Loading...
HomeMy Public PortalAboutORD15752BILL NO. 2017-95 SPONSORED BY Councilman Henry ORDINANCE NO. 1,i 2 5/)-. AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A CONTRACT WITH HOUCK TRANSIT ADVERTISING. BE IT ENACTED BY THE COUNCIL OF THE CITY OF JEFFERSON, MISSOURI, AS FOLLOWS: Section 1. The Mayor and City Clerk are hereby authorized and directed to execute a contract with Houck Transit Advertising. Section 2. The agreement shall be substantially the same in form and content as the contract attached hereto as Exhibit A. Section 3. This Ordinance shall be in full force and effect from and after the date of its passage and approval. Passed: 1-2-2-0110 Presiding -Officer ATTER-r;_ AM 46 City CI k Approved: I -- 3 --moo I R k v v -e . (Ijl- "� Mayor Carrie Tergin APPROVED AS TO FORM: City ou elor CITY OF JEFFERSON TRANSIT ADVERTISING AGREEMENT THIS CONTRACT, made and entered into the date last executed by a party as indicated below, by and between Houck Transit Advertising, hereinafter called AContractor@, and the City of Jefferson, Missouri, a municipal corporation, hereinafter called ACity.@ WITNESSETH: That Whereas, Contractor has become the lowest responsible bidder for soliciting, selling, and displaying advertising on the interior and exterior of buses operated by the City. NOW THEREFORE, the parties to this contract agree to the following: 1. Definitions. As used in this agreement the following terms shall have the following meanings: a. Advertising - The removable panel and the words, pictures and symbols visible to the public which are on the sign panel. b. Billing - The total of all payments that the Contractor requests from clients in a calendar month. c. Bus - A standard transit coach for transporting passengers that is either in use or standing by as a spare on a daily basis. d. Client - The person or company paying the Contractor to install advertising. e. Eliminate buses - Selling a bus or assigning a bus to a contingency status in long-term storage. 2. Scope of Services. Contractor agrees to perform the services related to soliciting, selling, and displaying advertising on the interior and exterior of buses operated by the City. 3. Contract Period. The duration of this Contract shall be for three (3) years beginning on January 1, 2018, unless otherwise terminated under the provisions of this contract, and continue until December 31, 2020. This contract may be renewed for two additional one (1) year terms by mutual agreement. Renewal shall occur automatically each year unless one party notifies the other of its intent not to renew at least thirty (30) days before the expiration of the agreement. 4. Grant of Exclusive Right to Advertise. The City hereby grants to the Contractor the exclusive right and privilege to solicit, sell, and display advertising on the interior and exterior of buses operated by the City. The Contractor shall operate to maximize the revenue generated from such advertising. 5. Obligations of the Contractor: a. The Contractor shall provide this service in accordance with the scope of services. b. Advertising displayed under the terms of this contract shall be of a reputable character, shall conform to recognized business standards and shall not conflict with the laws or regulations of the United States, State of Missouri or political subdivision thereof having jurisdiction over the City. The City shall have the right to require the removal of any advertising that brings disrepute upon the City, and the Contractor shall remove such advertising immediately or within a reasonable time frame. c. All advertising shall be provided, installed, changed, repaired and removed at the sole expense of the Contractor, except when it is removed by the City for purposes of repairing or cleaning the bus and frames. d. In consideration of the rights and privileges granted under this contract, the Contractor shall pay to the City each month an amount equal to the percentage payment or the guaranteed payment, whichever is greater, as follows: i. Guaranteed Payment Per Year (paid monthly) During Contract: $7,000.00 in the first 12 month period $7,000.00 in the second 12 month period $7,000.00 in the third 12 month period $7,000.00 in the fourth 12 month period $7,000.00 in the fifth 12 month period ii. Percentage Payment During Contract 50% of billing in the first 12 month period 50% of billing in the second 12 month period 50% of billing in the third 12 month period 50% of billing in the fourth 12 month period 50% of billing in the fifth 12 month period iii. In all cases, the percentage payment will be based upon the monthly billing by the Contractor and not upon monthly receipts. Contractor bears responsibility for all uncollectible billing, except in the case of legally filed bankruptcies. e. The Contractor shall furnish to the City each month a copy of the client billing, and at the same time remit to the City the guaranteed payment or the percentage payment for that month, whichever is greater. f. Contractor shall be knowledgeable of and shall comply with all applicable local, state and federal laws and regulations. g. Contractor shall be solely responsible for the payroll, insurance coverage, benefits, personnel administration, and supervision of all personnel hired by the Contractor to provide the services required by this contract. h. Throughout the duration of this contract, the Contractor shall obtain and maintain, at the Contractor’s sole cost and expense, commercial general liability insurance with a reputable, qualified, and financially sound company licensed to do business in the State of Missouri, and unless otherwise approved by the City, with a rating by Best of not less than “A”: i. $500,000 per occurrence ii. $3,000,000 per year i. The Contractor shall provide the City with certificates of insurance upon request evidencing the insurance coverage required and shall not perform any services under this contract until such insurance is secured. j. In the event of occurrences that are beyond the control of the Contractor or the City, such as a labor strike, act of war, act of terrorism, natural disaster, or factors that negatively affect the state of the economy, the Contractor shall be able to pro-rate, re-negotiate or cancel this contract with 30 day notice. 6. Obligations of the City. a. The City agrees to provide, install, and maintain all advertising frames on all buses now owned or hereafter acquired. The City shall insure that the frames are in proper repair at all times. All such frames shall be and remain the sole property of the City. b. The City shall assume the expense of removing, storing and replacing all advertising for the purpose of repairing or cleaning the buses and frames. The City shall use reasonable care to protect the advertising and shall exercise due diligence in preventing others from disturbing the same. c. The City shall, at no charge, so far as practical and convenient to the City, make available to Contractor storage and work area for use in connection with its operation hereunder. The Contractor shall keep the work area clean and neat. 7. Rights Of The City and Contractor. a. This contract applies to 22 buses. The City reserves the right to add or eliminate buses from its fleet without permission from the Contractor. In the event of such addition or elimination of buses from the fleet, the City shall notify Contractor 30 days in advance in order for the Contractor to accommodate any client notifications and/or billing modifications, and the guaranteed and percentage payments by the Contractor shall be appropriately adjusted. b. The City hereby grants the right to duly authorized and properly identified representatives of Contractor to enter upon City property, during normal business hours, for the purpose of operating under this contract. c. Contractor agrees to permit any accredited representative of the City at any time during normal and usual business hours, and from time to time, to inspect and examine the books and records of Contractor. d. Trades of advertising for merchandise or other concessions may not be made during the term of this contract without the consent of both parties e. Contractor may set rates to be charged for advertising, and terms and conditions, and manner of payment by clients. Current rate schedules to be charged advertisers shall be available to City at any time upon request. f. Contractor agrees that the City may use at no charge any empty advertising frames which are available from time to time for the purpose of promoting the City’s transit business and in such event, the City shall furnish Contractor such advertising signs at City’s expense. g. While Contractor proposes to exercise every reasonable business effort to install advertising sold at the maximum rate in every frame, it is recognized by the parties hereto that Contractor may not at all times during the period of this contract be able to reach the maximum, and Contractor shall have the right to install public, educational, and charitable advertising as Contractor shall deem proper at a reduced rate. Contractor may also use any vacant sign space to advertise for clients at no charge. 8. Contractor's Responsibility for Subcontractors. Contractor shall be as fully responsible to the City for the acts and omissions of its subcontractors, and of persons either directly or indirectly employed by them, as Contractor is for the acts and omissions of persons it directly employs. Contractor shall cause appropriate provisions to be inserted in all subcontracts relating to this work, to bind all subcontractors to Contractor by all the terms herein set forth, insofar as applicable to the work of subcontractors and to give Contractor the same power regarding termination of any subcontract as the City may exercise over Contractor under any provisions of this contract. Nothing contained in this contract shall create any contractual relations between any subcontractor and the City or between any subcontractors. 9. Termination. Either party has the right to terminate this contract at any time on 30 days written notice in the event that the other party has failed to comply fully with the terms and conditions contained herein. 10. Indemnity. To the fullest extent permitted by law, the Contractor will indemnify and hold harmless the City, its elected and appointed officials, employees, and agents from and against any and all claims, damages, losses, and expenses including attorneys' fees arising out of or resulting from the performance of the work, provided that any such claim, damage, loss or expense (1) is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting therefrom and (2) is caused in whole or in part by any negligent act or omission of contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this Paragraph. 11. Severability. If any section, subsection, sentence, or clause of this Contract shall be adjudged illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect the legality, validity, or enforceability of the contract as a whole, or of any section, subsection, sentence, clause, or attachment not so adjudged. 12. Governing Law. The contract shall be governed by the laws of the State of Missouri. The courts of the State of Missouri shall have jurisdiction over any dispute which arises under this contract, and each of the parties shall submit and hereby consents to such courts exercise of jurisdiction. In any successful action by the City to enforce this contract, the City shall be entitled to recover its attorney's fees and expenses incurred in such action. 13. Nondiscrimination. Contractor agrees in the performance of this contract not to discriminate on the ground or because of race, creed, color, national origin or ancestry, sex, religion, handicap, age, or political opinion or affiliation, against any employee of Contractor or applicant for employment and shall include a similar provision in all subcontracts let or awarded hereunder. 14. Severability. If any section, subsection, sentence, or clause of this Contract shall be adjudged illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect the legality, validity, or enforceability of the contract as a whole, or of an y section, subsection, sentence, clause, or attachment not so adjudged. 15. Governing Law. The contract shall be governed by the laws of the State of Missouri. The courts of the State of Missouri shall have jurisdiction over any dispute which arises under this contract, and each of the parties shall submit and hereby consents to such courts exercise of jurisdiction. In any successful action by the City to enforce this contract, the City shall be entitled to recover its attorney's fees and expenses incurred in such action. 16. Complete Understanding, Merger. Parties agree that this document including those documents represent the full and complete understanding of the parties. This contact includes only those goods and services specifically set out. This contract supersedes all prior contracts and understandings between the Contractor and the City. 17. Amendments. This contract may not be modified, changed or altered by any oral promise or statement by whomsoever made; nor shall any modification of it be binding upon the City until such written modification shall have been approved in writing by an authorized officer of the City. Contractor acknowledges that the City may not be responsible for paying for changes or modifications that were not properly authorized. 18. Waiver of Breach. Failure to Exercise Rights and Waiver: Failure to insist upon strict compliance with any of the terms covenants or conditions herein shall not be deemed a waiver of any such terms, covenants or conditions, nor shall any failure at one or more times be deemed a waiver or relinquishment at any other time or times by any right under the terms, covenants or conditions herein. 19. Assignment. Neither party may sell or assign its rights or responsibilities under the terms of this agreement without the express consent of the remaining party. 20. Nondiscrimination. Contractor agrees in the performance of this contract not to discriminate on the ground or because of race, creed, color, national origin or ancestry, sex, religion, handicap, age, or political opinion or affiliation, against any employee of Contractor or applicant for employment and shall include a similar provision in all subcontracts let or awarded hereunder. 21. Illegal Immigration. Prior to commencement of the work: a. Contractor shall, by sworn affidavit and provision of documentation, affirm its enrollment and participation in a federal work authorization program with respect to the employees working in connection with the contracted services. b. Contractor shall sign an affidavit affirming that it does not knowingly employ any person who is an unauthorized alien in connection with the contracted services. c. If Contractor is a sole proprietorship, partnership, or limited partnership, Contractor shall provide proof of citizenship or lawful presence of the owner prior to issuance of the Notice to Proceed. 21. Federal Clauses. The Contractor agrees to abide by federal clauses, hereinafter described in Exhibit A. 22. Notices. All notices required to be in writing may be given by first class mail addressed to the Purchasing Agent, City of Jefferson, 320 East McCarty, Jefferson City, Missouri, 65 10 1, and Houck Transit Advertising, 1025 Tomlyn Avenue Suite 100, Shoreview, Minnesota, 55126. The date of delivery of any notice shall be the second full day after the day of its mailing. CITY OF JEFFERSON, MISSOURI 1 Mayor Date: ATTEST: City - ferk f APPROVED AS TO FORM: City C selor HOUCK TRANSIT ADVERTISING Title: Date: 1--%L— F6 ►:1100039 Title: pru�eC� MOLYIK 9tr Exhibit A FEDERAL FUNDING The City of Jefferson is a recipient of Federal funds; therefore, the following requirements shall be fully considered in preparing proposals and performing work under any resulting agreement. 1. No Obligation by the Federal Government. (1) The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. (2) The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. 2. Program Fraud and False or Fraudulent Statements or Related Acts. (1) 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 pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. (2) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate. (3) The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. 3. Access to Records and Reports The following access to records requirements apply to this Contract: Exhibit A 1. Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C. F. R. 18.36(1), the Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. 2. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 CFR. 633.17, Contractor agrees to provide the Purchaser, the FTA Administrator or his authorized representatives, including any PMO Contractor, access to the Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. By definition, a major capital project excludes contracts of less than the simplified acquisition threshold currently set at $100,000. 3. Where the Purchaser enters into a negotiated contract for other than a small purchase or under the simplified acquisition threshold and is an institution of higher education, a hospital or other non-profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 19.48, Contractor agrees to provide the Purchaser, FTA Administrator, the Comptroller General of the United States or any of their duly authorized representatives with access to any books, documents, papers and record of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. 4. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 U.S.C. 5325(a) enters into a contract for a capital project or improvement (defined at 49 U.S.C. 5302(a)1) through other than competitive bidding, the Contractor shall make available records related to the contract to the Purchaser, the Secretary of Transportation and the Comptroller General or any authorized officer or employee of any of them for the purposes of conducting an audit and inspection. 5. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. 6. The Contractor agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(1)(11). 7. FTA does not require the inclusion of these requirements in subcontracts. Exhibit A 4. Federal Changes The 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(15) dated October, 2008) between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract. 5. Civil Rights The following requirements apply to the underlying contract: (1) 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. (2) Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: (a) 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 CFR Parts 60 et seq., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (b) 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. Exhibit A (c) 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 CFR Part 1630, pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (3) The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. 6. Termination of Contract a. Termination for Convenience (General Provision) The City of Jefferson may terminate this contract, in whole or in part, at any time by written notice to the Contractor when it is in the Government's best interest. The Contractor shall be paid its costs, including contract close-out costs, and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to the City of Jefferson to be paid the Contractor. If the Contractor has any property in its possession belonging to the City of Jefferson, the Contractor will account for the same, and dispose of it in the manner the City of Jefferson directs. b. Termination for Default [Breach or Cause] (General Provision) If the Contractor does not deliver supplies in accordance with the contract delivery schedule, or, if the contract is for services, the Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, the City of Jefferson may terminate this contract for default. Termination shall be effected by serving a notice of termination on the contractor setting forth the manner in which the Contractor is in default. The contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract. If it is later determined by the City of Jefferson that the Contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the control of the Contractor, the City of Jefferson , after setting up a new delivery of performance schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience. c. Opportunity to Cure (General Provision) The City of Jefferson in its sole discretion may, in the case of a termination for breach or default, allow the Contractor [an appropriately short period of time] in which to cure the defect. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions. If Contractor fails to remedy to the City of Jefferson's satisfaction the breach or default of any of the terms, covenants, or conditions of this Contract within [ten (10) days] after receipt by Contractor of written notice from the City of Jefferson setting forth the nature of said breach or default, the City of Jefferson shall have the right to terminate the Contract without any further obligation to Contractor. Exhibit A Any such termination for default shall not in any way operate to preclude the City of Jefferson from also pursuing all available remedies against Contractor and its sureties for said breach or default. d. Waiver of Remedies for any Breach In the event that the City of Jefferson elects to waive its remedies for any breach by Contractor of any covenant, term or condition of this Contract, such waiver by the City of Jefferson shall not limit the City of Jefferson's remedies for any succeeding breach of that or of any other term, covenant, or condition of this Contract. e. Termination for Convenience (Professional or Transit Service Contracts) The City of Jefferson, by written notice, may terminate this contract, in whole or in part, when it is in the Government's interest. If this contract is terminated, the Recipient shall be liable only for payment under the payment provisions of this contract for services rendered before the effective date of termination. f. Termination for Default (Supplies and Service) If the Contractor fails to deliver supplies or to perform the services within the time specified in this contract or any extension or if the Contractor fails to comply with any other provisions of this contract, the City of Jefferson may terminate this contract for default. The City of Jefferson shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default. The Contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner or performance set forth in this contract. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Recipient. J. Termination for Convenience of Default (Cost -Type Contracts) The City of Jefferson may terminate this contract, or any portion of it, by serving a notice of termination on the Contractor. The notice shall state whether the termination is for convenience of the City of Jefferson or for the default of the Contractor. If the termination is for default, the notice shall state the manner in which the contractor has failed to perform the requirements of the contract. The Contractor shall account for any property in its possession paid for from funds received from the City of Jefferson, or property supplied to the Contractor by the City of Jefferson. If the termination is for default, the City of Jefferson may fix the fee, if the contract provides for a fee, to be paid the contractor in proportion to the value, if any, of work performed up to the time of termination. The Contractor shall promptly submit its termination claim to the City of Jefferson and the parties shall negotiate the termination settlement to be paid the Contractor. If the termination is for the convenience of the City of Jefferson, the Contractor shall be paid its contract close-out costs, and a fee, if the contract provided for payment of a fee, in proportion to the work performed up to the time of termination. If, after serving a notice of termination for default, the City of Jefferson determines that the Contractor has an excusable reason for not performing, such as strike, fire, flood, events which are not the fault of and are beyond the control of the contractor, the City of Jefferson , after setting up a new work Exhibit A schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience. 7. Debarment and Suspension (non -procurement) This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is required to verify that none of the contractor, its principals, as defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29.945. The contractor is required to comply with 49 CFR 29, Subpart C and must include the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into. By signing and submitting its bid or proposal, the bidder or proposer certifies as follows: The certification in this clause is a material representation of fact relied upon by the City of Jefferson. It if is later determined that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to the City of Jefferson, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 49 CFR 29, Subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. 8. Breaches and Dispute Resolution Disputes - Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of the City of Jefferson. This decision shall be final and conclusive unless within [ten (10)] days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the City of Jefferson. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the City of Jefferson shall be binding upon the Contractor and the Contractor shall abide be the decision. Performance During Dispute - Unless otherwise directed by the City of Jefferson, Contractor shall continue performance under this Contract while matters in dispute are being resolved. Claims for Damages - Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of his employees, agents or others for whose acts he Is legally liable, a claim for damages therefore shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage. Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other matters In question between the City of Jefferson and the Contractor arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of competent jurisdiction within the State in which the City of Jefferson is located. Rights and Remedies - The duties and obligations imposed by the Contract Documents and the rights and remedies available there under shall be in addition to and not a limitation of any duties, obligations, Exhibit A rights and remedies otherwise imposed or available by law. No action or failure to act by the City of Jefferson or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach there under, except as may be specifically agreed in writing. 9. Clean Air (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act as amended, 42 U.S.C. §§ 7401 et seq. The contractor agrees to report each violation to the purchaser and understands and agrees that the purchaser will, in turn report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 10. Energy Conservation Requirements The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. 11. Incorporation of FTA Terms Provisions include, in part, certain Standard Terms and Conditions required by USDOT, whether or not expressly set forth herein. All contractual provisions required by USDOT, as set forth in FTA Circular 4220.1F are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in the Agreement. The contractor shall not perform any act, fail to perform any act, or refuse to comply with any City of Jefferson requests which would cause City of Jefferson or the Missouri Department of Transportation to be in violation of the FTA terms and conditions.