CLEANING SERVICES AGREEMENT Between AGENCY: VALLEY … · 2020-01-15 · CLEANING SERVICES Federal...

CLEANING SERVICES

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Revision 0 of 44 No. LRT-08-111-FMCL

CLEANING SERVICES AGREEMENT

Between AGENCY: VALLEY METRO RAIL, INC.

and

CONTRACTOR:

Valley Metro Rail Inc. is a partnership between the cities of Phoenix, Tempe, Mesa and Glendale, Peoria, and Scottsdale (hereafter referred to as Cities), to construct a new light rail transit line along a 20-mile, heavily traveled commuter corridor connecting the Cities. The Project is funded through taxes in each of the Cities, as well as FTA Section 5309 New Starts funding. The Agency is responsible for the design, installation, operation, maintenance and management of the light rail project. Project construction was begun in mid-2003 and the system is anticipated to be operational in 2008.

This contract is for provision of services for the Light Rail Transit Project.

Dated as of ______________

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TABLE OF CONTENTS

SECTION 1 - DEFINITIONS ........................................................................................... 4

1.1 DEFINITIONS ............................................................................................................ 4

SECTION 2 - PROFESSIONAL SERVICES................................................................... 6

2.1. SCOPE OF SERVICES. ............................................................................................. 6 2.2 ANNUAL FUNDING ................................................................................................... 6 2.3. DILIGENCE AND STANDARD OF CARE........................................................................ 6 2.4. KEY PERSONNEL .................................................................................................... 6 2.5 AVAILABILITY AND LOCATION..................................................................................... 6 2.6 SUBLETTING, ASSIGNMENT OR TRANSFER. ................................................................ 6

SECTION 3 - CONTRACT TIME..................................................................................... 7

3.1 CONTRACT TIME. .................................................................................................. 7 3.2 SCHEDULE............................................................................................................. 7

SECTION 4 - COMPENSATION AND PAYMENT.......................................................... 7

4.1 COMPENSATION...................................................................................................... 7 4.2 COMPENSATION LIMITS. .......................................................................................... 7 4.3 COSTS. .................................................................................................................. 7 4.4 BILLINGS. ............................................................................................................... 8 4.5 FIXED FEE.............................................................................................................. 8 4.6 INVOICING. ............................................................................................................ 8 4.7. FINAL PAYMENT...................................................................................................... 9 4.8 RETENTION. NO RETENTION SHALL BE HELD AGAINST PROGRESS BILLINGS................ 9 4.9 PROMPT PAYMENT.................................................................................................. 9 4.10 LIEN WAIVERS..................................................................................................... 10

SECTION 5 - INSURANCE AND INDEMNIFICATION ................................................. 11

5.1. INSURANCE .......................................................................................................... 11 5.2. CONTRACTOR PROVIDED INSURANCE..................................................................... 12

SECTION 6 - GENERAL PROVISIONS ....................................................................... 16

6.1. CHANGES. ........................................................................................................... 16 6.2. DISPUTES RESOLUTION......................................................................................... 16 6.3. SUSPENSION OF PROFESSIONAL SERVICES. ........................................................... 16 6.4. DEFAULT.............................................................................................................. 17 6.5. TERMINATION, SUSPENSION OR ABANDONMENT. ..................................................... 20 6.6 ORGANIZATION/EMPLOYMENT DISCLAIMER. ............................................................ 22 6.7. USE OF CONTRACTOR’S PLANS, DRAWINGS, GRAPHICS AND OTHER DOCUMENTS. .... 23 6.8. WAIVER. ............................................................................................................. 23 6.9. INSPECTION OF WORK. ......................................................................................... 23 6.10 INDEPENDENT CONTRACTOR. ............................................................................... 24 6.11. IMPROPER EXERCISE OF AUTHORITY.................................................................... 24 6.12. COVENANTS AGAINST CONTINGENT FEES............................................................. 24

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6.13. SUCCESSORS AND ASSIGNS. ............................................................................... 24 6.14. EMPLOYEE REMOVAL.......................................................................................... 24 6.15. ANTITRUST VIOLATIONS. ..................................................................................... 25 6.16 INCLUSION OF PROVISIONS IN SUBCONTRACTS. ..................................................... 25

SECTION 7 - CONTRACTOR RESPONSIBILITIES..................................................... 25

7.1. REGISTRATION, LICENSES AND PERMITS. ............................................................... 25 7.2. RESPONSIBILITY FOR SERVICES PERFORMED.......................................................... 25 7.3. PROJECT MANAGEMENT. ....................................................................................... 25 7.4. PUBLICATION PROVISIONS..................................................................................... 26 7.5. CONFLICTS OF INTEREST....................................................................................... 27

SECTION 8 - GENERAL PROVISIONS ....................................................................... 27

8.1. GOVERNING LAW.................................................................................................. 27 8.2. INTEGRATION CLAUSE........................................................................................... 27 8.3. ORDER OF PRECEDENCE...................................................................................... 27 8.4. THIRD-PARTY BENEFICIARIES. ............................................................................... 27 8.5. CONFIDENTIALITY................................................................................................. 27 8.6. NOTICES. ............................................................................................................ 28 8.7. HEADINGS. .......................................................................................................... 28 8.8. NON-WAIVER. ...................................................................................................... 28 8.9. INTERPRETATIONS. .............................................................................................. 28 8.10 AMENDMENT. ...................................................................................................... 28 8.11. FORCE MAJEURE................................................................................................ 29 8.12. ATTACHMENTS. .................................................................................................. 29

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CLEANING SERVICES AGREEMENT THIS CLEANING SERVICES AGREEMENT (“Agreement”) is made and entered into on ________________ by and between Valley Metro Rail, Inc., an Arizona non-profit corporation formed by the Cities of Phoenix, Tempe, Mesa, Glendale, Peoria, and Scottsdale to engage in planning, designing, constructing and operating a light rail transit system, hereinafter called “Agency,” and ________________ hereinafter called the “Contractor.”

RECITALS A. WHEREAS, the Agency requires certain cleaning services pursuant to the terms of this Agreement, hereinafter called “Professional Services;” and B. WHEREAS, the trained personnel needed for such Professional Services are not available within the Agency organization; and C. WHEREAS, the Contractor is a professional services firm, with principals, employees and Sub-Contractors, that are considered to be qualified and otherwise capable of performing the Professional Services required, as more specifically defined in herein.

NOW, THEREFORE, in consideration of these premises and of the mutual clauses and agreements herein contained, and the performance thereof, the Contractor and the Agency contract and agree:

AGREEMENT

SECTION 1 - DEFINITIONS

1.1 Definitions Unless otherwise provided herein, capitalized terms used in this Agreement, and not otherwise defined herein, have the respective meanings set forth in this Section 1.

1.1.1 Agency means Valley Metro Rail, Inc. or its successors and

assigns. 1.1.2 Agency Event of Default has the meaning set forth in Section

6.4.1.1. 1.1.3 Agreement means this Services Agreement. 1.1.4 Arbitration Provision has the meaning set forth in Section 6.2.4. 1.1.5 Business Days means all days of the year except Saturday,

Sunday and legal holidays of the United States of America or the State of Arizona.

1.1.6 Change Order has the meaning set forth in Section 6.1.1.1. 1.1.7 Chief Executive Officer means the Chief Executive Officer of the

Valley Metro Rail, Inc. or his/her designee. 1.1.8 Contractor means _____________

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1.1.9 Contractor Event of Default has the meaning set forth in Section 6.4.1.2.

1.1.10 Contract Amount has the meaning set forth in Section 4.1. 1.1.11 Contract Time has the meaning set forth in Section 3.1. 1.1.12 Contract Schedule has the meaning set forth in Section 3.2. 1.1.13 Costs has the meaning set forth in Section 4.3.1. 1.1.14 Direct Labor Costs has the meaning set forth in Section 4.3.2. 1.1.15 CP/EV LRT means the Central Phoenix/East Valley Light Rail

Transit Project. 1.1.16 Equitable Litigation has the meaning set forth in Section 6.4.3.2. 1.1.17 Event of Default means an Agency Event of Default or a

Contractor Event of Default. 1.1.18 Final Payment Billing has the meaning set forth in Section 4.7. 1.1.19 Fixed Fee has the meaning set forth in Section 4.4. 1.1.20 FTA means the Federal Transit Administration, a branch of United

States Department of Transportation, with oversight authority for the Project.

1.1.21 Indemnified Group means the Agency, its Members, Sate of Arizona/Arizona Dept. of Transportation and their respective Contractors, representative, officers, employers and directors.

1.1.22 ISO means the Insurance Service Office. 1.1.23 Key Personnel has the meaning set forth in Section 2.4.1. 1.1.24 LRT means light rail transit. 1.1.25 Other Direct Costs (ODCs) has the meaning set forth in Section

4.3.5. 1.1.26 Overhead Costs has the meaning set forth in Section 4.3.3. 1.1.27 Overhead Rate has the meaning set forth in Section 4.3.3.1. 1.1.28 Party or Parties means Agency and the Contractor. 1.1.29 Professional Services has the meaning set forth in Recital A. 1.1.30 Project means the consulting services described more fully on

the cover page of this Agreement. 1.1.31 Scope of Services has the meaning set forth in Section 2.1. 1.1.32 State Law means any law, regulation, ordinance, directive, order

or other regulatory action of the State of Arizona or any political subdivision thereof with jurisdiction over the Project.

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1.1.33 Sub-Contractor means a sub-Contractor or sub-contractor of the Contractor and any of their sub-Contractors or sub-contractors at any tier.

SECTION 2 - PROFESSIONAL SERVICES

2.1. Scope of Services. The Contractor shall perform the Professional Services more fully set forth and described in this Agreement and in the “Scope of Services” in Exhibit A attached hereto and included herein by reference.

2.2 Annual Funding Services to be performed hereunder shall be negotiated and funded annually to coincide

with the Agency’s fiscal year. Should no funding be allocated for the performance of services, the Agency may terminate this Agreement in accordance with Section 6.5.2.

2.3. Diligence and Standard of Care The Contractor shall perform the Professional Services to the reasonable satisfaction of the Agency within the terms of this Agreement and within the care and skill a peer professional in the State of Arizona would exercise under similar conditions.

2.4. Key Personnel

2.4.1 Contractor to Provide. Contractor shall provide the personnel as set forth in Exhibit B (collectively, the "Key Personnel") for services in connection with the Project. Those Personnel, whose names and personal data appear on Exhibit B, attached hereto and included herein by reference, are hereby defined and approved as “Key Personnel.”

2.4.1 No Substitution Without Prior Written Consent. No substitution of any Key Personnel may be made by the Contractor without the prior written consent of the Agency. In the event any of the Key Personnel are terminated or otherwise become unavailable, the Contractor shall notify the Agency of such termination or unavailability and temporarily replace such terminated or unavailable Key Personnel within ten (10) Business Days after such termination or unavailability. The Contractor shall use its best efforts to provide a replacement of such terminated or unavailable Key Personnel within thirty (30) days after such termination or unavailability. The Agency shall have the right to approve or disapprove the proposed replacement Key Personnel in advance and in writing, such approval to be exercised at the sole and absolute discretion of the Agency.

2.5 Availability and Location. All Key Personnel shall be available to provide services for the Project for which such Key Personnel are responsible at the level of effort and during the contract period to assist the Contractor in the performance of its duties hereunder.

2.6 Subletting, Assignment or Transfer. The Contractor was chosen to perform the Professional Services on the Project based upon training and qualifications of the Key Personnel. Therefore assignment or transfer of any Professional Services to any third party is expressly prohibited unless approved in writing by the Agency prior to such assignment or transfer of such Professional

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Services. The Contractor shall not assign all or any part of its interest in or obligations under, this Agreement without the Agency’s prior written approval, which approval will not be unreasonably withheld. The Parties acknowledge that the Agency may disapprove a proposed assignment if, as a result of the proposed assignment, the Key Personnel are not acceptable to Agency pursuant to Section 2.4.2. Any assignment in violation of this Section 2.6 shall constitute an Event of Default and is grounds for termination of this Agreement, at the reasonable discretion of the Agency, pursuant to Section 6.5.3, except that such termination shall be effective upon ten (10) days’ prior written notice. In no event shall any putative assignment create a contractual relationship between the Agency and any putative assignee.

SECTION 3 - CONTRACT TIME

3.1 Contract Time. This Agreement shall be effective during the period (“Contract Time”) on and after the date it is executed by the last Party to sign the Agreement until completion of twelve months, or one year.

3.2 Schedule. The Contractor shall perform services in accordance with the period of performance established in this Agreement, and as further defined in Exhibit A, Scope and Schedule of Services. Therefore, the Contractor agrees to provide a sufficient number of qualified personnel, sub-Contractors and other resources needed to perform the Professional Services in a prompt and diligent manner.

SECTION 4 - COMPENSATION AND PAYMENT

4.1 Compensation. The “Contract Amount” for Professional Services under this Agreement is ________.

The Agency shall compensate the Contractor for _____ Services satisfactorily performed hereunder on a firm fixed price basis as further described below.

4.2 Compensation Limits. Contract Limitation Amount. The Agency is not liable for any compensation to the Contractor in excess of the Contract Amount unless otherwise approved and agreed in writing by the Agency.

4.3 Costs. 4.3.4 Sub-Contractors. The Agency shall compensate Contractor a sum equal to the allowable and reasonable expenses actually paid by Contractor to Sub-Contractors.

4.3.5.Other Direct Costs. The Agency shall compensate Contractor a sum equal to the allowable and reasonable expenses actually paid by Contractor for other direct costs “Other Direct Costs” without mark-up and as are pre-approved in writing by the Agency. No Overhead Costs or Fixed Fee of any nature shall be applied to Other Direct Costs.

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4.4 Billings. General. Contractor shall submit monthly invoices (“Billings”) accompanied by any documentation reasonably determined to be necessary by the Chief Executive Officer or his designee.

Such Billings shall be for Professional Services performed in connection with the Scope of Services prior to the date of the Billing and not covered by previously submitted Billings.

Prior to submittal of its first Billing, the Contractor shall submit a sample invoice format for approval by the Agency. Sub-Contractor progress billings to the Contractor shall be subject to the same terms, conditions and format applicable to the Contractor’s Billings.

4.5 Fixed Fee 4.5.1. Calculation of Fixed Fee. Calculation and payment of Fixed Fee will be made monthly, based upon the amount of actual hours of Professional Services completed relative to the total hours of Professional Services authorized to complete the work.

If Contractor performs Services in excess of the Not-to-Exceed Contract Amount, the Contractor’s compensation shall be limited by Section 4.2. If the Contractor has performed and completed Professional Services for less than the Not-to-Exceed Contract Amount, the Contractor will, in addition to being paid for the actual amount of Professional Services performed, be paid the difference between the pro-rata share of Fixed Fee earned and billed, and the total Fixed Fee calculated and authorized by Section 4.4 pursuant to the final Billing for the Contract

4.6 Invoicing. 4.6.1 Review and Approval. The Chief Executive Officer or his representative shall review each Billing to determine whether the Billing satisfies the requirements of this Agreement.

If the Billing satisfies the requirements of this Agreement, the Chief Executive Officer or his designee shall approve the Billing for payment.

If the Billing does not satisfy the requirements of this Agreement, the Chief Executive Officer or his designee shall promptly notify the Contractor and return the Billing for clarification or correction.

If the Billing shows that the Contractor is failing to satisfy the Contract Schedule, the Chief Executive Officer or his representative shall notify the Contractor and request a plan for remedial action.

4.6.2. Time for Review and Approval. The Chief Executive Officer or his designee shall review, approve and make payment to the Contractor within thirty days (30) days after the receipt of correct Billing.

4.6.3. Disputed Amounts. If Agency disputes any item or item invoiced in a s Billing, Agency shall pay all items not in dispute. Agency and Contractor shall seek promptly to resolve such dispute and upon its resolution the Agency shall pay amount agreed to be paid to Contractor with the next succeeding payment.

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4.7. Final Payment. Contractor shall submit a request for final payment (the “Final Payment Billing”) accompanied by any documentation reasonably required by the Chief Executive Officer or his designee. The Chief Executive Officer or his representative shall review the Final Payment Billing to determine whether the Final Payment Billing satisfies the requirements of this Agreement. If the Final Payment Billing does not satisfy the requirements of this Agreement, the Chief Executive Officer or his designee shall promptly notify the Contractor. Payment of the Final Payment Billing shall not be due and payable until _________________.

4.7.1. Tasks. Tasks shown in the Scope of Services and any other additional Tasks included in this Agreement by Change Order have been completed, approved and accepted by the Agency;

4.7.2. Other Obligations. The Contractor shall have fully completed all obligations under the terms of this Agreement.

4.8 Retention. No retention shall be held against Progress Billings.

4.9 Prompt Payment.

4.9.1. Payment. Contractor shall pay to its Sub-Contractors and each Sub-Contractor shall pay to its sub-Contractors, within seven (7) days of receipt of each progress payment, the amounts attributable to the Sub-Contractor, or sub-contractor for services performed materials supplied. No contract between Contractor and its Sub-Contractors, contractors and material suppliers may materially alter the rights of any Sub-Contractors, contractors or material supplier to receive prompt and timely payment as provided herein. Any diversion by Contractor, or any Sub-Contractor, of payments received for services performed pursuant to this Agreement, or failure to reasonably account for the application or use of such payments, constitutes sufficient grounds for the Agency to take any one or more of the following actions: (i) withholding of future payments until proper disbursement has been made; (ii) refusal of all future bids or offers from the Contractor for a period not to exceed one (1) year; or (iii) termination of this Agreement.

4.9.2 Inspections and Audit. At its option, the Agency shall perform inspection and audit of Contractor’s compliance with the prompt payment requirements contained in this Section.

4.9.3. Cost Notification Requirement. Within 30 days of the expenditure of 75% of the Contract Amount, the Contractor shall notify the Agency when the Contractor believes that the cumulative expenditure of reimbursable costs will reach 100% of the Contract Amount. The notice shall include the following:

A. Date on which the Contractor expects to reach this 100% level; and

B. Contractor’s best judgment of whether the Professional Services can be completed within the Contract Amount and Contract Time. If, however, the Professional Services cannot be completed within the Contract Amount and Contract Time, the Contractor shall provide its best estimate of:

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1) The additional cost and/or time required to complete all Professional Services. Costs include direct labor, Other Direct Costs, indirect costs, and reimbursable Sub-Contractor costs;

2) Proposed changes to the Professional Services which would allow the Professional Services to be completed within the Contract Amount and Contract Time; and

3) A statement setting forth in detail the reasons why the Professional Services cannot be completed within the Contract Amount and Contract Time.

4.9.4. Deviation from Budget.

A. If the Contractor’s notice states that the Professional Services cannot be completed within the Contract Amount, the Agency may issue a request for change pursuant to Section 6. Until there is a Contract Amendment revision, the Contractor shall proceed with the Professional Services until the cumulative amount of reimbursable costs incurred by the Contractor equals the Contract Amount.

B. If it becomes necessary to modify the Professional Services to eliminate work that would allow the Professional Services to be completed within the Contract Amount and/or Contract Time, the Contractor’s Tasks may be renegotiated accordingly, pursuant to the Agreement. In no event is the Contractor authorized to exceed the Contract Amount, without prior written amendment/revision to the Agreement. Any such costs incurred without prior written Amendment to the Agreement shall not be compensable hereunder.

4.9.5. No Sub-Contractor Claim. Nothing contained in this Section shall provide a basis for any Sub-Contractor to assert any claim against the Agency for its administration, enforcement or waiver of the provisions of this prompt payment provision of this Agreement.

4.10 Lien Waivers. Notwithstanding anything in this Agreement to the contrary, no payment (progress, final or otherwise) shall become due and payable to Contractor under this Agreement unless and until: (1) the Contractor shall deliver to the Agency a conditional lien waiver, in accordance with A.R.S. § 33-1008, duly executed by Contractor, with respect to the payment Contractor is presently seeking, along with conditional lien waivers, in accordance with A.R.S. § 33-1008, duly executed by each and every one of its Sub-Contractors; and (2) for each payment after the first payment, the Contractor shall deliver to the Agency unconditional lien waivers, in accordance with A.R.S. § 33-1008, from the Contractor and each and every of its Sub-Contractors covering all previous payments made to the Contractor. Contractor shall provide the Agency with a list, before its first payment, and will update it thereafter if necessary, of any and all of its Sub-Contractors. In addition, notwithstanding anything in this Agreement to the contrary, final payment shall not become due and payable to the Contractor under this Agreement unless and until the Contractor shall deliver to the Agency, in addition to any and all of the lien waivers set forth above, an affidavit stating that any and all fees and monies due any and all of its Sub-Contractors or any other person or entity that provided labor, services or materials to Contractor or any of its Sub-Contractors in

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connection with the Project through the date of Contractor's last payment request have been paid in full and that any and all of its Sub-Contractors, and any other person or entity that provided labor, services or materials to Contractor or any of its Sub-Contractors in connection with the Project through the date of Contractor's final payment will be paid in full for all labor, services, or materials provided to the Project with the proceeds of the Contractor's final payment within ten (10) days of such final payment. At the time of final payment, the Contractor shall deliver to the Agency an unconditional lien waiver in accordance with A.R.S. § 33-1008. Within ten (10) days of final payment, Contractor shall deliver to the Agency unconditional lien waivers, in accordance with A.R.S. § 33-1008, from any and all of its Sub-Contractors. In addition, if any lien is placed against the Project by any person or entity, arising out of, related to, or connected with any services, labor, or materials to be provided pursuant to this Agreement, and remains unsatisfied before all payments under this Agreement are made, and provided that the Agency has provided Contractor ten (10) days prior written notice of the Agency's intent to pay unsatisfied amounts that are secured by such lien, Agency may deduct from any payment due and owing or from any payment that may later become due and owing to Contractor an amount equal to all monies that the Agency may pay in order to discharge such lien, including, but not limited to, the costs and reasonable attorneys' fees connected therewith. In addition, if any lien is placed against the Project by any person or entity, arising out of, related to, or connected with any services, labor, or materials to be provided pursuant to this Agreement, and remains unsatisfied after all payments under this Agreement are made, and provided that the Agency has provided Contractor ten (10) days prior written notice of Agency's intent to pay unsatisfied amounts that are secured by such a lien, Contractor shall pay to the Agency, upon demand, an amount equal to all monies that the Agency may pay in order to discharge such lien, including, but not limited to, costs and reasonable attorneys’ fees connected therewith.

SECTION 5 - INSURANCE AND INDEMNIFICATION

5.1. INSURANCE

5.1.A. Agency Provided Insurance 5.1.A.1. Bodily Injury and Property Damage Liability

Agency will procure and maintain for the duration of the Contract bodily injury and property damage insurance in the name of Agency, the Regional Public Transit Authority (RPTA), the Transportation Services Contractor, the Systems & Facilities Maintenance Services Contractor and Vehicle Maintenance Contractor, as well as others to be added at the Agency’s sole discretion, including, but not limited to, Agency Member Cities, the State of Arizona/Arizona Department of Transportation, Union Pacific Railroad (UPRR) and their respective Contractors, representatives, officers, directors and employees. Such insurance shall cover bodily injury and property damage arising out of the operations and maintenance of Agency Light Rail Transit Services. The policy shall be written on an occurrence form similar in scope to CV Starr Special Excess Liability Policy for Transit Agencies form 76273

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(6/00). The per occurrence limits of liability shall be at least One Hundred Million Dollars ($100,000,000).

Agency shall have the right to self-insure for any part of the insurance coverage up to Five Million Dollars ($5,000,000) per occurrence.

5.1.A.2. Property Insurance

Agency shall procure and maintain or self-insure for the duration of this Contract, property insurance covering the real and personal property owned, rented or leased by Agency (including, but not limited to, light rail equipment, rolling stock, and buildings) against all risk of physical damage usually covered in a property insurance policy. Such insurance will not include the perils of earthquakes and flood and will be subject to certain limits, sub-limits and deductibles. This insurance will include a waiver of subrogation as respects the Contractor.

5.2. Contractor Provided Insurance

5.2.A. General Provisions

The Contractor is primarily responsible to manage and mitigate risk in the performance of its work under this Contract, including but not limited to obtaining and maintaining, the required insurance and establishing and maintaining a reasonable risk control and safety program. Agency reserves the right to amend the requirements herein at any time during the Contract subject to at least sixty (60) days written notice. Agency may elect at any time, subject to the notice provision of this Section, to itself provide any or all of the coverage required in this Section, provided that Agency and Contractor agree upon an appropriate adjustment of the compensation terms of the Contract to offset any increase or decrease in the Contractor’s actual costs attributable to Agency’s changes. The Contractor shall require any and all Subcontractors to maintain insurance as appropriate. Contractor warrants that this Section has been thoroughly reviewed by the Contractor’s insurance agent/broker, who has been instructed to procure the required insurance coverage.

Prior to beginning the work under this Contract and without limiting any liabilities or other obligations of Contractor, Contractor shall obtain and maintain, and/or cause to be obtained and maintained, the required forms and minimum amounts of insurance coverage as outlined below. Contractor’s responsibility and liability for the Work provided by its subcontractor is not limited in any fashion by the types and limits of subcontractor’s insurance. Coverage shall be in full force and effective during the terms of this Contract. Upon execution of the Contract, and prior to commencement of the Work, the Contractor shall provide certificate(s) of insurance, from insurers and in form(s) acceptable to Agency, to evidence that policies providing the required coverage, conditions and limits as set forth in the Section are in full force and effect. Such certificates shall identify this Contract and contain provisions that coverage afforded under the policies shall not be canceled or terminated, until after thirty (30) days prior written notice has been given to Agency.

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If an insurance policy expires during the life of the Contract, the Contractor shall provide to Agency a renewal certificate of insurance of the required coverage prior to the expiration date.

The words “endeavor to” shall be deleted from the certificate form’s cancellation provision. Failure of Agency to demand such certificate(s) or other evidence of full compliance with these insurance requirements or failure of Agency to identify a deficiency from the evidence that is provided shall not be construed as a waiver of Contractor’s obligation to maintain such insurance. Certificate(s) of insurance and notice of cancellation should be mailed to the following address or such other addresses as designated by Agency from time to time:

Risk Manager Valley Metro Rail, Inc. 101 North 1st Avenue, Suite 1300 Phoenix, AZ 85003

Failure to maintain the required insurance may result in the termination of this Contract at Agency’s option. If Agency does not terminate the Contract, it shall have the right, but not the obligation, to purchase said insurance at Contractor’s expense in which case, Contractor shall promptly reimburse Agency upon demand. If Agency does not terminate the Contract, it shall have the right, but not the obligation, to purchase said insurance at Contractor’s expense on which case, Contractor shall promptly reimburse Agency upon demand.

Each insurance policy shall be written on a primary coverage basis, including any self-insured retentions, unless expressly approved by Agency in writing. Any failure by the Contractor to comply with the reporting requirements of the required insurance coverage shall not affect the coverage provided to Agency or Agency’s members. To the extent permitted by law, Contractor waives all rights of subrogation or similar rights against Valley Metro Rail, Inc. and its Members, the State of Arizona/Arizona Department of Transportation and their respective Contractors, representatives, officers, directors and employees. Approval of insurance by Agency as required above shall not relieve or decrease the liability of the contractor or its sub-contractors under the Liability and Hold Harmless clause included herein. Insurance policies must be from a carrier having an “AM Best” rating of “A-” or above.

5.2.B. Workers’ Compensation and Employers Liability Insurance

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Contractor shall maintain Workers’ Compensation and Employers Liability insurance. Worker’s Compensation coverage shall be in accordance with the Federal and State statutes having jurisdiction over the employees where the work is performed. The Commercial Umbrella and/or Employers Liability limits shall not be less than $1,000,000 each accident for bodily injury by accident or $1,000,000 each employee for bodily injury by disease.

5.2.C. Automobile Liability Insurance At all times during this Contract, the Contractor agrees to maintain Automobile Liability and, if necessary, Commercial Umbrella Liability insurance with a limit of not less than $5,000,000 each accident. Insurance shall cover liability arising out of the use of any auto (including owned, hired, and non-owned autos (with the exception of Agency owned autos). Coverage shall be written on ISO form CA 00 01, or a substitute form providing equivalent liability coverage.

With respect to Agency vehicles loaned or leased to Contractor for the completion of the Work, Agency will provide coverage under the Bodily Injury and Property Damage Liability policy. 5.2.D. Indemnification This liability and indemnification Section shall apply to all claims filed in connection with events occurring on or after the Notice to Proceed for the duration of the Agreement. 5.2.D.1. Allocation of Liability: Except with regard to “Excluded Conduct” as defined below, and except as otherwise provided for in this Section, Agency shall, at its sole expense, indemnify and hold harmless the Contractor, its employees, agents, and/or subcontractors, from all damage and all liability for injuries to or death of any person or persons, and from any and all liability for loss, damage or destruction to any property, which arises out of performance of the services required hereunder. The Contractor is solely responsible for claims, damages, losses and expenses, including, but not limited to, attorney’s fees and court costs, associated with Workers’ Compensation, Employer’s Liability, Employment Practices Liability and Automobile Liability claims or losses and waives all rights of subrogation against Agency for such claims and/or losses. The Contractor agrees at its sole expense to defend, indemnify and hold harmless Agency against any claims for injury or death to any person or persons, and from any and all liability for loss, damage or destruction to any property, which arises from the operation of a Contractor owned vehicle. 5.2.D.2. Excluded Conduct: Except as provided specifically below, the undertakings in this Section to defend, indemnify, and hold harmless the

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Contractor, its employees, agents, and/or subcontractors, shall apply without regard to the negligence or fault of the Contractor, its employees, agents, and/or subcontractors. Notwithstanding any other provision of this section, Agency shall have no duty to indemnify and hold harmless the Contractor, its employees, agents, and/or subcontractors, for any liability of the Contractor if it is reasonably determined by Agency that such liability arose as a result of Excluded Conduct of the Contractor and the Contractor shall indemnify and hold harmless Agency for any such liability. Excluded Conduct is conduct for which there is clear and convincing evidence that the liability arises out of an act or omission by the Contractor which constitutes, oppression, fraud, malice or recklessness. For the purposes of this subsection, the following definitions shall apply:

“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights; “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact with the intention of thereby depriving a person of property or legal rights or otherwise causing injury; “Malice” means conduct which is intended to cause injury to others or despicable conduct which is carried on with a willful conscious disregard of the rights or safety of others; “Recklessness” means conduct which is of unreasonable character that was 1) performed in disregard of a known risk or that was 2) performed in disregard to a risk so obvious that he/she must have been aware of the risk. Agency shall not be responsible for Excluded Conduct pursuant to this Subsection unless Agency’s officer, director, or other person with oversight responsibilities for Contractor’s employees, agents, and/or subcontractors, had advance knowledge of the unfitness of the Contractor’s employee, agent, and/or subcontractor and employed him or her, or continued to employ him or her, with a conscious disregard of the rights or safety of others or authorized or ratified through wrongful conduct for which the exemplary damages were or would have been awarded. The limitation of the scope of indemnities created by this Subsection shall in no way change any duty to defend against claims that are established in this Section. Except as provided above, if suit shall at any time be brought against either party asserting a liability against which the other party agrees to indemnify and save harmless the party sued, the indemnifying party shall, at its own cost and expense, and without any cost or expense whatever to the party sued, defend such suit and indemnify and save harmless the party sued against all costs and expenses thereof and promptly pay or cause to be paid any final judgment recovered against the party sued; provided, however, that the party sued shall promptly upon the bringing of any such suit against it give timely written notice to the indemnifying party and thereafter provide, in a timely manner, all such information as may from time to time be requested, and that the party sued shall have reasonable approval rights of any settlement. Each party shall furnish to the other all such information relating to claims made for the injuries, deaths,

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losses, damage or destruction of the type covered by this section as such other party may from time to time request.

SECTION 6 - GENERAL PROVISIONS

6.1. Changes. 6.1.a. Agency Directed Changes. The Agency may at any time, and without notice to any third parties, make changes in the Professional Services (“Change Order”) to be performed within the general scope of this Agreement, by written notice to the Contractor. If any such change causes an increase or decrease in the cost of, or the time required for the performance of any part of the Professional Services under this Agreement, provided the change is not the result of an error or omission of the Contractor or any Sub-Contractor, the Agency shall make an equitable adjustment in to the Contract Amount, or Contract Schedule, or both, and modify this Agreement. The Contractor must assert its right to an adjustment under this clause within twenty (20) days from the date of receipt of the written Change Order. 6.1.b. Failure to agree to any adjustment shall be a dispute under Section 6.2. However, nothing in this clause shall excuse the Contractor from proceeding with the Change Order. 6.1.c. Change Order Accounting. The Contractor, for each Change Order, shall maintain separate accounts, of all incurred segregated, direct costs of Professional Services, both changed and not changed, allocable to the change. The Contractor shall maintain such accounts until the Parties agree to an equitable adjustment for the changes ordered by the Agency or the matter is conclusively disposed of in accordance with Section 6.2.

6.2. Disputes Resolution.

6.2.a. Alternative Dispute Resolution. Agency and Contractor shall attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith and with a spirit of mutual cooperation (including reference to more senior levels of management at Agency and with Contractor as appropriate). If those attempts fail, then the Parties shall submit the dispute to mediation (or some other mutually agreeable form of alternative dispute resolution). Agency and Contractor shall select a mutually acceptable mediator (or other form of alternative dispute resolution if mutually agreed) within forty-five (45) calendar days after a Party gives written notice to the other Party requesting mediation (or other form of alternative dispute resolution if mutually agreed). Neither Party shall unreasonably withhold consent to the selection of a mediator. In the event the Parties are not able to consent to the selection of a mediator, the claim or controversy shall be resolved pursuant to Section 6.2.2. The Parties shall share the costs of the mediator or other alternative dispute resolution equally; provided, however, that each Party shall bear its own cost of any legal counsel and experts.

6.3. Suspension of Professional Services.

6.3.a. The Agency may, at its sole option and for its convenience, suspend all or any portion of the Contractor’s performance of Professional Services, for a

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reasonable period of time not to exceed six (6) months. In accordance with the provisions of this Agreement, the Agency will give written notice to the Contractor of such suspension. In event of such suspension, in accordance with the provisions of this Section 6.3, the Agency shall pay the Contractor for Professional Services performed up to the date of the suspension. Thereafter, the Agency may rescind such suspension by giving written notice of rescission to the Contractor. The Agency may then require the Contractor to resume performance of the Professional Services in compliance with the terms and conditions of this Agreement; provided however, that the Contractor shall be entitled to an extension of Contract Time equal to the length of the suspension, plus a reasonable time to remobilize and resume work unless otherwise agreed to in writing by the Parties. Upon resumption of performance from any suspension, the Contractor shall replace any Key Personnel released or reassigned during the suspension with replacement Key Personnel in accordance with Section 2.3.

6.4. Default All Events of Default and other claims, disputes and other matters in question between the Agency and the Contractor, arising out of or relating to either's obligations to the other under this Agreement which cannot be settled by negotiation between the parties or by alternative dispute resolution pursuant to Section 6.2.1, shall be decided by binding arbitration in accordance with the Rules for Commercial Arbitration of the American Arbitration Association then pertaining except for those specifically excluded in this Section 6.2. Except as set forth in Section 6.2.4, this agreement to arbitrate is expressly intended to exclude any obligation to arbitrate matters arising under this Project with any person other than the parties to this Agreement and any Sub-Contractors. Only the Agency may initiate an arbitration proceeding against the Contractor, and only the Contractor may initiate an arbitration proceeding against the Agency pursuant to the terms of this Section 6.2. Except as provided in Section 6.2.4, this Section 6.2 is also expressly intended to preclude consolidation of any arbitration proceeding under this Section 6.2 with any other arbitration proceeding.

Notice of the demand for arbitration shall be served upon the other Party to this Agreement and filed in writing with the American Arbitration Association. Parties shall submit to alternative dispute resolution methods outlined in Section 6.2.1 above prior to demanding arbitration. The demand for arbitration shall be made within a reasonable time after the claim accrues, or the dispute or other matter in question arises, but in no event shall it be made after the date when institution of legal or equitable proceedings based upon such claim, dispute or other matter in question would be barred by the applicable statute of limitations or notice of claim statute. The award rendered by arbitrators shall be final, and judgment may be entered thereon in accordance with the applicable law in the Maricopa County Superior Court. Each Party shall proceed with its obligations under this Agreement pending any arbitration proceedings, unless otherwise agreed in writing.

6.4.1. Severance and Joinder. To reduce the possibility of inconsistent adjudications, (i) a provision substantially similar to this Section 6.2 (“Disputes Resolution”) must be included in all contracts with Sub-Contractors and providers of materials under this Agreement, (ii) at the request of any Party, any arbitration pursuant to this Section 6.2 may join any other entity or entities, and consolidate

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claims arising under other contracts containing this Arbitration Provision, and (iii) only parties in privity with the Agency or the Contractor may be joined in such arbitration.

6.4.2. The requirements of this Section 6.2 to arbitrate shall not be applicable to an action for bodily injury or property damage brought by a third party who is under no obligation to arbitrate such claim with either the Agency or Contractor, insofar as either the Agency or Contractor may desire to assert any rights of indemnity or contribution against the other with respect to the subject matter of such action.

6.4.3. Uniform Arbitration Act. Except as otherwise provided herein, binding arbitration pursued under this provision shall be governed by the Uniform Arbitration Act as enacted in Arizona at A.R.S. § 12-1501, et seq.

6.4.4. Fees and Costs. All fees and costs associated with any arbitration pursuant to this Section 6.2 and the prevailing Party's reasonable attorney(s) fees, expert witness fees, and other costs, will be paid by the non-prevailing Party. The determination of prevailing and non-prevailing Party, and the appropriate allocation of fees and costs, will be included in the arbitration award.

6.4.5. Confidentiality. Any proceeding initiated under this Section 6.2 shall be deemed confidential to the maximum extent allowed by State Law and no Party shall make any disclosure related to the disputed matter or the outcome of any proceeding except to the extent required to seek interim equitable relief or to enforce an agreement reached or an award made hereunder. Notwithstanding the above, the Parties understand that the Agency is subject to Arizona’s public records laws.

6.4.6. Events of Default. Each of the following events shall constitute an Event of Default, which, among other events, gives the non-defaulting Party or Parties the right to seek mediation and/or arbitration pursuant to Section 6.2.

Agency Events of Default. Each of the following is an “Agency Event of Default”:

6.4.6.1.1. Failure to Make Payment When Due. The Agency fails to make on a timely basis any payment required pursuant to this Agreement.

6.4.6.1.2. Failure to Observe Covenants. The Agency fails to observe or perform any material covenants, agreements or provisions governing the Agency in this Agreement.

Contractor Events of Default. Each of the following is a “Contractor Event of Default”:

6.4.6.1.3. Failure to Make Payment When Due. The Contractor fails to pay any of its Sub-Contractors on a timely basis or to make any payment required pursuant to this Agreement unless such failure is due to an Agency Event of Default under Section 6.4.1.1.1 or to the existence of a good-faith dispute between the Contractor and its Sub-Contractors.

6.4.6.1.4. Failure to Observe Covenants. The Contractor fails to observe or perform any of the other covenants, agreements or provisions of this Agreement.

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6.4.6.1.5. Bankruptcy. Commencement of any case under the Bankruptcy Code, Title 11 of the United States Code, or commencement of any other bankruptcy, reorganization, receivership, custodianship or similar proceeding under any federal, state or foreign law by or against the Contractor.

6.4.7. Cure Periods.

6.4.7.a. Agency Monetary Default. In connection with the Agency Event of Default described in Section 6.4.1.1.1, the Contractor shall provide the Agency with written notice of the event of default. The Agency then has five (5) Business Days within which to cure such an event of default.

6.4.7.b. Contractor Monetary Default. In connection with the Contractor Event of Default described in Section 6.4.1.2.1, the Agency shall provide the Contractor with written notice of the event of default. The Contractor then has five (5) Business Days within which to cure such an event of default.

6.4.7.c. Agency Non-Monetary Default. In connection with the Agency Events of Default described in Section 6.4.1.1.2, the Contractor shall provide the Agency with written notice of the event of default. The Agency then has fifteen (15) Business Days after notification within which to cure such event; provided, however, that if it is not reasonably possible to cure such event within such fifteen (15) Business Day period, such cure period will be extended for a period of time necessary for Agency to commence and thereafter diligently continue to pursue a cure.

6.4.7.d. Contractor Non-Monetary Default. In connection with the Contractor Events of Default described in Sections 6.4.1.2.2, the Agency shall provide the Contractor with written notice of the event of default. The Contractor then has fifteen (15) Business Days after notification within which to cure such event; provided, however, that if it is not reasonably possible to cure such event within such fifteen (15) Business Day period, such cure period will be extended for a period of time necessary for Contractor to commence and thereafter diligently continue to pursue a cure. No notice of default shall be required in event of Contractor filing bankruptcy as defined under Section 6.4.1.2.3.

6.4.8. Remedies.

6.4.8.a. Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, and subject to Section 6.2, each of the Parties shall have all rights and remedies available at law or, as limited by this Agreement, in equity. The rights and remedies of the Parties are cumulative and the exercise by a Party of one or more of such rights or remedies does not preclude the exercise by the Party, at the same or different times, of any other rights or remedies for the same Event of Default or any other Event of Default by any Party.

6.4.8.b. Equitable Litigation. Notwithstanding any other provision of this Section 6 to the contrary, any Party can petition the Maricopa County Superior Court for interim equitable relief as necessary to preserve the status quo and prevent immediate and irreparable harm to a Party or to the Project pending resolution of a dispute pursuant to Section 6.2 provided for herein (“Equitable Litigation”). No court may order any permanent injunctive relief except as may be necessary to enforce an order or award entered pursuant to Section 6.2.

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6.5. Termination, Suspension or Abandonment. 6.5.1.Termination by Either Party. Subject to Section 6.2, this Agreement may be terminated by either Party upon not less than forty-five (45) days’ written notice should the other Party fail to perform in accordance with the terms of this Agreement through no fault of the Party initiating the termination.

6.5.2. Termination for Convenience. The Agency may, whenever the interests of the Agency so require, terminate this contract, in whole or in part for the convenience of the Agency. The Agency shall give written notice of the termination to the contractor specifying the part of the contract terminated and when termination becomes effective.

The Contractor shall incur no further obligations in connection with the terminated work, and, on the date set forth in the notice of termination, the contractor will stop work to the extent specified. The Contractor also shall terminate outstanding orders and subcontracts as they relate to the terminated work. The Contractor shall settle the liabilities and claims arising out of the termination of subcontracts and orders connected with the terminated work. The Agency may direct the Contractor to assign the contractor’s right, title, and interest under terminated orders or subcontracts to the Agency. The Contractor must still complete the work not terminated by the notice of termination and may incur such obligations as are necessary to do so.

The Agency may require the Contractor to transfer title and deliver to the Agency in the manner and to the extent directed by the Agency: (i) any completed supplies; and (ii) such partially completed supplies and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information and contract rights (hereinafter called “manufacturing materials”, as the Contractor has specifically produced or specially acquired for the performance of the terminated part of this contract. The Contractor shall, upon direction of the Agency, protect and preserve property in the possession of the Contractor in which the Agency has an interest. If the Agency does not exercise this right, the Contractor shall use its best efforts to sell such supplies and manufacturing materials.

6.5.3. The Agency shall pay the Contractor the following amounts:

6.5.3.1. contract prices for supplies or services accepted under the contract;

6.5.3.2. costs incurred in preparing to perform and performing the terminated portion of the work plus a fair and reasonable profit on such portion of the work (such profit shall not include anticipatory profit or consequential damages), less amounts paid or to be paid for accepted supplies or services; provided, however, that if it appears that the Contractor would have sustained a loss if the entire contract would have been completed, no profit shall be allowed or included, and the amount of compensation shall be reduced to reflect the anticipated rate of loss;

6.5.3.3. costs of settling and paying claims arising out of the termination of subcontracts (these costs must not include costs paid in accordance with subparagraph (2) of this paragraph); and

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6.5.3.4. the reasonable settlement costs of the Contractor including accounting, legal, clerical, and other expenses reasonably necessary for the preparation of settlement claims and supporting data with respect to the terminated portion of the contract and for the termination and settlement of subcontracts thereunder, together with reasonable storage, transportation, and other costs incurred in connection with the protection or disposition of property allocable to the terminated portion of this contract.

The total sum to be paid the Contractor under this section shall not exceed the total contract price plus the reasonable settlement costs of the Contractor reduced by the amount of payments otherwise made, the proceeds of any sales of supplies and manufacturing materials under this paragraph, and the contract price of work not terminated.

6.5.4. Termination for Default. The Agency may terminate the Contractor’s work, in whole or in part, for default under any of the following circumstances.

A. Failure or refusal of the Contractor to perform any obligation required under the Agreement.

B. Bad faith by the Contractor.

C. Abandonment of the Agreement by the Contractor.

D. Failure to comply with any law, ordinance, rule and regulation applicable to the Contractor.

E. Failure to promptly correct or re-perform rejected work.

Upon the Agency’s termination of the Agreement because of the Contractor’s default under the Agreement, the Agency shall have the right to complete the work by whatever means and methods it deems advisable. The Contractor shall be liable for the cost to the Agency, not to exceed Contractor’s total contract value, for completing the work resulting from the Contractor default.

6.5.5. Termination Under A.R.S. § 38-511. The Agency may terminate this Agreement without penalty or further obligation pursuant to A.R.S. § 38-511 if any person significantly involved in initiating, securing, drafting or creating this Agreement on behalf of the Agency is or becomes, within three (3) years after its execution and while this Agreement is in effect, an employee of the Contractor, or a Contractor with respect to the subject matter of this Agreement. Such termination shall be effective when written notice from the Agency is received by the Contractor, unless the notice specifies a later time. The Agency may, by written notice to the Contractor, terminate this Agreement if it is found by the Agency that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Contractor or any agent or representative of the Contractor to any officer or employee of the Agency. The Contractor warrants that no person or entity has been employed or retained to solicit or secure the Agreement upon an agreement or understanding for a commission, brokerage or contingent fee, and that no member of the Agency Board of Directors or any employee of the Agency has an interest (financial or otherwise) with or in the Contractor.

6.5.6. Compensation if Agreement is Terminated for Convenience. Subject to Sections 6.5.2 and 6.5.7, in the event of a termination by the Agency for convenience or for any reason not the fault of the Contractor, reasonable compensation shall be paid to the Contractor for services properly performed on the Project prior to the effective date of

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the termination and for reasonable expenses properly incurred as a result of the termination. In no event will the Agency be liable for lost profits of Contractor or Sub-Contractors on unperformed Professional Services. Contractor shall put a similar clause in each Sub-Contractor’s contract. Further, Contractor shall be reimbursed for that portion of the actual eligible costs (not otherwise reimbursed under this Agreement) incurred by Contractor hereunder to implement any termination to the extent allowable pursuant to 48 CFR, Part 31.205-42.

6.5.7. Surrender of Documents if Agreement is Terminated. In the event this Agreement is terminated before the Contractor’s services under this Agreement are completed, the Agency may take over the service to be done under this Agreement and prosecute the services to completion by contract or otherwise. If this Agreement is terminated by the Agency, all work products and/or documents relating to the _________Services Project shall be surrendered forthwith by the Contractor to the Agency.

6.5.8. Payment Conditioned on Availability of Funds. Every payment obligation of the Agency created by this Agreement is conditioned upon the availability of funds appropriated or allocated for the payment of such obligation. If funds are not allocated and available for the continuance of the Contractor’s services, this Agreement may be terminated by the Agency at the end of the period for which funds are available. The Agency shall notify the Contractor at the earliest possible time if the Contractor’s services will or may be affected by a shortage of funds. No liability shall accrue to the Agency in the event this provision is exercised, and the Agency shall not be obligated or liable for any future payments or for any damages as a result of termination under this Section. The Contractor shall put a similar clause in each of its Sub-Contractor’s contracts.

6.5.9. Assignment of Contractor’s Contract. This Agreement may be assigned by the Agency to any entity in the exercise of the sole and absolute discretion of the Agency. All contracts between Contractor and its Sub-Contractors shall state that in the event of the Contractor’s termination under this Section 6.5, the Sub-Contractor’s contract may be assigned, at the Agency’s discretion, to a replacement Contractor. In the interim, the Agency may elect, but without any obligation to do so, to perform the Contractor’s obligations under the Contractor’s contracts with its Sub-Contractors. The Contractor shall put a clause in each of its contracts with its Sub-Contractors to permit the Agency to make such an election. The Contractor shall not assign or attempt to assign this Agreement without the advance, written approval of the Agency. Any such unapproved assignment shall be void.

6.6 Organization/Employment Disclaimer. 6.6.1. Organization. This Agreement is not intended to constitute, create, give to, or otherwise to recognize a joint venture agreement or relationship, partnership, or formal business organization of any kind, and the rights and obligations of the Parties shall be only those expressly set forth in this Agreement.

6.6.2. Employment. The Parties agree that no persons supplied by the Contractor in the performance of Contractor’s obligations under this Agreement are considered to be Agency employees, and that no rights of Agency’s civil service, retirement, or personnel rules accrue to such persons. The Contractor shall have total responsibility for all salaries, wages, bonuses, retirement, withholdings, workers’ compensation, occupational disease compensation, unemployment compensation, other employee benefits and all taxes and premiums appurtenant thereto concerning such persons, and

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shall save and hold the Agency harmless with respect thereto. The obligations of this Section 6.6.2 shall survive termination of this Agreement.

6.7. Use of Contractor’s Plans, Drawings, Graphics and Other Documents. 6.7.1. Intellectual Property Rights. The Agency and the Contractor agree that the Contractor’s deliverables, inclusive of working papers both hardcopy and electronic, hereunder generated in connection with the services rendered in the performance of this Agreement (collectively, the “Products”) shall be the property of the Agency provided, however, the Contractor is granted an unrestricted license to retain copies and use all Products. Agency’s use shall be limited to the intended use for which the Products are provided under this Agreement and the Contractor shall retain ownership of its intellectual property including the procedures, processes, internal resources, tools and other means used by the Contractor to prepare the Products.

6.7.2. Future Re-use and Liability to Third Parties. In the case of future re-use of any of the Products by the Agency, the Contractor’s name shall be removed from the re-used Products and the Contractor shall not be liable to the Agency or to third parties for their re-use. Agency shall defend and indemnify Contractor against any liability or claim against Contractor arising from Agency’s re-use of, or authorization for a third party to re-use, the Products, except for use that is permitted under this Agreement. The obligation of this Section 6.7.2 shall survive termination of this Agreement.

6.7.3. Intellectual Property Indemnity. Without limiting the generality of Section 5.3 of this Agreement, the Contractor shall defend all suits or claims alleging, relating to or including infringement of third party intellectual property rights as such rights pertain to the manufacture, construction, design and/or use of the Project or of any data furnished under this Agreement for this project, except that this indemnity shall not apply if Agency’s specifications or requirements caused the infringement. The Contractor shall hold the Agency and its officers, agents and employees acting for or on behalf of the Agency harmless from any liability including without limitation all costs, expenses and reasonable attorneys’ fees related to the violation or alleged violation of any intellectual property rights of third parties relating to the creation, delivery, publication or use of any data, technology or information furnished under this Agreement. The obligations of this Section 6.7.3 shall survive termination of this Agreement.

6.8. Waiver. Neither the Agency’s review, approval or acceptance of, nor payment for, the services required under this Agreement shall be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and the Contractor shall be and remain liable to the Agency in accordance with applicable law for all damages to the Agency caused by the Contractor’s negligent performance of any of the services furnished under this Agreement.

6.9. Inspection of Work. All Professional Services shall be subject to review, inspection and test by the Agency and the FTA to the extent practicable at all times and places during the term of this Agreement. The Agency and FTA shall have the right to enter the Contractor’s premises, during normal business hours, for the purpose of inspecting and auditing all data and records relating to any work, which pertains to the Contractor's performance under this Agreement. Agency and FTA will give Contractor an advance written notice of three working days prior to entering and inspecting the Contractor’s premises.

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6.10 Independent Contractor. 6.10.1. Under the terms of this Agreement, the Contractor is an independent contractor and has and retains full control and supervision of the services performed by, and full control over, the employment and direct compensation and discharge of all persons, other than Agency employees, assisting in the performance of its services hereunder. The Contractor agrees to be solely responsible for all matters relating to wages, hours of work, working conditions and payment of employees, including compliance with social security, all payroll taxes and withholdings, unemployment compensation, and all other requirements relating to such matters.

6.10.2.The Contractor agrees to be responsible for its own acts and those of its subordinates, employees and any and all Sub-Contractors, if any, during the life of this Agreement.

6.10.3. If the Contractor is comprised of more than one legal entity, each such entity shall be jointly and severally liable hereunder.

6.10.4. The Agency and the Contractor acknowledge that although the Chief Executive Officer or his designee shall oversee and monitor the Contractor, the Chief Executive Officer or his designee will not control the day-to-day operations of the Contractor or any of its Sub-Contractors. The Chief Executive Officer or his designee shall not determine means, methods, techniques, procedures or safety precautions and programs in connection with the Contractor’s and Sub-Contractors’ performance under this Agreement, which shall solely be the responsibility and obligation of the Contractor.

6.11. Improper Exercise of Authority. It is further understood and agreed that the Contractor shall not in any way exercise any portion of the authority or powers of the Agency and shall not make a contract or commitment, or in any way represent itself as an agent of the Agency beyond the scope of this Agreement unless expressly authorized, in writing, by the Agency.

6.12. Covenants Against Contingent Fees. The Contractor warrants that it has not employed or retained any company or person, to solicit or secure this Agreement, and that it has not paid or agreed to pay any company or person, other than a bona fide employee working solely for the Contractor, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or making of this Agreement. The preceding sentence does not apply to Contracts entered into with Sub-Contractors for the performance of Professional Services as permitted under this Agreement. For breach or violation of this warranty, the Agency shall have the right to terminate this Agreement without liability, or in its discretion, to deduct from the Contract Amount or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.

6.13. Successors and Assigns. The Contractor and all successors, executors, administrators and assigns of Contractor’s interest in the Agreement or the compensation herein provided shall be bound to the Agency to the full legal extent to which the Contractor is bound with respect to each of the provisions of this Agreement.

6.14. Employee Removal. If the Agency determines that any person employed by Contractor or by any Sub-Contractor of Contractor is not performing the services hereunder in a proper and

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skillful manner, and Agency has previously notified Contractor of its concern and allowed Contractor sufficient time to correct the situation, then at the written request of Agency, Contractor or such Sub-Contractor shall remove such person from working on the Project and such person shall not be re-employed on the Project without the prior written approval of Agency. The Agency may require the Contractor to remove from the Project any personnel for the good of the Project.

6.15. Antitrust Violations. The Contractor and the Agency recognize that, in actual economic practice, overcharges resulting from antitrust violations are in fact borne by the ultimate end user, in this case, the Agency. Therefore, Contractor, acting as a vendor, hereby assigns to the Agency any and all claims for such overcharges.

6.16 Inclusion of Provisions in Subcontracts. The terms of this Agreement shall be incorporated into and made part of any Sub-Contractor assignment pursuant to this Agreement. All Contracts with Sub-Contractors shall be submitted to the Chief Executive Officer or his designee for review and approval prior to execution thereof by Contractor.

SECTION 7 - CONTRACTOR RESPONSIBILITIES

7.1. Registration, Licenses and Permits. The Contractor agrees that it has and will maintain, at no direct cost to the Agency, all federal, state, and local registrations, licenses and permits necessary to complete the Scope of Services.

7.2. Responsibility for Services Performed. 7.1.a. Quality of Services. The Contractor shall be responsible for the professional quality, technical accuracy, and the coordination of all services furnished by the Contractor under this Agreement. The Contractor shall, without additional compensation, correct or revise any errors or deficiencies in its services.

7.1.b. Compliance with Laws and Standards. Contractor further agrees that the completed Scope of Services will comply with all applicable laws, regulations, ordinances and the generally accepted standards of the various professions contributing to the Products through the Contractor in effect at the time that the Agency completes its review of the Products. The Agency and Contractor shall work jointly to pursue a Change Order for any change in this Agreement, which are attributable to a change in any law, regulation, or ordinance in effect at the time the Agreement is executed by the Agency and Contractor.

7.3. Project Management. The Contractor will work at the direction of the Chief Executive Officer or his designee. The Agency may delegate authority to the Chief Executive Officer or his designee of any action required under this Agreement to be made by the Agency. Project management responsibilities shall include, but are not necessarily limited to, the following:

7.3.a. Performance Within Schedule. The Contractor agrees that it will provide sufficient personnel to perform the Professional Services in a prompt and diligent manner consistent with the approved schedule for the Project.

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7.3.b. Project Control. Contractor’s reporting, cost and schedule systems will adhere to the requirements of the Agency policies and procedures and Contractor shall obtain approval/direction from the Agency when there is uncertainty or potential conflict identified.

7.3.c. Schedule. Contractor shall develop a schedule, in accordance with Agency scheduling procedure, inclusive of all aspects of the work, identifying all contract deliverables, in order to represent the sole work plan for accomplishing the Professional Services.

7.3.d Cost. Without limiting the Contractor’s obligations under Section 4 of this Agreement, Contractor shall:

• Track costs so as to permit cost audits;

• Provide timely notification to Agency of potential changes to the Contract Amount.

7.3.e. Reporting. Without limiting the Contractor’s obligations under Section 3 of this Agreement, Contractor shall submit an Updated Progress Schedule, a draft Monthly Status Report and a Status Narrative Report. There will be a meeting (in person or over phone) between Contractor and the Agency to review this draft report. Specific requirements of the Status Narrative Report are as follows:

• Actual completion dates for Tasks completed during the report period.

• Actual start dates for Tasks started during the report period.

• Estimated start dates for Tasks scheduled to start during the month following the report period.

7.3.f. Project Review Meetings. The Contractor is expected to meet (in person or over phone) periodically as requested by the Chief Executive Officer or his designee to review progress and to discuss and seek resolutions to Project issues and concerns.

7.3.g. Project Communication and Relationships.

It is the role and responsibility of the Contractor to establish and maintain effective cooperative work relationships and work in a cooperative manner with the Agency, LRT participating cities, public agencies, project stakeholders, potentially affected interests, property owners, the general public, elected officials and staff from other agencies.

The Contractor shall clearly communicate project goals, technical findings, and solutions to a variety of audiences when directed by the Chief Executive Officer or his designee.

For public involvement, the Contractor, if directed by the Agency, must be able and willing to prepare planning and environmental graphics and documents that communicate the scale and features of the Project, and how the Project relates to its environment.

7.4. Publication Provisions. Publication rights to all information developed under this Agreement are reserved by the Agency. The Contractor shall not release information developed under this Agreement prior to Agency publication, except upon written approval of the Agency.

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7.5. Conflicts of Interest. 7.5.a. Employees. The Contractor shall not engage the services in connection with this Agreement of any present or former employee of the Agency or any Contractor thereto who was involved as a decision maker in the selection or approval processes or who negotiated and/or approved billings or contract modifications for this Agreement. The Contractor agrees that, to the best of its knowledge, no public or private interest exists and none shall be acquired directly or indirectly which would conflict in any manner with the performance of this Agreement.

7.5.b. Prohibited Interest. Without limiting the generality of A.R.S. § 38-501 et seq., no member, officer, employee of the Agency or member of its governing body during his/her tenure or for three years thereafter, shall have any interest, direct or indirect, in this Agreement or the proceeds thereof. This Agreement is subject to termination pursuant to A.R.S. §38-511.

SECTION 8 - GENERAL PROVISIONS

8.1. Governing Law. 8.1.a. This Agreement shall be governed by the laws of the State of Arizona without reference to conflict of laws provisions.

8.1.b. This Agreement and all contracts, subcontracts and purchase orders resulting from this Agreement will comply with all State and Federal contract provisions required by law including, but not limited to, the applicable Federal laws and regulations in Exhibit D attached hereto and included herein by reference.

8.2. Integration Clause. This Agreement, together with all exhibits hereto, represent the entire agreement between the Parties and supersede all prior negotiations, representations or agreements, either written or oral.

8.3. Order of Precedence. In case of any conflict between the integrated documents in Section 8.2 above the order in which the various documents shall govern is as follows from highest to lowest: The Agreement, Exhibit A – Scope of Services, Exhibit D – Applicable Federal Laws and Regulations, Exhibit C – Contract Costs/Price Detail and Exhibit B – Key Personnel.

8.4. Third-Party Beneficiaries. Nothing contained in this Agreement shall create a contractual relationship with or cause of action in favor of a third party against either the Agency or the Contractor.

8.5. Confidentiality. The Contractor shall not divulge information concerning this Project to anyone (including, without limitation, information in applications for permits, variances or other forms of governmental consents or regulatory acknowledgments) without the Agency’s prior written consent. The Contractor shall obtain a similar agreement from its Sub-Contractors and others employed by it. The Agency reserves the right to release any information concerning the Project. This requirement shall survive the expiration of this Agreement. This Section does not cover information which is matter of public record.

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8.6. Notices. All notices and other communications required or permitted by this Agreement shall be in writing and (i) delivered in person, (ii) sent by first class mail, (iii) sent by certified first class mail, return receipt requested, postage prepaid, or (iv) by commercial or United States Postal Service overnight delivery service, to the following addresses or to such other addresses as the Parties may hereafter designate by written notice. All such notices or other communications shall be deemed delivered immediately if delivered in person, three (3) days after deposit in the United States Postal Service first class mail if mailed, upon receipt as indicated on signed certified mail receipt and on the following Business Day if sent by overnight delivery service.

AGENCY: Valley Metro Rail, Inc. 101 North 1st Ave. Suite 1300 Phoenix, AZ 85003 Attn: Joe Ramirez Manager Contracts and Procurement CONTRACTOR: Attn:

8.7. Headings. The subject headings of this Agreement are included for purposes of convenience only and shall not affect the construction or interpretation of any provisions of this Agreement.

8.8. Non-waiver. Should the Agency fail or delay in exercising or enforcing any right, power, privilege or remedy under this Section, such failure or delay shall not be deemed a waiver, release or modification of the requirements of this Section or of any of the terms or provisions thereof.

8.9. Interpretations. To the extent permitted by the context in which used, (a) words in the singular number shall include the plural, words in the masculine gender shall include the feminine and neuter, and vice versa; (b) reference to “persons” or “parties” in this Agreement shall be deemed to refer to natural persons, corporations, general partnerships, limited partnerships, trusts and other entities; (c) (unless specified otherwise) references to paragraphs, sections or articles are to paragraphs, sections or articles of this Agreement; and (d) any reference to “day” in this Agreement shall be deemed to refer to calendar days unless this Agreement expressly requires Business Days.

8.10 Amendment. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Agency and Contractor. This Agreement may not be

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changed, modified or rescinded except in writing by the Agency and the Contractor, and any attempt at oral modification of this Agreement shall be void and of no effect. 8.11. Force Majeure. Failure in performance by either Party hereunder shall not be deemed a default or breach hereunder and the non-occurrence of any condition hereunder shall not give rise to any right otherwise provided herein when such failure or non-occurrence is due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions; unusually severe weather; inability (when both Parties are faultless) of any contractor, sub-contractor or supplier; acts or failure to act, of any public or governmental agency or entity, all of which are beyond the reasonable control, and without the fault, of the Party claiming an extension of time to perform.

8.12. Attachments.

Exhibit A Scope and Schedule of Services Exhibit B Key Personnel Exhibit C Applicable Federal Laws and Regulations

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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day and year first herein written.

FOR AGENCY: VALLEY METRO RAIL, INC. A non-profit corporation formed under the laws of the State of Arizona

By:

Name: Richard J. Simonetta

Title: Chief Executive Officer

Approved as to form: _______________________

Michael J. Ladino, Esq

Legal Counsel for Valley Metro Rail Inc.

FOR THE CONTRACTOR:

By:

Name:

Title:

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EXHIBIT A SCOPE OF SERVICES

I. SCOPE

A. Background.

(1) Scope of Work.

---- END ----

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EXHIBIT B KEY PERSONNEL

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EXHIBIT C

APPLICABLE FEDERAL LAWS AND REGULATIONS

D.1. FLY AMERICA

If this Contract involves the international transportation of goods, equipment, or personnel by air, Contractor agrees 1) to use U.S. flag carriers, to the extent service by these carriers is available and 2) to include this requirement in subcontracts at every tier. 49 U.S.C. 40118 and 4 CFR Part 52.

D.2. ENERGY CONSERVATION

The Contractor shall 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 (42 USC Section 6321, et seq.).

D.3. CLEAN WATER REQUIREMENTS

If the total value of this Contract exceeds $100,000:

(1) 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 seq. The Contractor agrees to report each violation to AGENCY and understands and agrees that AGENCY will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each sub-Contract exceeding $100,000 financed in whole or in part with Federal assistance provided by the FTA.

D.4. CLEAN AIR

If the total value of this Contract exceeds $100,000:

(1) The Contractor 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 Contractor agrees to report each violation to AGENCY and understands and agrees that AGENCY will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office.

(2) The Contractor also agrees to include these requirements in each sub-Contract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.

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D.5. LOBBYING

Definitions. As used in this attachment D only,

"Agency", as defined in 5 U.S.C. 552(f), includes Federal executive departments and agencies as well as independent regulatory commissions and Government corporations, as defined in 31 U.S.C. 9101(1).

"Covered Federal action" means any of the following Federal actions:

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.

Covered Federal action does not include receiving from an agency a commitment providing for the United States to insure or guarantee a loan. "Indian tribe" and "tribal organization" have the meaning provided in section 4 of the Indian self-determination and Education Assistance Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions of Indian tribes in that Act.

"Influencing or attempting to influence" means making, with the intent to influence, any communication to or appearance before 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 any covered Federal action.

"Local government" means a unit of government in a State and, if chartered, established, or otherwise recognized by a State for the performance of a governmental duty, including a local public authority, a special district, an intrastate district, a council of governments, a sponsor group representative organization, and any other instrumentality of a local government.

"Officer or employee of an Agency" includes the following individuals who are employed by an Agency:

An individual who is appointed to a position in the Government under title 5, U.S. Code, including a position under a temporary appointment;

A member of the uniformed services as defined in section 101(3), title 37, U.S. Code;

A special Government employee as defined in section 202, title 18, U.S. Code; and,

An individual who is a member of a Federal advisory committee, as defined by the Federal Advisory Committee Act, title 5, U.S. Code appendix 2.

"Person" means an individual, corporation, company association, authority, firm, partnership, society, State, and local government, regardless of whether such entity is operated for profit or not for profit. This term excludes an Indian tribe, tribal

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organization, or any other Indian organization with respect to expenditures specifically permitted by other Federal law.

"Reasonable compensation" means, with respect to a regularly employed officer or employee of any person, compensation that is consistent with the normal compensation for such officer or employee for work that is not furnished to, not funded by, or not furnished in cooperation with the Federal Government. "Reasonable payment" means, with respect to professional and other technical services, a payment in an amount that is consistent with the amount normally paid for such services in the private sector. "Recipient" includes all Contractors and sub-contractors at any tier in connection with a Federal Contract. The term excludes an Indian tribe, tribal organization, or any other Indian organization with respect to expenditures specifically permitted by other Federal law.

"Regularly employed" means, with respect to an officer or employee of a person requesting or receiving a Federal Contract, an officer or employee who is employed by such person for at least 130 working days within one year immediately preceding the date of the submission that initiates Agency consideration of such person for receipt of such Contract. An officer or employee who is employed by such person for less that 130 working days within one year immediately preceding the date of the submission that initiates Agency consideration of such person shall be considered to be regularly employed as soon as he or she is employed by such person for 130 working days.

"State" means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, a territory or possession of the United States, an agency or instrumentality of a State, and a multi-State, regional, or interstate entity having governmental duties and powers.

D.5.1. Prohibition

Section 1352 of title 31, U.S. Code provides in part that no appropriated funds may be expended by the recipient of a Federal Contract, grant, loan, or cooperative agreement to pay any person for influencing or attempting to influence 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 any of the following covered Federal actions: 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.

The prohibition does not apply as follows:

(i) Agency and legislative liaison by Own Employees.

(a) The prohibition on the use of appropriated funds, in paragraph B (1) of this section, does not apply in the case of a payment of reasonable compensation made to an officer or employee of a person requesting or receiving a Federal Contract if the payment is for Agency and legislative liaison activities not directly related to a covered Federal action.

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(b) For purposes of paragraph B (2) (i) (a) of this section, providing any information specifically requested by an Agency or Congress is allowable at any time.

(c) For purposes of paragraph B (2) (i) (a) of this section the following Agency and legislative liaison activities are allowable at any time only where they are not related to a specific solicitation for any covered Federal action:

(1) Discussing with an Agency (including individual demonstrations) the qualities and characteristics of the person's products or services, conditions or terms of sale, and service capabilities; and,

(2) Technical discussions and other activities regarding the application or adaptation of the person's products or services for an Agency's use.

(d) For purposes of paragraph B (2) (i) (a) of this section, the following Agency and legislative liaison activities are allowable only where they are prior to formal solicitation of any covered Federal action:

(1) Providing any information not specifically requested but necessary for an Agency to make an informed decision about initiation of a covered Federal action;

(2) Technical discussions regarding the preparation of an unsolicited proposal prior to its official submission; and,

(3) Capability presentations by persons seeking awards from an Agency pursuant to the provisions of the Small Business Act, as amended by Public Law 95-507 and other subsequent amendments.

(e) Only those activities expressly authorized by paragraph B (2) (i) of this section are allowable under paragraph B (2) (i).

(ii) Professional and technical services by Own Employees.

(a) The prohibition on the use of appropriated funds, in paragraph B (1) of this section, does not apply in the case of a payment of reasonable compensation made to an officer or employee of a person requesting or receiving a Federal Contract or an extension, continuation, renewal, amendment, or modification of a Federal Contract if payment is for professional or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal Contract or for meeting requirements imposed by or pursuant to law as a condition for receiving that Federal Contract.

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(b) For purposes of paragraph B (2) (ii) (a) of this section, "professional and technical services" shall be limited advice and analysis directly applying any professional or technical discipline. For example, drafting of a legal document accompanying a bid or proposal by a lawyer is allowable. Similarly, technical advice provided by an engineer on the performance or operational capability of a piece of equipment rendered directly in the negotiation of a Contract is allowable. However, communications with the intent to influence made by a professional (such as a licensed lawyer) or a technical person (such as a licensed accountant) are not allowable under this section unless they provide advice and analysis directly applying their professional or technical expertise and unless the advice or analysis is rendered directly and solely in the preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence made by a lawyer that do not provide legal advice or analysis directly and solely related to the legal aspects of his or her client's proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services. Similarly, communications with the intent to influence made by an engineer providing an engineering analysis prior to the preparation or submission of a bid or proposal are not allowable under this section since the engineer is providing technical services but not directly in the preparation, submission or negotiation of a covered Federal action.

(c) Requirements imposed by or pursuant to law as a condition for receiving a covered Federal award include those required by law or regulation, or reasonably expected to be required by law or regulation, and any other requirements in the actual award documents.

(d) Only those services expressly authorized by paragraph B (2) (ii) of this section are allowable under paragraph B (2) (ii).

(iii) Reporting for Own Employees.

No reporting is required with respect to payments of reasonable compensation made to regularly employed officers or employees of a person.

(iv) Professional and technical services by Other than Own Employees.

(a) The prohibition on the use of appropriated funds, in paragraph B (1) of this section, does not apply in the case of any reasonable payment to a person, other than an officer or employee of a person requesting or receiving a covered Federal action, if the payment is for professional or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal Contract or for meeting

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requirements imposed by or pursuant to law as a condition for receiving that Federal Contract.

(b) For purposes of paragraph B (2) (iv) (a) of this section, "professional and technical services" shall be limited advice and analysis directly applying to any professional or technical discipline. For example, drafting of a legal document accompanying a bid or proposal by a lawyer is allowable. Similarly, technical advice provided by an engineer on the performance or operational capability of a piece of equipment rendered directly in the negotiation of a Contract is allowable. However, communications with the intent to influence made by a professional (such as a licensed lawyer) or a technical person (such as a licensed accountant) are not allowable under this section unless they provide advice and analysis directly applying their professional or technical expertise and unless the advice or analysis is rendered directly and solely in the preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence made by a lawyer that do not provide legal advice or analysis directly and solely related to the legal aspects of his or her client's proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services. Similarly, communications with the intent to influence made by an engineer providing an engineering analysis prior to the preparation or submission of a bid or proposal are not allowable under this section since the engineer is providing technical services but not directly in the preparation, submission or negotiation of a covered Federal action.

(c) Requirements imposed by or pursuant to law as a condition for receiving a covered Federal award include those required by law or regulation, or reasonably expected to be required by law or regulation, and any other requirements in the actual award documents.

(d) Persons other than officers or employees of a person requesting or receiving a covered Federal action include Contractors and trade associations.

(e) Only those services expressly authorized by paragraph B (2) (iv) of this section are allowable under paragraph B (2) (iv).

D.5.2. Disclosure

Each person who requests or receives from an Agency a Federal Contract shall file with that Agency a certification, set forth in this document, that the person has not made, and will not make, any payment prohibited by paragraph (b) of this clause.

Each person who requests or receives from an Agency a Federal Contract shall file with that agency a disclosure form, Standard Form-LLL, "Disclosure of Lobbying

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Activities," if such person has made or has agreed to make any payment using non-appropriated funds (to include profits from any covered Federal action), which would be prohibited under paragraph (b) of this clause if paid for with appropriated funds.

Each person 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 the information contained in any disclosure form previously filed by such person under paragraph C (2) of this section. An event that materially affects the accuracy of the information reported includes:

A cumulative increase of $25,000 or more in the amount paid or expected to be paid for influencing or attempting to influence a covered Federal action; or

A change in the person(s) or individual(s) influencing or attempting to influence a covered Federal action; or,

A change in the officer(s), employee(s), or member(s) contacted to influence or attempt to influence a covered Federal action.

Any person who requests or receives from a person referred to in paragraph (C) (1) of this section a sub-Contract exceeding $100,000 at any tier under a Federal Contract shall file a certification, and a disclosure form, if required, to the next tier above.

All disclosure forms, but not certifications, shall be forwarded from tier to tier until received by the person referred to in paragraph C (1) of this section. That person shall forward all disclosure forms to the Agency.

D.5.3 Penalties

Any person who makes an expenditure prohibited under paragraph B of this clause shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure.

Any person who fails to file or amend the disclosure form to be filed or amended if required by this clause, shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

Contractors may rely without liability on the representations made by their sub-contractors in the certification and disclosure form.

D.5.4. Cost Allowable

Nothing in this clause is to be interpreted to make allowable or reasonable any costs which would be unallowable or unreasonable in accordance with Part 31 of the Federal Acquisition Regulation. Conversely, costs made specifically unallowable by the requirements in this clause will not be made allowable under any of the provisions of Part 31 of the Federal Acquisition Regulation.

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D.6. 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 Agreement (Form FTA MA(5) dated October 1, 1999) between the AGENCY and the 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.

D.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.

D.8. NO FEDERAL GOVERNMENT OBLIGATION TO THIRD PARTIES

AGENCY and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of 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 AGENCY, Contractor, or any other party (whether or not a party to that Contract) pertaining to any matter resulting from this 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 sub-contractor who will be subject to its provisions.

D.9. PROGRAM FRAUD AND FALSE OR FRAUDULENT 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 CFR Part 31, apply to its actions on this Project. Upon execution of the Contract, the Contractor certifies or affirms the truthfulness of any statement it has made, it makes, or causes to be made, pertaining to this 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 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

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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 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 sub-contractor who will be subject to the provisions.

D.10. PRIVACY ACT

The following requirements apply to the Contractor and its employees that administer any system of records on behalf of the Federal Government under any Contract:

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.

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.

D.11. CIVIL RIGHTS

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 VII 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 seq., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive

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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.

Age - 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 sub-Contract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties.

D.12. DISADVANTAGED BUSINESS ENTERPRISE

Policy. The AGENCY has established a Disadvantaged Business Enterprise (DBE) Program in accordance with regulations of the U.S. Department of Transportation (DOT), 49 CFR Part 26. The AGENCY has received Federal financial assistance from the Department of Transportation, and as a condition of receiving this assistance, the AGENCY has signed an assurance that it will comply with 49 CFR Part 26. It is the policy of the AGENCY to ensure that DBEs, as defined in part 26, have an equal opportunity to receive and participate in DOT-assisted Contracts.

Contractor and Sub-contractor Obligation. Contractor and/or Sub-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 DOT-assisted Contracts. 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 AGENCY deems appropriate.

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D.13. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION 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, dated April 15, 1996, 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 Contractor shall not perform any act, fail to perform any act, or refuse to comply with any AGENCY requests which would cause the AGENCY to be in violation of the FTA terms and conditions.

D.14. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT

40 U.S.C. § 327 -333 (1999) 29 C.F.R. § 5 (1999) 29 C.F.R. § 1926 (1998) and Section 102 of the Act, which deals with overtime requirements, applies to all construction contracts in excess of $2,000 and; Section 107 of the Act which deals with OSHA requirements applies to construction contracts in excess of $2,000 only. The requirements of this section do not apply to contracts or subcontracts for the purchase of supplies or materials or articles normally available on the open market. This Clause applies to third party contractors and sub-contractors.

These clauses are specifically mandated under DOL regulation 29 C.F.R. § 5.5 and when preparing a construction contract in excess of $2,000 these clauses should be used in conjunction with the Davis-Bacon Act clauses as discussed previously. For non-construction contracts, this is the only section required along with the payroll section.

Overtime requirements –

No contractor or sub-contractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

Violation; liability for unpaid wages; liquidated damages –

In the event of any violation of the clause set forth in paragraph (1) of this section the contractor and any sub-contractor responsible therefore shall be liable for the unpaid wages. In addition, such contractor and sub-contractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this section, in the sum of $ 10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section.

Withholding for unpaid wages and liquidated damages –

The AGENCY shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or sub-contractor under any such contract or any other Federal contract with the same prime contractor,

CLEANING SERVICES

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or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or sub-contractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section.

Sub-contracts –

The contractor or sub-contractor shall insert in any subcontracts the clauses set forth in this section and also a clause requiring the sub-contractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any sub-contractor or lower tier sub-contractor with the clauses set forth in this section.

Contract Work Hours and Safety Standards Act –

The Contractor agrees to comply with section 107 of the Contract Work Hours and Safety Standards Act, 40 U.S.C. section 333, and applicable DOL regulations, " Safety and Health Regulations for Construction " 29 C.F.R. Part 1926. Among other things, the Contractor agrees that it will not require any laborer or mechanic to work in unsanitary, hazardous, or dangerous surroundings or working conditions.

Sub-contracts - The Contractor also agrees to include the requirements of this section in each subcontract. The term "subcontract" under this section is considered to refer to a person who agrees to perform any part of the labor or material requirements of a contract for construction, alteration or repair. A person who undertakes to perform a portion of a contract involving the furnishing of supplies or materials will be considered a "sub-contractor" under this section if the work in question involves the performance of construction work and is to be performed: (1) directly on or near the construction site, or (2) by the employer for the specific project on a customized basis. Thus, a supplier of materials which will become an integral part of the construction is a "sub-contractor" if the supplier fabricates or assembles the goods or materials in question specifically for the construction project and the work involved may be said to be construction activity. If the goods or materials in question are ordinarily sold to other customers from regular inventory, the supplier is not a "sub-contractor." The requirements of this section do not apply to contracts or subcontracts for the purchase of supplies or materials or articles normally available on the open market.

D.15. COPELAND ANTI-KICKBACK ACT

Per 40 U.S.C. § 276c (1999), 29 C.F.R. § 3 (1999) and 29 C.F.R. § 5 (1999) the Act applies to all construction contracts in excess of $2,000 and shall flow down to all third party contractors and sub-contractors.

Section 3.1 of the Copeland Act makes it clear that the purpose of the Act is to assist in "the enforcement of the minimum wage provisions of the Davis- Bacon Act." In keeping with this intent DOL has included a section on the Copeland Act in the mandatory language of the Davis-Bacon provisions. The language can be found at § 5.5(a)(5) of the Davis-Bacon model clauses and reads as follows:

Compliance with Copeland Act requirements - The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in the RFP and any resultant contract.

CLEANING SERVICES AGREEMENT Between AGENCY: VALLEY … · 2020-01-15 · CLEANING SERVICES Federal...

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