such efforts by the Vendor are not to be diminished as a result of Vendor providing service to other customers, except as mandated by State or Federal governments. (e) If the Vendor is unable to respond in the time and/or quantities requested by the City, the Vendor shall promptly assist the City to the extent practicable, to gain access to alternative materials and/or services. This may include: a. Coordinating with other distributors or subsidiaries beyond those in the local region to fulfill order requests; b. Offering the City substitutions provided the Vendor obtains prior approval from the City for such substitution. 72. City Debarment. In accordance with SMC Ch. 20.70, the Director of Executive Administration or designee may debar a Vendor from entering into a contract with the City or from acting as a subcontractor on any contract with the City for up to five years after determining that any of the following reasons exist: a. Vendor has received overall performance evaluations of deficient, inadequate, or substandard performance on three or more City contracts. b. Vendor failed to comply with City ordinances or contract terms, including but not limited to, ordinance or contract terms relating to small business utilization, discrimination, prevailing wage requirements, equal benefits, or apprentice utilization. c. Vendor abandoned, surrendered, or failed to complete or to perform work on or in connection with a City contract. d. Vendor failed to comply with contract provisions, including but not limited to quality of workmanship, timeliness of performance, and safety standards. e. Vendor submitted false or intentionally misleading documents, reports, invoices, or other statements to the City in connection with a contract. f. Vendor colluded with another Vendor to restrain competition. g. Vendor committed fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a contract for the City or any other government entity. h. Vendor failed to cooperate in a City debarment investigation. i. Vendor failed to comply with SMC 14.04, SMC Ch. 14.10, SMC Ch. 20.42, or SMC Ch. 20.45, or other local, State, or federal non-discrimination laws. The Director may issue an Order of Debarment following the procedures specified in SMC 20.70.050. The rights and remedies of the City under these provisions are in addition to any other rights and remedies provided by law or under the Contract. 73. Recycle Products Requirements. To promote and encourage environmentally sustainable practices for companies doing business with the City, the City requires that vendors under City contract use environmentally preferable products in production of City work products. Page 27 of 31 Contract Terms and Conditions Paper and Paper Product Requirements: The City desires use of 100% PCF (post consumer recycled content, chlorine-free) paper, to comply with the City Executive Order and to encourage environmentally preferable practices for City business. Such paper is available at City contract prices from Keeney’s Office Supplies at 425-285-0541. The City prohibits vinyl binders. The City prefers 100% recycled stock Binders. “Rebinders” are a product that fit this requirement and are available at City contract prices from Complete Office at 206628-0059 or Keeney’s Office Supplies at 425-285-0541. Please do not use binders or plastic folders, unless essential. Note - Keeney’s is a Women Owned Firm and may be noted on your Outreach Plan. Vendors shall duplex materials prepared for Seattle under this Contract, whether materials are printed or copied, except when impracticable due to the nature of the product. This is executed under the Mayor's Executive Order, issued February 13, 2005. 74. Workers Right to Know. “Right to Know” legislation required the Department of Labor and Industries to establish a program to make employers and employees more aware of the hazardous substances in their work environment. WAC 296-62-054 requires among other things that all manufacturers/distributors of hazardous substances, including any of the items listed on this ITB, RFP or contract bid and subsequent award, must include with each delivery completed Material Safety Data Sheets (MSDS) for each hazardous material. Additionally, each container of hazardous material must be appropriately labeled with: the identity of the hazardous material, appropriate hazardous warnings, and the Name and Address of the chemical manufacturer, improper, or other responsible party. Labor and Industries may levy appropriate fines against employers for noncompliance and agencies may withhold payment pending receipt of a legible copy of the MSDS. OSHA Form 20 is not acceptable in lieu of this requirement unless it is modified to include appropriate information relative to “carcinogenic ingredients: and “routes of entry” of the product(s) in question. 75. Paid Sick Time and Safe Time Ordinance Be aware that the City has a Paid Sick Time and Safe Time ordinance that requires companies to provide employees who work more than 240 hours within a year inside Seattle, with accrued paid sick and paid safe time for use when an employee or a family member needs time off from work due to illness or a critical safety issue. The ordinance applies to employers, regardless of where they are located, with more than four full-time equivalent employees. This is in addition and additive to benefits a worker receives under prevailing wages per WAC 296-127-014(4). City contract specialists may audit payroll records or interview workers as needed to ensure compliance to the ordinance. Please see http://www.seattle.gov/laborstandards, or may call the Office of Labor Standards at 206.684.4500 with questions. 76. Other Labor Standards Requirements: The Vendor shall comply to the extent applicable with the City's Minimum Wage labor standards as required by SMC 14.19, setting wage standards for employees working within city limits as well as the Wage Theft labor standards as required by SMC 14.20, setting basic requirements for payment of wages and tips for employees working within city limits and providing various payment documentation to employees. 77. Campaign Contributions (Initiative Measure No. 122) Elected officials and candidates are prohibited from accepting or soliciting campaign contributions from anyone having at least $250,000 in contracts with the City in the last two years or who has paid at least $5,000 in the last 12 months to lobby the City. Please see Initiative 122, or call the Ethics Director with questions. For questions about this measure, contact: Polly Grow, Seattle Ethics and Elections, 206-615-1248 or polly.grow@seattle.gov. 78. Mandatory Requirements Any violation of the mandatory requirements of Sections 27, 31, 32, 33, 37 or a violation of Seattle Page 28 of 31 Contract Terms and Conditions Municipal Code Chapter 14.04 (Fair Employment Practices), Chapter 14.10 (Fair Contracting Practices), Chapter 20.45 (City Contracts – Non-Discrimination in Benefits), or other local, state, or federal non-discrimination laws, shall be a material breach of Contract for which the Vendor may be subject to damages and sanctions provided for by the Vendor Contract and by applicable law. In the event the Vendor is in violation of this Section shall be subject to debarment from City contracting activities in accordance with Seattle Municipal Code Section 20.70 (Debarment). 79. Miscellaneous Provisions. A. Amendments: No modification of this Contract shall be effective unless in writing and signed by an authorized representative of the City, except as otherwise authorized herein. The City shall issue Change Order notices to Vendor, and such notices shall take effect under the signature of the City and the Vendor unless written objection of the notice is received by the Vendor upon Vendor receipt of the Change Order notice. B. Conflict: In the event of conflict between Contract documents and applicable laws, codes, ordinances or regulations, the most stringent or legally binding requirement shall govern and be considered a part of this Contract to afford Seattle the maximum benefits. C. Liens, Claims and Encumbrances: All materials, equipment, or services shall be free of all liens, claims or encumbrances of any kind and if Seattle requests a formal release of same shall be delivered to Seattle. D. Binding Contract: This Contract shall not be binding until signed by both parties. The provisions, covenants and conditions in this Contract shall bind the parties, their legal heirs, representatives, successors, and assigns. E. Applicable Law/Venue: This Contract shall be construed and interpreted in accordance with the laws of the State of Washington. The venue of any action brought hereunder shall be in the Superior Court for King County, Washington F. Remedies Cumulative: Rights under this Contract are cumulative and nonexclusive of any other remedy at law or in equity. G. Captions: All titles, including sections or subsections, are for convenience only and do not define or limit the contents. H. Severability: Any term or provision of this Contract found to be prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remainder of the Contract. I. Waiver: No covenant, term, or the breach thereof shall be deemed waived, except by written consent of the party against whom the waiver is claimed, and any waiver of the breach of any covenant, term or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term or condition. Neither the acceptance by Seattle of any performance by the Vendor after the time the same shall have become due nor payment to the Vendor for any portion of the Work shall constitute a waiver by Seattle of the breach or default of any covenant, term or condition unless otherwise this is expressly agreed to by Seattle, in writing. The City’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or the City’s waiver of any breach hereunder shall not thereafter waive any other term, condition, or privilege, whether of the same or similar type. J. Contract Representations: This Contract as described in Item 1 constitutes the entire Agreement. No verbal agreement or conversation between any officer, agent, associate or employee of Seattle and any officer, agency, employee or associate of the Vendor prior to the execution of this Contract shall affect or modify any of the terms or obligations contained in this Contract. Page 29 of 31 Contract Terms and Conditions K. Negotiated Contract: The parties acknowledge that this is a negotiated Contract, that they have had the opportunity to have this Contract reviewed by respective legal counsel. and that terms and conditions are not construed against any party on the basis of such party?s draftsmanship thereof. L. No personal liability: No of?cer. agent or authorized employee of the City shall be personally responsible for any liability arising under this Contract, whether expressed or implied. nor for any statement or representation made herein or in any connection with this Contract. iN WITNESS WHE OF. in consideration of the terms. conditions. and covenants contained herein. or attached and incorp ted and made a part hereof. the parties have executed this Contract by having their authorized represe es affix their signatures below. CAF USA. inc. City of Seattle Signature bate Signature Date IGNACIO M. BARRENECHEA NANCY LOCKE North America Director 1 City Purchasing and Contracting Director if. Pageaoof 31 Contract Terms and Conditions Exhibits/Attachments Exhibit C 0000003681_Specia Provisions_Exhibit C Attachment 1 Contract 3681 Key Subcontractor List - Exhibit D CCC TS BAFO rev 2.0.pdf Attachment 2 Contract 3681 Performance Bond - Exhibit E Contractt 3681 Alignment Drawing Attachment 3 Contract 3681 Letter of Credit - Att Exhibit F Contractt 3681 Alignment Drawing Attachment 4 Contract 3681 Warranty Bond - Att Exhibit G Contractt 3681 Alignment Drawing Attachment 5 Contract 3681 Schedule of Prices - Exhibit H Contractt 3681 Vendor's BAFO, Exh Exhibit I Contract 3681 Vendor Original Of Page 31 of 31 Contract Terms and Conditions