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HomeMy WebLinkAboutResolution - 2009-R0140 - Amendment To Agreement - Rip Griffin Truck Service Center Inc.- Fuel Services - 04/09/2009Resolution No_ 2009-80140 II April 9, 2009 Item No. 5.4 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF "rHE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute an Amendment No. 1 and any associated documents to a Letter Agreement with Rip Griffin Truck Service Center, Inc., of Lubbock, Texas, executed January 12, 2007, for the purchase of gasoline and diesel fuel automated services — annual pricing (ITB 06- 085 -MA), which Amendment No. I is attached hereto as Exhibit A and made a part hereof for all intents and purposes. Passed by the City Council this 9th day of ATTEST: Rebec_';c Garza, City Secretary AP ROVED, AS TO CONTENT: Victor Kilman Director of Purchasing and Contract Management APPROVED AS TO FORM: 066 Vandiver, ity Attorney DDres/GriffinLtrAgree07Amend I Res April 3. 2009 April , 2009. TOM MARTIN, MAYOR Resolution No. 2009-80140 Amendment No.1 to Contract No. 7323 Gasoline & Diesel Fuel Bulk Delivery — Annual Pricing WHEREAS, the Parties to the above Letter Agreement, Rip Griffin Truck Service Center, Inc., and the City of Lubbock, desire to amend the pricing formula for bulk fuel to be delivered to the City of Lubbock for the remaining term of this contract, and include under this Amendment fuel volumes for Citibus operations for the time frame remaining under this Agreement. Pursuant to the Citibus volume, additional language has been added to this Amendment No. 1, which is attached hereto as Exhibit A and incorporated herein by reference; and WHEREAS, the Parties desire to provide a fixed monthly price for said bulls fuel deliveries in the historical, ratable monthly volumes they have received under this Agreement; NOW THEREFORE: WITNESSETH: THAT the Parties hereto desire to amend Section 1 "Prices: As quoted on Bid Form." of the Letter Agreement of January 12, 2007, to read as follows: 1. Prices: As quoted on Amendment No. 1 to this Letter Agreement: AMENDMENT NO. 1 Effective April 1, 2009, through December 31, 2009, the pricing for bulk fuel delivered to the City of Lubbock under ITB #06 -085 -MA shall be as follows: April 2009 UL86 Octane Transport Load (including Citibus volume) 60,000 gal @_$1.7164 UL86 Octane Bobtail Load (including Citibus volume) 7,000 gal @_$1.7504 Dyed Diesel 42.0 Centane Transport Load (including Citibus volume) 100,000 gal @_$1.7164 Dyed Diesel 42.0 Centane Bobtail Load 15,000 gal @_$1.7504 May 2009 UL86 Octane Transport Load (including Citibus volume) 60,000 gal @_$1.7164_ UL86 Octane Bobtail Load (including Citibus volume) 7,000 gal @_$1.7504 Dyed Diesel 42.0 Centane Transport Load (including Citibus volume) 100,000 gal @_$1.7164 Dyed Diesel 42.0 Centane Bobtail Load June 2009 15,000 gal @._$1.7504 UL86 Octane Transport Load (including Citibus volume) 60,000 gal @_$1.7164 UL86 Octane Bobtail Load (including Citibus volume) 7,000 gal @_$1.7504 Dyed Diesel 42.0 Centane Transport Load (including Citibus volume) 100,000 gal @_$1.7164 Dyed Diesel 42.0 Centane Bobtail Load 15,000 gal @_$1.7504 July 2009 UL86 Octane Transport Load (including Citibus volume) 60,000 gal @_$1.7164 UL86 Octane Bobtail Load (including Citibus volume) 7,000 gal @_$1.7504 Dyed Diesel 42.0 Centane Transport Load (including Citibus volume) 100,000 gal @_$1.7164 Dyed Diesel 42.0 Centanc Bobtail Load 15,000 gal @_$1.7504 August 2009 UL86 Octane Transport Load (including Citibus volume) 60,000 gal @_$1.7164 UL86 Octane Bobtail Load (including Citibus volume) 7,000 gal @_$1.7504, Dyed Diesel 42.0 Centane Transport Load (including Citibus volume) 100,000 gal @_$1.7164. Dyed Diesel 42.0 Centane Bobtail Load 15,000 gal @_$1.7504. September 2009 UL86 Octane Transport Load (including Citibus volume) 60,000 gal @_$1.7164 UL86 Octane Bobtail Load (including Citibus volume) 7,000 gal @_$1.7504 Dyed Diesel 42.0 Centane Transport Load (including Citibus volume) 100,000 gal @_$1.7164. Dyed Diesel 42.0 Centane Bobtail Load 15,000 gal @$1.7504_ October 2009 UL86 Octane Transport Load (including Citibus volume) 60,000 ga] @ $1.7164 UL86 Octane Bobtail Load (including Citibus volume) 7,000 gal @_$1.7504 Dyed Diesel 42.0 Centanc Transport Load (including Citibus volume) 100,000 gal @_$1.7164 Dyed Diesel 42.0 Centane Bobtail Load 15,000 gal @_$1.7504 November 2009 UL86 Octane Transport Load (including Citibus volume) 1 60,000 gal @_$1.7164 UL86 Octane Bobtail Load (including Citibus volume) 7,000 gal @ $1.7504 Dyed Diesel 42.0 Centane Transport Load (including Citibus volume) 100,000 gal @_$1.7164, Dyed Diesel 42.0 Centane Bobtail Load 15,000 gal @_$1.7504, December 2009 UL86 Octane Transport Load (including Citibus volume) 60,000 gal @$1.7164 UL86 Octane Bobtail Load (including Citibus volume) 7,000 gal @$1.7504 Dyed Diesel 42.0 Centane Transport Load (including Citibus volume) 100,000 gal @_$1.7164 Dyed Diesel 42.0 Centane Bobtail Load 15,000 gal @_$1.7504 The monthly volumes listed above shall be subject to a 10% variance above those stated volumes. Any volume within that 10% shall be priced as agreed upon. Any volume beyond the 10% variance will revert to the original formula pricing; date of delivery plus margin as stated in the original ITB. All other terms and conditions contained in the original ITB #06 -085 -MA shall remain in full force and effect. All other terms and conditions contained in the original ITB #06 -085 -MA shall remain in full force and effect. Executed by the parties hereto this G `'day of April 2009. CITY OF LUBBOCK: RIP GRIFFIN TRUCK SERVICE CENTER, INC.: < %wraF , TOM TIN, MAYOR MARK FIN, P SIDENT ATTEST: Rebe ca Garza, City Secretary APPROVED AS TO CONTENT: Victor Kilman Director of Purchasing and Contract Management APPROVED AS TO FOItM: r r / Do andiver, City Attorney Resolution No. 2009-80140 EXHIBIT A Citibus Federally Required Procurement Clauses **** PLEASE READ CAREFULLY **** Clauses apply to all bids and become a part of the terms and conditions of any bid submitted. 1. ENERGY CONSERVATION - The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. 2. CLEAN WATER - The Contractor 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 M . The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 3. LOBBYING The Bidder or Offeror certifies, to the best of its knowledge and belief, that: No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. If any funds other than Federal appropriated funds have been paid or will be paid to any person for making lobbying contacts to an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form --LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions as amended by "Government wide Guidance for New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96). Note: Language in paragraph (2) herein has been modified in accordance with Section 10 of the Lobbying Disclosure Act of 1995 (P.L. 104-65, to be codified at 2 U.S.C. 1601, et seq.) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31, U.S.C. § 1352 (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The Contractor must sign the Lobbying certification in Appendix 2. 4. ACCESS TO RECORDS AND REPORTS Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C. F. R. 18.36(1), the Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)l, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 633.17, Contractor agrees to provide the Purchaser, the FTA Administrator or his authorized representatives, including any PMO Contractor, access to the Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.G. 5302(a)l, which is receiving federal financial assistance through the -programs described at 49 U.S.C. 5307, 5309 or 5311. By definition, a major capital project excludes contracts of less than the simplified acquisition threshold currently set at $100,000. Where the Purchaser enters into a negotiated contract for other than a small purchase or under the simplified acquisition threshold and is an institution of higher education, a hospital or other non-profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R.19.48, Contractor agrees to provide the Purchaser, FTA Administrator, the Comptroller General of the United States or any of their duly authorized representatives with access to any books, documents, papers and record of the Contractor which are directly pertinent to this contract for the purposes of snaking audits, examinations, excerpts and transcriptions. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49. U.S.C. 5325(a) enters into a contract for a capital project or improvement (defined at 49 U.S.C. 5302(a)1) through other than competitive bidding, the Contractor shall make available records related to the contract to the Purchaser, the Secretary of Transportation and the Comptroller General or any authorized officer or employee of any of them for the purposes of conducting an audit and inspection. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. The Contractor agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11). FTA does not require the inclusion of these requirements in subcontracts. 5. FEDERAL CHANGES - Contractor 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 Agreement between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract. 6. CLEAN AIR - The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 7. RECYCLED PRODUCTS - The contractor agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247. S. NO GOVERNMENT OBLIGATION TO THIRD PARTIES - The Purchaser and Contractor 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 Purchaser, Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. The Contractor 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 that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. 9. PROGRAM FRAUD AND FALSE OR FRADULENT STATEMENT AND RELATED ACTS - The Contractor acknowledges that 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 Contractor 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 Contractor 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 Contractor to the extent the Federal Government deems appropriate. The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent 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 Contractor, to the extent the Federal Government deems appropriate. The Contractor agrees to include the above two clauses 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. 10. TERMINATION Termination for Convenience (General Provision) The City of Lubbock/Citibus may terminate this contract, in whole or in part, at any time by written notice to the Contractor when it is in the Government's best interest. The Contractor shall be paid its costs, including contract close-out costs, and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to City of Lubbock/Citibus to be paid the Contractor. If the Contractor has any property in its possession belonging to the City of Lubbock/Citibus, the Contractor will account for the same, and dispose of it in the manner the City of Lubbock/Citibus directs. Termination for Default Breach or Cause (General Provision) If the Contractor does not deliver supplies in accordance with the contract delivery schedule, or, if the contract is for services, the Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, the City of Lubbock/Citibus may terminate this contract for default. Termination shall be effected by serving a notice of termination on the contractor setting forth the manner in which the Contractor is in default. The contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract. If it is later determined by the City of Lubbock/Citibus that the Contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the control of the Contractor, the City of Lubbock/Citibus, after setting up a new delivery of performance schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience. Opportunity to Cure (General Provision) City of Lubbock/Citibus in its sole discretion may, in the case of a termination for breach or default, allow the Contractor fifteen (15) days in which to cure the defect. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions. If Contractor fails to remedy to City of Lubbock/Citibus's satisfaction the breach or default of any of the terms, covenants, or conditions of this Contract within ten (10) days after receipt by Contractor of written notice from City of Lubbock/Citibus setting forth the nature of said breach or default, City of Lubbock/Citibus shall have the right to terminate the Contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude City of Lubbock/Citibus from also pursuing all available remedies against Contractor and its sureties for said breach or default. Waiver of Remedies for any Breach In the event that City of Lubbock/Citibus elects to waive its remedies for any breach by Contractor of any covenant, term or condition of this Contract, such waiver by City of Lubbock/Citibus shall not limit City of Lubbock/Citibus's remedies for any succeeding breach of that or of any other term, covenant, or condition of this Contract. 11. GOVERNMENT -WIDE DEBARMENT AND SUSPENSION - This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is required to verify that none of the contractor, its principals, as defined in 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 contractor is required to comply with 49 CFR Part 29, Subpart C and must include the requirement to comply with 49 CFR Part 29, Subpart C in any lower tier covered transaction it enters into. By signing and submitting its bid or proposal, the bidder or proposer certifies as follows: The certification in this clause is a material representation of fact relied upon by the City of Lubbock/Citibus. If it is later determined that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to the City of Lubbock/Citibus, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 49 CFR Part 29m Subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lover tier covered transactions. 12, PRIVACY ACT - (1) The Contractor agrees to comply with, and assures the compliance of its employees with, the information restrictions and other applicable requirements of the Privacy Act of 1974, 5 U.S.C. § 552a. Among other things, the Contractor agrees to obtain the express consent of the Federal Government before the Contractor or its employees operate a system of records on behalf of the Federal Government. The Contractor understands that the requirements of the Privacy Act, including the civil and criminal penalties for violation of that Act, apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may result in termination of the underlying contract. (2) The Contractor also agrees to include these requirements in each subcontract to administer any system of records on behalf of the Federal Government financed in whole or in part with Federal assistance provided by FTA. 13. CIVIL RIGHTS - The following requirements apply to the underlying contract: 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 Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: Race, Color, Creed, National Origin, Sex - In accordance with Title V11 of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor 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 C.F.R. Parts 60 et sept ., (whish implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 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 Contractor 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 Contractor agrees to comply with any implementing requirements FTA may issue. AA e, - In accordance with Section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. Disabilities - In accordance with Section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the Contractor 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 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. The Contractor 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. 14. BREACHES AND DISPUTE RESOLUTION Disputes - Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of Citibus' General Manager. This decision shall be final and conclusive unless within ten (10) days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the Director of Purchasing & Contract Management. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the General Manager shall be binding upon the Contractor and the Contractor shall abide be the decision. Performance During Dispute - Unless otherwise directed by the City of Lubbock/Citibus, Contractor shall continue performance under this Contract while matters in dispute are being resolved. Claims for Damages - Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of his employees, agents or others for whose acts he is legally liable, a claim for damages therefore shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage. Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other matters in question between the City of Lubbock/Citibus and the Contractor arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of competent jurisdiction within the State in which the City of Lubbock is located. Rights and Remedies - The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by the City of Lubbock/Citibus or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. 15. TRANSIT EMPLOYEE PROTECTIVE PROVISIONS - (1) The Contractor agrees to the comply with applicable transit employee protective requirements as follows: (a) General Transit Employee Protective Requirements - To the extent that FTA determines that transit operations are involved, the Contractor agrees to carry out the transit operations work on the underlying contract in compliance with terms and conditions determined by the U.S. Secretary of Labor to be fair and equitable to protect the interests of employees employed under this contract and to meet the employee protective requirements of 49 U.S.C. A 5333(b), and U.S. DOL guidelines at 29 C.F.R. Part 215, and any amendments thereto. These terms and conditions are identified in the letter of certification from the U.S. DOL to FTA applicable to the FTA Recipient's project from which Federal assistance is provided to support work on the underlying contract. The Contractor agrees to carry out that work in compliance with the conditions stated in that U.S. DOL letter. The requirements of this subsection (1), however, do not apply to any contract financed with Federal assistance provided by FTA either for projects for elderly individuals and individuals with disabilities authorized by 49 U.S.C. § 5310(a)(2), or for projects for nonurbanized areas authorized by 49 U.S.C. § 5311. Alternate provisions for those projects are set forth in subsections (b) and (c) of this clause. (b) Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C. § 5310(a)(2) for Elderly Individuals and Individuals with Disabilities - If the contract involves transit operations financed in whole or in part with Federal assistance authorized by 49 U.S.C. § 5310(a)(2), and if the U.S. Secretary of Transportation has determined or determines in the future that the employee protective requirements of 49 U.S.C. § 5333(b) are necessary or appropriate for the state and the public body subrecipient for which work is performed on the underlying contract, the Contractor agrees to carry out the Project in compliance with the terms and conditions determined by the U.S. Secretary of Labor to meet'the requirements of 49 U.S.C. § 5333(b), U.S. DOL guidelines at 29 C.F.R. Part 215, and any amendments thereto. These terms and conditions are identified in the U.S. DOL's letter of certification to FTA, the date of which is set forth Grant Agreement or Cooperative Agreement with the state. The Contractor agrees to perform transit operations in connection with the underlying contract in compliance with the conditions stated in that U.S. DOL letter. (c) Transit Em to ee Protective Requirements for Projects Authorized by 49 U.S.C. § 5311 in Nonurbanized Areas - If the contract involves transit operations financed in whole or in part with Federal assistance authorized by 49 U.S.C. § 5311, the Contractor agrees to comply with the terms and conditions of the Special Warranty for the Nonurbanized Area Program agreed to by the U.S. Secretaries of Transportation and Labor, dated May 31, 1979, and the procedures implemented by U.S. DOL or any revision thereto. (2) The Contractor also agrees to include the any applicable requirements in each subcontract involving transit operations financed in whole or in part with Federal assistance provided by FTA. 16. DISADVANTAGED BUSINESS ENTERPRISES (DBE) - This 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 national goal for participation of Disadvantaged Business Enterprises (DBE) is 10%. The agency's overall goal for DBE participation is one percent (1%). A separate contract goal has not been established for this procurement. The contractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of this DOT -assisted contract. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the City of Lubbock/Citibus deems appropriate. Each subcontract the contractor signs with a subcontractor must include the assurance in this paragraph (see 49 CFR 26.13(b)). The successful bidder/offeror will be required to report its DBE participation obtained through race -neutral means throughout the period of performance. The contractor 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 contractor's receipt of payment for that work from the City of Lubbock/Citibus. In addition, is required to return any retainage payments to those subcontractors within 30 days after the subcontractor's work related to this contract is satisfactorily completed. The contractor must promptly notify the City of Lubbock/Citibus, whenever a DBE subcontractor performing work related to this contract is terminated or fails to complete its work, and must make good faith efforts to engage another DBE subcontractor to perform at least the same amount of work. The contractor may not terminate any DBE subcontractor and perform that work through its own forces or those of an affiliate without prior written consent of the City of Lubbock/Citibus. 17. 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 4220.1E are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any City of Lubbock/Citibus requests which would cause City of Lubbock/Citibus to be in violation of the FTA terms and conditions. 18. DRUG AND ALCOHOL TESTING - Under Option 1, the recipient ensures the contractor's compliance with the rules by requiring the contractor to participate in a drug and alcohol program administered by the recipient. The advantages of doing this are obvious: the recipient maintains total control over its compliance with 49 CFR 653 and 654. The disadvantage is that the recipient, which may not directly employ any safety -sensitive employees, has to implement a complex testing program. Therefore, this may be a practical option only for those recipients which have a testing program for their employees, and can add the contractor's safety -sensitive employees to that program Under Option 2, the recipient relies on the contractor to implement a drug and alcohol testing program that complies with 49 CFR 653 and 654, but retains the ability to monitor the contractor's testing program; thus, the recipient has less control over its compliance with the drug and alcohol testing rules than it does under option 1. The advantage of this approach is that it places the responsibility for complying with the rules on the entity that is actually performing the safety -sensitive function. Moreover, it reserves to the recipient the power to ensure that the contractor complies with the program. The disadvantage of Option 2 is that without adequate monitoring of the contractor's program, the recipient may find itself out of compliance with the rules. Under option 3, the recipient specifies some or all of the specific features of a contractor's drug and alcohol compliance program. Thus, it requires the recipient to decide what it wants to do and how it wants to do it. The advantage of this option is that the recipient has more control over the contractor's drug and alcohol testing program, yet it is not actually administering the testing program. The disadvantage is that the recipient has to specify and understand clearly what it wants to do and why. Drug and Alcohol Testing Option 1 - The contractor agrees to: (a) participate in (grantee's or recipient's) drug and alcohol program established in compliance with 49 CFR 653 and 654. Drug and Alcohol Testing Option 2 - The contractor agrees to establish and implement a drug and alcohol testing program that complies with 49 CFR Parts 653 and 654, produce any documentation necessary to establish its compliance with Parts 653 and 654, and permit any authorized representative of the United States Department of Transportation or its operating administrations, the State Oversight Agency of Texas, or the City of Lubbock/Citibus, to inspect the facilities and records associated with the implementation of the drug and alcohol testing program as required under 49 CFR Parts 653 and 654 and review the testing process. The contractor agrees further to certify annually its compliance with Parts 653 and 654 before March 1 and to submit the Management Information System (MIS) reports before March I to Marta Alvarez, Purchasing Manager, 1625 13''' Street, Lubbock, Texas 79401. To certify compliance the contractor shall use the "Substance Abuse Certifications" in the "Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements," which is published annually in the Federal Register. Drug and Alcohol Testing Option - The contractor agrees to establish and implement a drug and alcohol testing program that complies with 49 CFR Parts 653 and 654, produce any documentation necessary to establish its compliance with Parts 653 and 654, and permit any authorized representative of the United States Department of Transportation or its operating administrations, the State Oversight Agency of Texas, or the City of Lubbock, to inspect the facilities and records associated with the implementation of the drug and alcohol testing program as required under 49 CFR Parts 653 and 654 and review the testing process. The contractor agrees further to certify annually its compliance with Parts 653 and 654 before March 1 and to submit the Management Information System (MIS) reports before March 1 to Marta Alvarez, Purchasing Manager, 1625 13`s Street, Lubbock, Texas 79401. To certify compliance the contractor shall use the "Substance Abuse Certifications" in the "Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements," which is published annually in the Federal Register. The Contractor agrees further to submit upon request a copy of the Policy Statement developed to implement its drug and alcohol testing program. Fr-/,,-) TAw- The Contractor, cc C'� , certifies or arms the truthfulness and accuracy of each statem If ' certificatio nd disclosure, i y. Signature of Contractor's Authorized Official R r 1 Name and Title of Contractor's Authorized Oficial ~ Date