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									                                                                       Agenda Item # 10.3
                                                    For Council Meeting of: March 30, 2010

                                         CITY OF SANTA ROSA
                                            CITY COUNCIL

TO:                                 MAYOR AND CITY COUNCIL
SUBJECT:                            RESOLUTION FOR CONTRACT AWARD TO NEW FLYER
                                    OF AMERICA, INC. FOR SEVEN GASOLINE HYBRID
                                    ELECTRIC BUSES THROUGH A COOPERATIVE
                                    PURCHASE
STAFF PRESENTER:                    MONA A. BABAUTA, DEPUTY DIRECTOR-TRANSIT
                                    TRANSIT DEPARTMENT

AGENDA ACTION:                      RESOLUTION(S)


ISSUE(S)

Should the Council approve a contract award to New Flyer of America, Incorporated, for
seven, 40-foot, low-floor, gasoline hybrid electric buses and authorize the appropriation
of $4,542,600 to Project Number 7789 to fund the procurement?

BACKGROUND

Santa Rosa CityBus, housed in the City’s Transit Department, seeks to procure seven
Gasoline Hybrid Electric Buses (GHEBs) to expand its fleet from 35 to 40 buses and
replace two diesel buses that have exceeded their useful lives and are experiencing
high maintenance costs.

The GHEBs will be powered with a hybrid electric drive unit and fueled with gasoline.
They will, indeed, be in full compliance with the California Air Resources Board (CARB)
emissions standards. In fact, CARB classifies gasoline hybrid technology as an
“alternative fuel” and extremely low-emission; therefore, the City’s total urban bus fleet
emissions will not increase with the additional buses per CARB’s current reporting
standards. Additionally, they will achieve greater fuel economy than a standard diesel
bus and emit fewer emissions as a result.

To procure these buses, staff will be participating in a cooperative purchase by
exercising seven unused options on a contract between the San Diego Metropolitan
Transportation System (MTS) and New Flyer of America, Incorporated (“MTS
Contract”). In doing so, the City is able to benefit from the lower unit cost achieved
through a large, consortium purchase. The cost of each bus is $634,657.10, and the
total, fixed project cost is $4,442,600. Staff also requests a $100,000 contingency for
the purchase of spare parts and for unforeseen circumstances that may develop during
construction. Therefore, the maximum project cost, including the contingency, would be
$4,542,600. (See Attachment 1 for “Project Budget.”) The Point of Sale (POS) shall


10-03-30 New Flyer Bus Purchase.sr.doc
RESOLUTION FOR CONTRACT AWARD TO NEW FLYER OF AMERICA, INC. FOR SEVEN
GASOLINE HYBRID ELECTRIC BUSES THROUGH A COOPERATIVE PURCHASE
Page 2 of 3


occur in the City of Santa Rosa, and this is reflected in the contract with New Flyer.
Delivery of the buses is currently scheduled for December 2010 (See Attachment 3 for
the “Delivery Schedule”), and this purchase will be fully grant funded with Federal, State
and Local grant sources (See Attachment 2 for the “Funding Plan.”)

City Code Section 3.08-160 allows the City to participate in cooperative purchasing
programs maintained by state, county or other public agencies when determined to be
advantageous to the City. Local government agencies are also permitted to use
cooperative purchasing agreements pursuant to California Public Contract Code
Section 10298.

ANALYSIS

    1. By cooperatively purchasing the buses using the MTS Contract with New Flyer of
       America, the City benefits from a lower unit cost per bus that is achieved through
       a competitively-bid, consortium purchase.
    2. Additionally, “piggybacking” on the MTS Contract allows the City to minimize
       administrative costs that would otherwise be much higher, if a full procurement,
       which would have required extensive work with the Federal Transit
       Administration (FTA), was initiated by City staff.
    3. The MTS Contract will allow the City to take delivery of the buses in December
       2010, which is much faster than would otherwise be possible, if the City had
       conducted the procurement on its own.
    4. Delivery of the buses in December 2010, before the start of calendar year 2011,
       is critical for ensuring compliance with CARB emission standards, maintaining
       reliable public transit service, and minimizing operations and maintenance costs
       by replacing aging, diesel buses with new, more fuel-efficient buses that would
       still be under warranty.
    5. This project is fully funded with Federal American Recovery and Reinvestment
       Act (ARRA) funds, FTA Section 5307 funds, Local Measure M funds, and State
       and Local Partnership Program (SLPP) funds made available through the
       passage of Proposition 1B in November 2006. No funds from the City’s General
       Fund will be used to finance this project. (See Attachment 2 for the “Funding
       Plan.”)
    6. The City must obligate the $1,296,114 in Federal ARRA funds, which have been
       awarded to the City for new, gasoline electric hybrid buses, in a Purchase
       Agreement by June 2010 to avoid losing the funds.
    7. The City has existing infrastructure that will support the fleet expansion and
       fueling of these buses at the Municipal Services Center-North (MSCN).
    8. Appropriations for this purchase ($4,542,600) is being requested in fund 0651,
       Project Number 7789.

10-03-30 New Flyer Bus Purchase.sr.doc
RESOLUTION FOR CONTRACT AWARD TO NEW FLYER OF AMERICA, INC. FOR SEVEN
GASOLINE HYBRID ELECTRIC BUSES THROUGH A COOPERATIVE PURCHASE
Page 3 of 3


RECOMMENDATION

This resolution, recommended by the Transit Department, approves a contract award,
authorizes the Director of the Transit Department to execute the Purchase Agreement,
as well as any other relevant, contractual documents, with New Flyer of America,
Incorporated, for the purchase of seven (7) 40-foot, low-floor, gasoline, hybrid electric
buses, and approves an appropriation of $4,542,600 in FY 2010 in Project Number
7789 for the procurement.

Author: Mona A. Babauta

Attachments:
Attachment 1: Project Budget
Attachment 2: Funding Plan
Attachment 3: Delivery Schedule
Attachment 4: PURCHASE AGREEMENT




10-03-30 New Flyer Bus Purchase.sr.doc
                                  ATTACHMENT 1: PROJECT BUDGET
                                                                                               # of Buses: 7
Cost Analysis & Breakdown: 40- foot, Restyled, Low-Floor Gasoline Hybrid Electric Bus

                                                                                      (Per Bus Pricing)        (Per Contract Pricing)
TAXABLE CONTRACT ITEMS:
Base Bus Price (excludes ADA Equipment & Delivery)                                             $542,946.18               $3,800,623.26
                  Sonoma County Sales Tax of 9.25% (Point of Sale: Santa Rosa, CA):             $50,222.52                 $351,557.65
                                                 SUBTOTAL OF TAXABLE ITEMS:                    $593,168.70               $4,152,180.91

NON-TAXABLE CONTRACT ITEMS:
ISE Extended Warranty                                                                           $29,490.75                 $206,435.25
HVAC (Thermo King) Extended Warranty                                                             $1,608.36                  $11,258.52
ISE Training                                                                                       $964.29                   $6,750.00
ADA Equipment & Delivery                                                                         $9,425.00                  $65,975.00
                                            SUBTOTAL OF NON-TAXABLE ITEMS:                      $41,488.40                 $290,418.77

                                                       FIXED CONTRACT COSTS:                   $634,657.10               $4,442,599.69

                                                                                               Contingency:                $100,000.00
                                                                   MAXIMUM ALLOWABLE PROJECT TOTAL:                      $4,542,599.69
ATTACHMENT 2: FUNDING PLAN
CHARGE # 7789: PURCHASE OF SEVEN (7) 40-FOOT GASOLINE HYBRID ELECTRIC BUSES FROM NEW
FLYER OF AMERICA, INC.

        FUNDING SOURCE                    AMOUNT                Fund       Acct                          Notes

FEDERAL ARRA                                   $1,296,114.00    0219       3415    FTA Section 5307 Capital

SECTION 5307                                     $846,485.69    0219       3415    FTA Section 5307 Capital

MEASURE M                                      $1,200,000.00    0651       3143    Sales Tax - Measure M

SLPP*                                          $1,200,000.00    0288       3423    State Transportation Capital

TOTAL PROJECT FUNDING:                         $4,542,599.69


NOTES:

*State and Local Partnership Program (SLPP) funds. Source is a form of Proposition 1B funds (State Bond Funds). 1 TO 1 MATCH
REQUIRED USING MEASURE M ONLY.
ATTACHMENT 3: DELIVERY SCHEDULE

         EXHIBIT D: DELIVERY SCHEDULE

SANTA ROSA CITYBUS DELIVERY SCHEDULE

SEVEN (7) NEW FLYER 40-FOOT, LOW-FLOOR, GASOLINE HYBRID
ELECTRIC BUSES (GHEBs)

                       ACTIVITY                                  DATE

*Begin Construction--First 2 buses                            30-Oct-2010

Begin Construction--3rd & 4th buses                           6-Nov-2010

Begin Construction--5th & 6th buses                          13-Nov-2010

Begin Construction--Seventh/Last Bus                         20-Nov-2010

Complete Construction and On-site Inpsections                27-Nov-2010

**Final Delivery Date for All Buses                           7-Dec-2010


*7 Days alloted for construction and on-site inspections for each bus and
assumes that not more than two buses can be built at a time.
                        AGREEMENT FOR SERVICES
     WITH NEW FLYER OF AMERICA, INCORPORATED FOR SEVEN 40-FOOT GASOLINE
                      HYBRID ELECTRIC, LOW-FLOOR BUSES

                                              Agreement No.


This Agreement is made as of March 30, 2010, between the City of Santa Rosa, a charter city
("CITY"), and New Flyer of America, Incorporated (“CONTRACTOR”).


                                               RECITALS


A.       CITY desires to “piggyback” and exercise seven (7) unused options on an existing
         contract between CONTRACTOR and the San Diego Metropolitan Transportation
         System (MTS), pursuant to MTS’s “Request for Proposal (RFP) For 35’ and 40’ Low
         Floor Transit Buses,” issued May 21, 2007, and referred to as Contract No. G1101.0-07,
         executed on February 29, 2008 (“MTS Contract” incorporated herein by this reference).

B.       CITY desires to retain the CONTRACTOR to build and deliver seven (7) new, forty (40)
         foot, gasoline hybrid electric, low-floor, transit buses through the MTS Contract.

C.       CONTRACTOR represents to CITY that it is fully qualified to provide the above
         described services.

D.       CONTRACTOR represents to CITY that it is in full compliance with the federal
         procurement requirements and has provided all required certifications as dictated by the
         Federal Transit Administration.

E.       The parties have negotiated upon the terms pursuant to which CONTRACTOR will
         provide such services and have herein reduced such terms to writing.


                                              AGREEMENT


NOW, THEREFORE, the CITY and CONTRACTOR do hereby agree as follows:

         1.        SCOPE OF WORK

CONTRACTOR shall build seven (7) new, forty foot, gasoline-hybrid electric, low-floor, transit
buses as specifically described in EXHIBIT A of this Agreement, entitled “Price Change
Detail,” and in accordance with the MTS Contract, incorporated herein as EXHIBIT H. As
specifically stated in Section 2.1.B, the complete MTS Contract consists of the following items:
New Flyer of America_7 Gas Hybrids_2010.doc
                                               ATTACHMENT 4
    a. Contractor’s Best and Final Offer and MTS’s Notice of Award
    b. Standard Procurement Agreement, Standard Conditions Procurement and Federal
       Requirements
    c. Quality Assurance Provisions
    d. Warranty Provisions
    e. Technical Specifications
    f. Addenda – As issued
    g. Contractor’s Proposal including any modifications explicitly incorporated in Contractor’s
       Best and Final Offer

CITY requires that CONTRACTOR comply with all terms of the MTS Contract for purposes of
this AGREEMENT, including, but not limited to those set forth below. Specifically, CITY shall
require CONTRACTOR to provide CITY with all goods, services and entitlements required by
the MTS Contract, unless otherwise agreed upon by CITY and CONTRACTOR through this
AGREEMENT. In case of any conflict between the terms of these documents, the terms of this
AGREEMENT and the “Price Change Detail” shall control and prevail over the MTS
CONTRACT and other exhibits.

CONTRACTOR shall comply with all the terms identified in Section 2, Special Provisions and
Federal Requirements, of the MTS Contract for purposes of meeting the requirements of this
AGREEMENT. However, CITY would like to emphasize CONTRACTOR’s compliance with the
following subsections: 2.9 Specification and Offer Omissions; 2.26 Title; 2.28 Training; 2.29
Bulletins; 2.30 Documents and; 2.31 Parts Availability Guaranty.

CONTRACTOR shall comply with the terms identified in Subsection 2.9, Specification and
Offer Omissions, of Section 2 of the MTS CONTRACT. CONTRACTOR shall have the
responsibility of supplying all parts and details and complying with all local, state and federal
regulations required to make the bus complete and ready for service even when such details
may not be specifically mentioned in the drawings and specifications. Equipment installed by
the CITY shall not be the responsibility of the CONTRACTOR, unless they are included in this
AGREEMENT.

CONTRACTOR shall comply with the terms defined in Subsection 2.26, Title, of Section 2 of
the MTS CONTRACT. Upon acceptance of each bus, the CONTRACTOR warrants that the
title shall pass to the CITY free and clear of all encumbrances. Manufacturer shall deliver the
vehicles to CITY registered and with license exempt plates installed.

CITY requires CONTRACTOR to comply with the terms identified in Subsection 2.28, Training,
in Section 2 of the MTS CONTRACT. CONTRACTOR shall provide Training and Instruction to
CITY by a qualified instructor. CONTRACTOR shall provide direct presentation classes, for
various size groups, to CITY maintenance personnel on the proper operation and maintenance
of equipment. CITY’s Fleet Superintendent or his designee shall approve proposed subjects
and scheduling of the classes conducted by the CONTRACTOR a minimum of ninety (90)
days prior to the delivery of the first vehicle.


New Flyer of America_7 Gas Hybrids_2010.doc   ATTACHMENT 4                          page 2 of 12
CONTRACTOR shall comply with the terms identified in subsection 2.28 A, Training Materials,
in Section 2 of the MTS Contract. All training materials shall be submitted to the CITY’s Fleet
Superintendent.

CONTRACTOR shall comply with the terms identified in subsection 2.28 B, Training
Curriculum, in Section 2 of the MTS Contract and EXHIBIT F. The curriculum shall be
designed specifically for the City of Santa Rosa vehicle order and shall include the following
equipment and class times:

         ISE Hybrid Package                   24 hours, 3 day session, 8 hours/day
         HVAC System                          10 hours, 1 day session
         Standard New Flyer training          60 hours
         Destination OEM Training             1 day session

All training provided by CONTRACTOR shall accommodate at least 8 individuals per training
session. CONTRACTOR shall provide the training specified in this AGREEMENT no later than
6 weeks after the first bus is accepted by the CITY. Should the CITY be charged for training,
CONTRACTOR shall do so on an hourly basis, and CITY shall not pay for unused hours.
Furthermore, CONTRACTOR shall provide two sets of all teaching materials (Instructor’s
Lesson Plan and Student hand-out) presented to CITY staff in hard copy and in electronic
format one (1) week prior to scheduled training, per Section 2.28 A, Training Materials, of
Section 2 of the MTS Contract.

CONTRACTOR shall comply with the terms identified in subsection 2.29, Bulletins, of Section
2 of the MTS Contract. CONTRACTOR shall mail bulletins to the CITY’s Fleet Superintendent
at City of Santa Rosa, Fleet Services, 55 Stony Point Road, Santa Rosa, California, 95401.

CONTRACTOR shall comply with the terms identified in subsection 2.30, Documents, of
Section 2 of the MTS Contract. CONTRACTOR shall provide parts manuals for ordering parts
and standard New Flyer and vendor manuals for all bus components as noted in EXHIBIT G
(Publications) of this AGREEMENT. CONTRACTOR shall further provide one (1) copy of the
electric schematics (as-builts) for the 40-foot gasoline electric hybrid bus delivered to the CITY.

CONTRACTOR shall comply with the terms identified in subsection 2.31, Parts Availability
Guaranty, of Section 2 of the MTS Contract.

CONTRACTOR shall comply with all terms identified in Section 3, Quality Assurance
Provisions, of the MTS Contract.

CONTRACTOR shall comply with all terms identified in Section 4, Warranty Provisions, of the
MTS Contract and as identified in EXHIBIT E of this AGREEMENT. In addition,
CONTRACTOR shall comply with the terms of any extended warranty coverage purchased by
CITY through this AGREEMENT. Warranty coverage provided through this AGREEMENT shall
include all diagnostic and repair activities, labor and travel associated with work and parts
covered by the warranty.


New Flyer of America_7 Gas Hybrids_2010.doc   ATTACHMENT 4                           page 3 of 12
CONTRACTOR shall comply with all terms identified in Section 6, Scope of Work – 40’ Low
Floor CNG Bus Technical Specifications, of Section 2 of the MTS Contract, as they relate to
the seven (7) 40’ Low Floor Gasoline Hybrid Electric Buses to be purchased by CITY through
this AGREEMENT. In the event of any conflict between the terms of the MTS Contract and the
“Price Change Detail”, the latter shall prevail.

CONTRACTOR shall provide the tools identified in Exhibit B of this AGREEMENT.

2.       ENTIRE AGREEMENT: This Agreement consists of the following documents, in order
         of precedence, all which as hereby referenced are incorporated herein and made part of
         this Agreement, and shall be the entire agreement between parties:

         a. This Agreement

         b. Attachment One – Insurance Requirements

         c. Exhibit A – Price Change Detail

         d. Exhibit B – Spares and Tooling List

         e. Exhibit C – Contract Pricing

         f. Exhibit D – Delivery Schedule

         g. Exhibit E – Warranty Provisions (Standard & Extended)

         h. Exhibit F – Training Details

         i.   Exhibit G -- Publications

         j.   Exhibit H – MTS Contract

In the event of a conflict with the terms outlined in the MTS Contract, this AGREEMENT and
the above referenced Exhibits, in order of precedence, shall prevail.

For purposes of clarification CONTRACTOR shall take note of the following as it relates to this
AGREEMENT and its Exhibits:

The “San Diego Metropolitan Transportation System (MTS)” shall be the “City of Santa Rosa.”

“MTS” shall be the “The CITY.”

The “Procurement Department” shall be the City’s “Transit Department.”

The “Director of the Transit Department” shall be the “Contract Officer” and “Chief Executive
Officer” as authorized by the City of Santa Rosa City Council upon contract award.


New Flyer of America_7 Gas Hybrids_2010.doc   ATTACHMENT 4                        page 4 of 12
“MTS General Counsel” shall be the “City Attorney.”

3.       TERM OF AGREEMENT

CONTRACTOR shall begin work immediately upon receipt of a Notice to Proceed (NTP) from
CITY, following approval of this AGREEMENT by the Santa Rosa City Council.
CONTRACTOR shall thereupon work diligently per the “Delivery Schedule” outlined in
EXHIBIT D of this AGREEMENT and continuously to provide all the required services and
activities described herein. CONTRACTOR shall deliver the seven (7) new, forty (40) foot,
gasoline-hybrid electric, low-floor, transit buses no later than December 7, 2010 (“Delivery
Date”). The parties recognize that time is of the essence in this Agreement.

CONTRACTOR shall comply with the terms outlined in Subsection 2.14 (Bus Delivery
Procedure) in Section 2 of the MTS Contract when delivering the buses to the CITY with the
following exceptions: Subsection 2.15 (Delivery Schedule), which shall be in accordance with
the delivery schedule identified in EXHIBIT D, and the location of delivery, which shall instead
be:
                                    Transit Operations Building
                         45 Stony Point Road, Santa Rosa, CA 95401

4.       COMPENSATION

         a. As compensation for all services of CONTRACTOR in performance of this
            Agreement, CITY shall pay CONTRACTOR as described in EXHIBIT C.

         b. Total maximum compensation to be paid hereunder for the satisfactory
            accomplishment and completion of all tasks set forth above shall not exceed Six
            Hundred Thirty-Four Thousand, Six Hundred Fifty-Seven dollars and ten cents
            ($634,657.10) per bus, or a “Fixed Project Cost” of Four million, Four Hundred Forty-
            Two Thousand, Five Hundred Ninety-Nine dollars and sixty-nine cents
            ($4,442,599.69) for building and delivering seven buses per EXHIBIT A (Price
            Change Detail), EXHIBIT C (Pricing) and the MTS Contract, unless officially agreed
            upon otherwise by both the CONTRACTOR and the CITY in writing. The City
            Director of Finance is authorized to pay all proper claims from Charge Number 7789.

         c. Only in the case of change orders initiated by the City in writing and accepted by the
            CONTRACTOR in writing, shall compensation to the CONTRACTOR exceed the
            fixed cost of $634,657.10 per bus as specified in this AGREEMENT. Both the
            CONTRACTOR and CITY shall endeavor to reach a mutual agreement on any
            compensation that exceeds this amount, per the terms outlined in Subsection 2.3,
            Written Change Orders, of Section 2 of the MTS Contract.

         d. Approximately 2% of the fixed project cost, or a total amount of $100,000, shall be
            available for change orders beyond the Fixed Project Cost of $4,442,599.69 for


New Flyer of America_7 Gas Hybrids_2010.doc   ATTACHMENT 4                          page 5 of 12
              building and delivering the seven (7) buses, as well as for spare parts and
              equipment critical for properly maintaining the buses per warranty and other legal
              requirements. Including the 2% contingency, the maximum charge to Santa Rosa
              under this Agreement shall not exceed $4,542,599.69.

5.       PAYMENT TO THE CONTRACTOR

As compensation for all services of CONTRACTOR in performance of this AGREEMENT,
CITY shall pay CONTRACTOR in accordance with the terms outlined in Subsection 2.27,
Payment, of Section 2 of the MTS CONTRACT. Furthermore, CONTRACTOR agrees that the
Point of Sale (POS) for all transactions shall occur in the City of Santa Rosa, which is located
in Sonoma County, California. Payments to CONTRACTOR shall be based on the current tax
rate in the City of Santa Rosa at the time of each transaction.

6.       NOTICES

Except as otherwise specifically provided in this AGREEMENT, any notice, submittal or
communication required or permitted to be served on a party hereto, may be served by
personal delivery or electronic mail to the person or the office of the person identified below.
Service may also be made by mail, by placing first-class postage affixed thereto, and
addressed as indicated below, and depositing said envelope in the United States mail to:

                        CITY:                                     CONTRACTOR:
                  Robert Dunlavey                                    Paul Smith
                 City of Santa Rosa                           Executive Vice President
                 Transit Department                             Sales and Marketing
            100 Santa Rosa Ave. Room 6                    New Flyer of America, Incorporated
               Santa Rosa, CA 95404                            711 Kernaghan Avenue
                   (707) 543-3325                              Winnipeg, MB R2C 3T4
               RDunlavey@srcity.org                            Phone: (204) 224-1251
                                                                Fax: (204) 224-0248
                                                             Paul_Smith@newflyer.com

Telephone calls may be used to expedite communications but shall not be official
communication unless confirmed in writing.

7.       MODIFICATION

This AGREEMENT shall not be modified, except in writing, by contract amendment, executed
by all parties. Oral change orders are not permitted. No change in this Agreement shall be
made unless the City of Santa Rosa gives its prior written approval. Any specification change
not properly ordered by written modification to this Agreement executed by CITY shall be void
at the sole option of the CITY and CONTRACTOR shall be liable for all costs or expenses
arising therefrom and/or for satisfactorily correcting or replacing same.

CONTRACTOR shall further comply with Subsections 2.2, Contractor Changes; 2.3 Written

New Flyer of America_7 Gas Hybrids_2010.doc   ATTACHMENT 4                           page 6 of 12
Change Orders; 2.4 Change Order Procedure, and; 2.5 Price Adjustment for Regulatory
Changes, of Section 2 of the MTS CONTRACT.

8.       TERMINATION OF CONTRACT FOR DEFAULT

The CONTRACTOR shall comply with the terms set forth in Subsection 2.11, Termination for
Default, of Section 2 of the MTS CONTRACT.

9.       TERMINATION FOR CONVENIENCE

The CONTRACTOR shall comply with the terms set forth in Subsection 2.10, Termination for
Convenience, of Section 2 of the MTS CONTRACT.

10.      DISPUTES

The CONTRACTOR shall comply with the terms set forth in Subsection 2.12, Disputes, of
Section 2 of the MTS CONTRACT.

11.      ASSIGNMENT AND SUBCONTRACTING

The CONTRACTOR shall not assign or subcontract the work, or any part thereof, without the
previous written consent of the CITY, nor shall it assign, by power of attorney or otherwise, any
of the money payable under this AGREEMENT unless written consent of the CITY has been
obtained. No right under this AGREEMENT, or claim for money due or to become due
hereunder, shall be asserted against the CITY, or persons acting for the CITY, by reason of
any so-called assignment of this AGREEMENT or any part thereof and CONTRACTOR hereby
agrees to indemnify and hold CITY harmless against any and all such claims. In the event
CONTRACTOR obtains the prior written consent of the CITY to assign monies due or to
become due under this AGREEMENT, CONTRACTOR shall provide CITY a copy of the
instrument of assignment duly executed by CONTRACTOR, which shall contain a clause
subordinating the claim of the assignee to all prior liens for services rendered or materials
supplied for the performance of work.

Upon notice and request by the CITY, CONTRACTOR shall promptly remedy, to include
termination of any subcontract as appropriate and necessary, any default or fail to perform in a
satisfactory manner the work undertaken by any subcontractor. CONTRACTOR shall be fully
responsible and accountable to the CITY for the acts and omissions of its subcontractors, and
of persons directly or indirectly employed by them, to the same extent that CONTRACTOR is
for the acts and omissions of persons directly employed by CONTRACTOR. Nothing
contained in this AGREEMENT shall create any contractual relation between any subcontract
and the CITY.

CONTRACTOR shall not, without the consent of the CITY, either:

         1)        Substitute any person as subcontractor in place of the subcontractor designated
                   in CONTRACTOR’s Proposal;

New Flyer of America_7 Gas Hybrids_2010.doc   ATTACHMENT 4                            page 7 of 12
         2)        Permit any subcontract to be voluntarily assigned or transferred or allow the work
                   to be performed by anyone other than the original subcontractor listed in
                   CONTRACTOR’s Proposal; or

         3)        Sublet or subcontract any portion of the work in excess of one-half of one percent
                   (.5%) of the total proposal as to which the CONTRACTOR’s Proposal did not
                   designate a subcontractor.

CONTRACTOR shall require and ensure that their subcontractors comply with the terms
identified in Subsection 2.39, Policies for All Tiers, of Section 2 of the MTS CONTRACT.

12.      INDEMNIFY AND HOLD HARMLESS AGREEMENT

The CONTRACTOR shall comply with the terms set forth in Subsection 2.37, Indemnity, of
Section 2 of the MTS CONTRACT.

13.      INSURANCE REQUIREMENTS

The CONTRACTOR shall maintain in full force and effect all of the insurance coverage
described in, and in accordance with, Attachment One, “Insurance Requirements”, which is
attached hereto and hereby incorporated and made part of this AGREEMENT by this
reference. Maintenance of the insurance coverage as set forth in Attachment One is a
material element of this AGREEMENT and a material part of the consideration provided by
CONTRACTOR in exchange for the CITY’s agreement to make the payments prescribed
hereunder. Failure by CONTRACTOR to (i) maintain or renew coverage, (ii) provide the CITY
notice of any changes, modifications, or reductions in coverage, or (iii) provide evidence of
renewal, may be treated by the CITY as a material breach of this AGREEMENT by
CONTRACTOR, whereas the CITY shall be entitled to all rights and remedies at law or in
equity, including but not limited to immediate termination of this AGREEMENT.
Notwithstanding the foregoing, any failure by CONTRACTOR to maintain required insurance
coverage shall not excuse or alleviate CONTRACTOR from any of its other duties or
obligations under this AGREEMENT. In the event CONTRACTOR, with approval of the CITY
pursuant to Section 10 above, retains or utilizes any subcontractors or sub-consultants in the
provision of any services to the CITY under this AGREEMENT, CONTRACTOR shall assure
that any such subcontractor has first obtained, and shall maintain, all of the insurance
coverage requirements set forth in the Insurance Requirements at Attachment One. The terms
of this section shall override any insurance requirements specified in the MTS Contract.

14.      INDEPENDENT CONTRACTOR

The parties intend that CONTRACTOR, in performing services herein specified, shall act as an
independent contractor and shall have control of its work and the manner in which it is
performed. It shall be free to contract for similar services to be performed for other employers
while it is under contract with CITY. CONTRACTOR is not to be considered an agent or
employee of CITY and is not entitled to participate in any pension plan, medical, or dental
plans, or any other benefit provided by CITY for its employees.


New Flyer of America_7 Gas Hybrids_2009.doc   ATTACHMENT 4                             page 8 of 12
15.      SUCCESSORS AND ASSIGNS

CITY and CONTRACTOR each binds itself, its partners, successors, legal representatives and
assigns to the other party to this Agreement and to the partners, successors, legal
representatives and assigns of such other party in respect of all promises and agreements
contained herein.

16.      LEGAL REQUIREMENTS AND PERMITS

CONTRACTOR shall perform all services described herein in compliance with all applicable
federal, state and local laws, rules, regulations, and ordinances, including but not limited to, (i)
the Americans With Disabilities Act (ADA) of 1990, (42 U.S.C. 12101, et seq.), and any
regulations and guidelines issued pursuant to the ADA, which prohibits discrimination against
individuals with disabilities and may require reasonable accommodations; and (ii) and Labor
Code Sections 1700-1775, which require prevailing wages (in accordance with DIR schedule
at www.dir.ca.gov) be paid to any employee performing work covered by Labor Code Section
1720 et seq. It shall be the sole obligation hereunder of CONTRACTOR to obtain any and all
licenses, permits and/or clearances necessary and appropriate for performance of the work.

CONTRACTOR shall further comply with the terms identified in Subsections 2.39, Policies for
All Tiers, 2.42, Incorporation of Federal Transit Administration (FTA) Terms, and all contractual
terms required by local, state and federal law included in Section 2 of the MTS CONTRACT,
and provide to the CITY all applicable certification documents for demonstrating compliance
with the terms prior to the CITY’s acceptance of the last delivered bus. CITY shall withhold
final payment to CONTRACTOR until all documents and certificates, required by this
AGREEMENT, are received by the CITY.

In addition, CONTRACTOR shall comply with Title XV, Subtitle A, Section 1553(e) of the
American Recovery and Reinvestment Act of 2009 (ARRA), which requires that
CONTRACTOR, as a recipient of ARRA funds from the CITY for the seven (7) gasoline hybrid
electric buses, post a notice of rights and remedies available to whistleblowers.

17.      RETENTION OF RECORDS

CONTRACTOR shall be required to retain any records necessary to document the charges for
goods to be provided or services to be performed and make such records available to the
CITY for inspection at the CITY's request for a period of not less than four (4) years from the
date of project close-out. Furthermore, CONTRACTOR shall comply with the terms outlined in
Subsections 2.34, Audit and Inspection of Records, and 2.36, Production of Documents, of
Section 2, of the MTS CONTRACT.

CONTRACTOR shall further comply with the access to records provisions of CFR 215.53 or 40
CFR 31.42, as well as with the specific provisions of section 1515 of the American Recovery
and Reinvestment Act of 2009 (ARRA), which states that any appropriate representative of the
Office of Inspector General can (1) examine any records that pertain to, and involve
transactions relating to, the procurement contract and relevant subcontracts; and (2) interview
any officer or employee of the CONTRACTOR or relevant subcontractors regarding such
transactions.

New Flyer of America_7 Gas Hybrids_2009.doc   ATTACHMENT 4                            page 9 of 12
18.      COLLECTION AND REPORTING OF INFORMATION

CONTRACTOR shall comply with all reporting requirements of Sections 1512 and 1201c of
ARRA, collect all applicable information specified in said sections, and provide such
information in electronic format (Microsoft Excel format) and hardcopy as required by the CITY
prior to the delivery of the last bus, inclusive, but not exclusive of the following:
    1) CONTRACTOR DUNS number or their name and zip code of their headquarters, if no
        DUNS number is available.
    2) Job titles or categories (i.e. manufacturing, painting, electronics, etc.) created or
        sustained as a result of the bus purchase (funded with ARRA funding) within the United
        States or outlying areas per 74 FR 14824 of ARRA.
    3) Number of direct job hours created or retained as a result of the bus purchase (funded
        with ARRA funding) within the United States or outlying areas, broken out by job title
        and/or job category.
    4) Number of direct jobs created or retained as a result of the bus purchase (funded with
        ARRA funding) within the United States or outlying areas, and as expressed as “full-
        time equivalents” (FTE), which is calculated as total hours worked in jobs created or
        retained, divided by the number of hours in a full-time schedule (Vendor can assume
        2080 hours in a FTE work year, unless the definition of full-time schedule differs greatly
        within a shorter time period). This information shall be broken out by job title and/or job
        category.
    5) Total payroll of job hours created or sustained, including benefits, as a result of the bus
        purchase (funded with ARRA funding) within the United States or outlying areas. Payroll
        includes full cost of wages for hours directly associated with this contract. This
        information shall be broken out by job title and/or job category.
CITY reserves the right to require that CONTRACTOR submit additional information and
reports as required by the Federal government and/or other agencies, for meeting funding
requirements. Satisfactory compliance with CITY requests for information shall be required of
CONTRACTOR, and CONTRACTOR shall recognize that time is of essence in the submission
of all CITY required information and reports as the funding for the bus purchase is tied to
timely and satisfactory compliance with grant requirements such as those dictated by ARRA.

19.      LEGALITY

If any provisions of this AGREEMENT shall be held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.

20.      CALIFORNIA LAW; VENUE

This Agreement shall be governed according to the laws of the State of California. Because
this Agreement is to be performed in the County of Sonoma, the parties hereto agree that the
forum for the adjudication of any dispute regarding the AGREEMENT or enforcement shall be
brought exclusively and solely in Sonoma County, California, and CONTRACTOR agrees to
submit itself to the jurisdiction of the State of California.

New Flyer of America_7 Gas Hybrids_2009.doc   ATTACHMENT 4                           page 10 of 12
21.      BINDING PARTIES

The CITY and CONTRACTOR each binds itself, its partners, successors, legal representatives
and assigns to the other party to this AGREEMENT and to the partners, successors, legal
representatives and assigns of such other parties respect of all promises and Agreements
contained herein.

22.      WAIVER

A waiver of a breach or default under this AGREEMENT shall not be a waiver of any other or
subsequent default.

23. AUTHORITY; SIGNATURES REQUIRED FOR CORPORATIONS

CONTRACTOR hereby represents and warrants to the CITY that it is (a) is a duly organized
and validly existing corporation, formed and in good standing under the laws of the State of
California, (b) has the power and authority and the legal right to conduct the business in which
it is currently engaged, and (c) has all requisite power and authority and the legal right to
consummate the transactions contemplated in this AGREEMENT. CONTRACTOR hereby
further represents and warrants that this AGREEMENT has been duly authorized, and when
executed by the signatory or signatories listed below, shall constitute a valid agreement
binding on CONTRACTOR in accordance with the terms hereof.

If this AGREEMENT is entered into by a corporation, it shall be signed by two corporate
officers, one from each of the following two groups: a) the chairman of the board, president or
any vice-president; b) the secretary, any assistant secretary, chief financial officer, or any
assistant treasurer. The title of the corporate officer shall be listed under the signature.

The City of Santa Rosa and the New Flyer of America Corporation have each caused this
AGREEMENT to be executed by their duly authorized officers as of the day and year first
above written.




New Flyer of America_7 Gas Hybrids_2009.doc   ATTACHMENT 4                         page 11 of 12
                   CITY OF SANTA ROSA                        New Flyer of America,
                       A Charter City                           Incorporated


                                                     By
         By
                                Mayor                Name

                                                     Title

         Attest:
                      Assistant City Clerk           By

                                                     Name
         APPROVED AS TO FORM:
                                                     Title


                                                     Taxpayer ID#
                           City Attorney




New Flyer of America_7 Gas Hybrids_2009.doc   ATTACHMENT 4                           page 12 of 12

								
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