NEW YORK CITY TRANSIT AUTHORITY
CONTRACT NO. 00D7815B
ACCESS-A-RIDE PARATRANSIT TRANSPORTATION SERVICE
TABLE OF CONTENTS
IMPORTANT NOTICE TO ALL CONTRACTORS AND CONSULTANTS
SPECIFIC CONTRACT PROVISIONS
GENERAL CONTRACT PROVISIONS (SCP)
CONTRACT TERMS AND CONDITIONS
AGREEMENT made this 4th day of October, 2001 between the NEW YORK CITY TRANSIT AUTHORITY (hereinafter the “Authority” or “NYCT”), with offices at 370 Jay Street, Brooklyn, NY 11201 and ATLANTIC PARATRANS, INC., with offices 7 North Street, Staten Island, NY 10302.
W I T N E S S E T H:
WHEREAS, the Authority desires to retain a Contractor to provide Paratransit service in accordance with the Federal Americans with Disabilities Act of 1990 (ADA) for the five boroughs of the City of New York and known as Access-A-Ride;
WHEREAS, the Contractor represents that it possesses the necessary knowledge and experience to perform the work and services herein described; and
WHEREAS, the Authority desires to retain the Contractor on the terms and conditions set forth in this Agreement and the Contractor has agreed to accept such terms and conditions including compensation based upon the rates set forth in the Price Schedule designated herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, the parties hereto do hereby agree as follows:
NEW YORK CITY TRANSIT AUTHORITY
CONTRACT NO. 00D7815B
ACCESS-A-RIDE PARATRANSIT TRANSPORTATION SERVICE
SPECIFIC CONTRACT PROVISIONS
ARTICLE 101 DEFINITIONS
The following terms used in this Contract shall, except where, by the context, it is clear that another meaning is intended, be construed as follows:
1. “Access-A-Ride” or “AAR” shall mean New York City Transit Authority paratransit service.
2. “Accident” shall mean an event causing property damage in excess of $1,000 or any personal injury that occurs during the carrier’s operation of any Revenue or Non-Revenue Vehicles in AAR service.
3. “Accident Damage” shall mean any property damage caused as a result of an Accident.
4. “Addenda” or “Addendum” shall mean the additional Contract provisions relating to the Contract issued in writing by the Authority prior to the Award Date.
5. “Add-On Trips” or “Trip Insertions” shall mean trips not included in the daily Manifest that are dispatched real-time to the Vehicle Operator.
6. “Americans with Disabilities Act of 1990” or “ADA” shall mean the Federal civil rights legislation requiring, among other things, that paratransit service comparable to fixed route service be provided to persons with disabilities who meet ADA paratransit eligibility criteria.
7. “Assistive Device” shall mean devices used by physically disabled persons for mobility and/or communication, such as canes, walkers, oxygen equipment, etc.
8. “Authority” or “NYCT” (or the initials “T.A.” or “NYCTA” or “NYCT”) shall mean the New York City Transit Authority, a public benefit corporation existing by virtue of the Public Authorities Law, Title 9 of Article 5, and any other authority, board, body, commission, official or officials to which or to whom the powers now belonging to the said Authority with respect to the location, construction, equipment, maintenance and operation of transit facilities shall by virtue of any act or acts hereinafter passed or be held to appertain.
9. “Automatic Vehicle Location and Monitoring System” (or “AVLM”) shall mean a computerized system that utilizes a global positioning system with mobile data terminals to produce two-way wireless data communication concerning the speed and directional movement of subject vehicle(s) via dynamic, graphic display screen at remote dispatch/control location(s).
10. “Borough” shall mean one of the five (5) political jurisdictions (counties) comprising the City of New York. They are the Bronx, Brooklyn, Manhattan, Queens, and Staten Island.
11. “Brochure Rack” shall mean pamphlet racks installed in paratransit vehicles where customers may pick up brochures, fliers and pamphlets issued by NYCT.
12. “Carrier” shall mean an operator of the Access-A-Ride service; also referred to as the Contractor.
13. “City” shall mean the City of New York.
14. “Command Center,” a/k/a “Paratransit Command Center” shall mean a New York City Transit Authority site for operating Access-A-Ride reservations, scheduling and customer assistance functions.
15. “Contract,” “Contract Documents” or “Agreement” shall mean the Attachments, Appendix, Contractor’s Proposal, Contract Testimonium, General Contract Provisions, Information For Proposers, Specific Contract Provisions, Schedules deemed included (if any), Technical Specifications (if any), Scope of Work, Forms of Bonds (if any), Contract Drawings (if Any), all Addenda hereafter issued (if any), and the Notice of Award.
16. “Contract Manager” shall mean the NYCT employee assigned to serve as the liaison to the Contractor for purposes of contract administration and daily operations.
17. “Contractor” shall mean the Proposer to whom this Contract is awarded, its successors and assignees and is also referred to as the Carrier. For convenience, the Contractor may be hereinafter referred to as if the Contractor were an individual. The word “he” shall, as the sense may require include “she,” “it” and “they”; the word “him” shall include “her,” “it” and “them”; and the word “his” shall include “her,” “its” and “their”.
18. “Contractor Early” shall mean the Vehicle Operator arrives more than 5 minutes before the Scheduled Pick-Up Time.
19. “Contractor No-Show,” a/k/a “Missed Trip” shall mean any trip not performed, other than a Customer “Late Trip Cancellation,” “Customer No-Show” or “No-Fault No-Show.”
20. “Customer” shall mean an individual with disabilities who NYCT has determined meets ADA paratransit eligibility criteria and has been issued an AAR identification card, also known as Access-A-Ride or AAR registrant.
21. “Customer Assistance Division” shall mean a division of NYCT, which provides customer information and complaint management.
22. “Customer No-Show” shall mean the Customer has not presented him/herself, declines the trip or is unable for any reason to take the trip when the Vehicle Operator has arrived and waited for the Customer in accordance with the Contract standards and procedures.
23. “DMV” shall mean the New York State Department of Motor Vehicles.
24. “Depot” shall mean the Carrier’s operation facility.
25. “Directed,” “required,” “permitted,” “ordered,” “designated,” “selected,” “prescribed,” or words of like import used in the specifications or upon the drawings (if any) shall mean, respectively, the direction, requirement, permission, order, designation, selection or prescription of the Project Manager; and similarly the words “approved,” “approved manner,” “approval,” “acceptable,” “satisfactory,” “equal,” “necessary,” or words of like import shall mean, respectively, approved by, or acceptable or satisfactory to, or equal, or necessary in the opinion of the Project Manager.
26. “Dispatcher” shall mean the individual responsible for directing, monitoring and communicating with Vehicle Operators and coordinating with the Command Center.
27. “Dispatch Log” shall mean the Dispatcher’s daily record of service and vehicle information.
28. “Disputes Resolution Officer” or “DRO” shall mean the individual designated by the Authority to resolve contract disputes between the parties.
29. “En-route Relief ” shall mean a change in Vehicle Operators in the field during a Revenue Service Tour.
30. “Federal” or words of like import shall mean the United States of America.
31. “FTA” shall mean the Federal Transit Administration of USDOT, and is the federal agency that, inter alia, promulgates and enforces drug and alcohol testing program regulations for public transportation providers, including their contractors, pursuant to the Federal Omnibus Transportation Employee Testing Act of 1991. The regulations are set forth at 49 C.F.R. Parts 653 and 654. FTA also promulgates and enforces regulations implementing the Americans with Disabilities Act of 1990, including regulations applicable to the provision of paratransit services. These regulations are set forth at 49 C.F.R. Part 37, Subpart F.
32. “Guest” shall mean any person accompanying an AAR Customer other than the Personal Care Attendant.
33. “Holiday” shall mean New Year’s Day, Martin Luther King Day, President’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
34. “Incident” shall mean an event impacting the quality or timeliness of the service that occurs during the carrier’s operation of any Revenue or Non-Revenue Vehicles in AAR service that does not cause property damage in excess of $1,000 or personal injury.
35. “Large Vans” shall mean vehicles having ten (10) seats (excluding the driver), three (3) wheelchair securement positions and a dual rear axle.
36. “Late Pick-Up” shall mean any AAR pick-up that occurs past the Scheduled Pick-Up Window.
37. “Late Trip Cancellation” shall mean Customer cancellation after 5:00 p.m. the night before a scheduled trip.
38. “Law” shall mean the Constitution and laws of the United States and of the State of New York, the New York City Charter, the New York City Administrative Code, and each and every other law, rule, regulation, requirement, order, judgment, decree, or ordinance of every kind whatsoever issued by any government entity, applicable to or affecting the Contract, the Work and all persons engaged in the Work (including any of the foregoing which concern health, safety, environmental protection, and non-discrimination).
39. “Legal Proceeding” shall mean every action, litigation, arbitration, administrative proceeding, and other legal or equitable proceeding of any kind whatsoever.
40. “Liens” shall mean any and every lien of any kind whatsoever against the Work, against any monies due or to become due from the Authority to Contractor, and/or against any other property of the Authority, for or on account of the Work, including any Public Lien.
41. “Manifest” shall mean the schedule provided to a Vehicle Operator listing all stops and time points during a vehicle tour or route.
42. “MTA” shall mean the Metropolitan Transportation Authority and any other board, body, commission, official or officials to which or to whom the powers now belonging to the said Authority under the provisions of Article 5, Title 11 of the Public Authorities Law of the State of New York shall, by virtue of any act or acts, hereafter passed or be held to appertain.
43. “New York State” or “NYS” shall mean the State of New York.
44. “NYS DOT” shall mean the New York State Department of Transportation.
45. “No-Fault No-Show” shall mean the Contractor fails to provide the scheduled trip to a Customer for documented reasons beyond the control of the Contractor, as determined by the Project Manager. For example, Fire/Police EMS activity, water main breaks, closing of a major bridge/tunnel, extremely adverse weather conditions, unusually heavy traffic conditions, and reservation errors may be grounds for considering the Contractor’s failure to provide a scheduled trip to be a No-Fault No-Show. Conversely, vehicle breakdowns or instances when a Vehicle Operator is unable to find a particular location are not considered to be occurrences that are beyond the Contractor’s ability to control.
46. “Non-Revenue Vehicles” shall mean vehicles used by the Contractor to perform Contract requirements other than customer transportation; it may include vehicles used for supervisory and maintenance functions.
47. “Notice” or “notice” shall mean a written notice.
48. “Notice of Award” shall mean a document that apprises the Contractor that this Contract has been approved by the NYCTA.
49. “Office Equipment” shall mean standard office furnishings and equipment such as telephones, computers, fax machines and supplies used by the Contractor to perform the Contract.
50. “On-Time Performance” shall mean a measure of service reliability based on the percentage of completed trips in which the Contractor has picked up a Customer within the Scheduled Pick-Up Window.
51. “ Paratransit Automated Scheduling System” or “PASS” shall mean the automated reservation, scheduling and dispatch software system, presently used by NYCTA to provide centralized AAR trip reservation and scheduling at the Command Center.
52. “Paratransit Division” shall mean the NYCTA Division responsible for administration and operation of Access-a-Ride.
53. “Passenger” shall mean all persons other than the ADA eligible Customer who are authorized to travel with the Customer, such as, Personal Care Attendants or Guests.
54. “Preventive Maintenance” shall mean maintenance Types A, B and C described in Attachment 12 of this Contract.
55. “Personal Care Attendant” or “PCA” shall mean a person who is authorized or required by the NYCT to accompany the Customer for the purpose of providing travel and other assistance to the Customer.
56. “Pigtail” shall mean a long cord used in the remote control operation of a wheelchair lift in a lift vehicle.
57. “Post-Trip Revenue Vehicle Inspection” shall mean the inspection of a Revenue Vehicle immediately following completion of the Revenue Service Tour.
58. “Pre-Trip Revenue Vehicle Inspection” shall mean inspection of a Revenue Vehicle immediately preceding the Revenue Service Tour.
59. “Project Manager” shall mean an individual designated as such by the Authority to administer this Contract or his duly authorized representative.
60. “Pull-In” shall mean the return of a Revenue Vehicle to the assigned Depot upon completion of a Revenue Service Tour.
61. “Pull-Out” shall mean the Revenue Vehicle’s departure from the assigned Depot to perform a Revenue Service Tour.
62. “Pull-Out/Pull-In Logs” shall mean Dispatcher records of vehicle Pull-Outs and Pull-Ins.
63. “Pull-Out Ready Line” shall mean the Revenue Vehicles available for Revenue Service Pull-Out.
64. “Revenue Service” shall mean any period of time the Vehicle Operator is performing the Customer transportation services required under this Contract, including authorized deadheading time from Pull-Out to first Customer pick-up and from last Customer drop-off to Pull-In, and any contractually agreed upon lunch interval.
65. “Revenue Service Tour” shall mean the period of time from authorized Pull-Out to authorized Pull-In.
66. “Revenue Service Start Date” shall mean the date on which the Contractor places its first vehicle into Revenue Service.”
67. “Revenue Vehicles” shall mean the vehicles used by the Contractor to perform the Customer transportation services required under this Contract.
68. “Routed Service” or “Service Route” or “Route” shall mean Revenue Service performed according to the time schedule and order of pick-ups and drop-offs listed in the Manifest.
69. “Scheduled Pick-Up Time” shall mean the confirmed pick-up time as agreed upon by the Customer and the Command Center and that appears on the Manifest.
70. “Scheduled Pick-Up Window” shall mean the period from five minutes before to twenty-five minutes after the Scheduled Pick-Up Time.
71. “Service Hour” or “Vehicle Service Hour” shall mean each hour of a Revenue Service Tour.
72. “Service Ready” shall mean that the vehicle is clean, mechanically safe and reliable, and all accessories are operable.
73. “Small Van” shall mean vehicles having five (5) seats (excluding the driver), two (2) wheelchair securement positions and a single rear axle.
74. “State” — See “New York State.”
75. “Subcontractor” shall mean an individual or organization who enters into a contract to furnish labor services only or labor and materials or apparatus in connection with the Work directly or indirectly for or on behalf of the Contractor and whether or not in privity of contract with the Contractor.
76. “Supplier” shall mean an individual or organization that furnishes materials, equipment or supplies to the Contractor either directly or indirectly, for incorporation in the Work.
77. “Trip Confirmation Ticket” or “Trip Ticket” shall mean a document that includes the date of the trip, pick-up and destination locations, beginning and ending odometer readings, and the Trip Identification Number.
78. “Trip Identification Number” shall mean the individual number generated and assigned by PASS to a scheduled trip.
79. “USDOT” shall mean the United States Department of Transportation.
80. “Vehicle Operator” shall mean the Contractor’s driver of a Revenue Vehicle.
81. “Work” or “Project” shall be defined as all the required obligations of the Contractor hereunder, including but not limited to, the performance of any labor or services, the supplying of any goods or materials, the furnishing or repair and/or remanufacture of any equipment or any other resources or requirements or deliverables necessary to perform, construct, accomplish and complete this Contract’s objectives as stated in Article 102 below.
ARTICLE 102 PROJECT DESCRIPTION
A. The Work to be performed may be briefly described as the provision of demand-responsive, origin-to-destination, shared-ride transportation services for people with disabilities who are Access-A-Ride registrants within the five boroughs of the City of New York, as mandated by the Americans with Disabilities Act, and furnishing all resources necessary to provide such services in accordance with the service criteria specified in the Scope of Work, Attachment 1, and all other terms and conditions of the Contract.
B. The New York City Transit Authority hereby retains the Contractor, and the Contractor hereby agrees to perform the Work as more particularly described in Article 104 below and in the Scope of Work, Attachment No. 1.
ARTICLE 103 TERM OF AGREEMENT
This Agreement shall become effective upon the date of the Notice of Award and shall continue in effect for a period of five (5) years from the date of commencement of AAR service hereunder (described in the Scope of Work, Section 4, as “Phase II, Operations”), and as such term may be extended by the Authority in accordance with Article 124 below.
ARTICLE 104 STANDARDS OF PERFORMANCE
A. The requirements set forth in this Article are material provisions of the Contract and a breach thereof may result in the assessment of liquidated damages as set forth in Article 111 or in the Authority availing itself of any other remedy existing herein, including termination, or any such remedy as may exist in law or equity.
B. The Contractor shall complete all scheduled trips except in the event of a Late Cancellation by a Customer or a Customer No-Show, or unless otherwise authorized by NYCT. The Contractor shall provide timely service and promptly respond to Customer complaints.
C. The Contractor shall be responsible for service quality, Revenue Vehicle and Vehicle Operator availability, and coordination of all services furnished under this Contract. The Contractor is responsible to perform safe, reliable and on-time transportation service in a customer-friendly manner as such performance is defined by this Contract and shall adhere to the following minimum standards:
1. Contractor No-Shows
a. Contractor No-Shows are prohibited except when due to circumstances beyond the control of the Contractor (No-Fault No-Show), as determined by the Project Manager.
b. NYCT reserves the right to declare a Contractor No-Show or No-Fault No-Show, as applicable, for a pick-up(s) where, based upon the circumstances, NYCT determines that the Contractor will be unable to appear at the designated location within forty-five minutes after the Scheduled Pick-Up Time.
c. In addition to any other remedies provided elsewhere in this Contract, Contractor shall reimburse the Authority for the actual cost of any reasonable expense incurred by the Customer or NYCT to perform the trip independently of the Contractor. Such reimbursement will apply when the Customer has called NYCT and NYCT either dispatches another service provider to perform the trip, or authorizes the Customer to use a taxi or livery for the trip.
2. On-Time Performance
The Contractor shall arrive for a Customer pick-up within the Scheduled Pick-Up Window for 95% of all of the Contractor’s scheduled trips. NYCT reserves the right to shorten or change the Scheduled Pick-Up Window upon notice to the Contractor.
3. Revenue Vehicle Availability
The Contractor shall assure the availability of safe, fully operational, clean, temperature-controlled Revenue Vehicles in the numbers required to service each route assigned to the Contractor on each service day. To meet this performance standard, the Contractor shall perform all of the requirements as set forth in the Scope of Work, Attachment No. 1, Section 7, and take all other reasonable and necessary actions to meet the Revenue Vehicle availability standard as set forth herein. In the event that Contractor does not meet this performance standard because of a failure to meet the vehicle maintenance requirements of the Scope of Work, in addition to any other remedies provided elsewhere in this Contract, the Authority shall have the right to perform the maintenance, and charge the Contractor for the costs thereof.
4. Vehicle Operator Availability
a. The Contractor shall assure that there are sufficient numbers of Vehicle Operators available to service each Route assigned to the Contractor on each service day. To meet this performance standard, the Contractor shall implement the qualification and training requirements for Vehicle Operators set forth in the Scope of Work, Attachment No. 1, Section 9, prior to placement of Vehicle Operators in Revenue Service; and the Contractor shall timely hire and train individuals in sufficient numbers to meet the Vehicle Operator availability standard set forth herein. In the event that NYCT determines that a Vehicle Operator in Revenue Service does not meet the qualifications or has not completed the
required training, the Project Manager may direct that the Vehicle Operator be removed from service until such time as the NYCT is satisfied that the requirements of the Contract have been met.
b. The Contractor shall observe each Vehicle Operator to ensure that he is fit for duty before his vehicle Pull-Out, and monitor each Vehicle Operator’s continued fitness throughout the Revenue Service Tour.
c. The Contractor shall implement a program for retraining and/or disciplining Vehicle Operators who fail to perform their duties in accordance with Contract requirements.
d. The Contractor shall not assign a Vehicle Operator to operate an AAR Revenue Vehicle after notification by NYCT to the Contractor that the Vehicle Operator is to be removed pursuant to a removal determination as set forth in the Scope of Work, Attachment I, Section 8.20.
5. Safe Conduct :
The Contractor shall implement a safety program in accordance with the requirements of this Contract to prevent conduct or actions by Vehicle Operators or other field staff which creates a safety hazard to Customers or the public at large.
6. Use of Vehicles :
The Contractor shall use AAR vehicles solely for the purpose described in the Scope of Work, Attachment No. 1, or otherwise authorized in writing by NYCT. Any unauthorized use is prohibited.
7. Record Keeping :
The Contractor shall accurately keep, complete, and/or submit trip reconciliation data, invoices and all other paperwork as required by and within the time periods set forth in the Scope of Work, Attachment No. 1.
D. Performance Incentives :
1. In any month in which the Contractor exceeds 95% On-Time Performance, Contractor will be paid an incentive payment of ten cents per completed trip for all completed trips for the month.
2. In any month in which the Contractor’s No-Shows are less than 0.2% of all trips assigned to the Contractor, Contractor will be paid an incentive payment of ten cents per completed trip for all completed trips for the month.
3. A Contractor is eligible for the incentive payments set forth herein only upon approval by the Authority of an incentive-sharing plan whereby at least half of the incentive payments received by the Contractor is shared with Vehicle Operators, dispatchers and/or maintenance personnel whose performance assisted the Contractor in earning the incentive.
E. Force Majeure:
A Contractor’s failure to meet the standards of performance set forth in this Article 104 may be excused when the failure is caused by forces beyond the control of the Contractor, as determined by the Project Manager. On a service-day basis with respect to the performance of routes assigned to the Contractor, the Authority has established a set of “mitigation codes” which the Contractor is authorized to use, as applicable, in its performance of Trip Reconciliation as described in the Scope of Work, Attachment No. 1, Section 3.5.
F. Annual Performance Review and Rating/ Default:
Two months before the expiration of each Contract Year, NYCT shall provide Contractor with a Performance Review and Rating for that Contract Year. The form of review and the rating system shall be provided to the Contractor prior to commencement of the Operations Phase of the Contract. Contractor shall have an opportunity to comment upon the review before it becomes final. If Contractor’s final performance rating is not satisfactory, NYCT may determine that the Contractor is in default of the Contract and may proceed to enforce the Contract remedies for default. In addition to remedies set forth in Article 208 of the General Provisions (“Remedies in the Event of Default and Termination for Cause”), NYCT may determine to reduce the service to be provided by the Contractor by transferring Routes to another contractor and reducing the Contract Price accordingly.
ARTICLE 105 DELIVERY OF WORK PRODUCTS AND MATERIALS
Upon request of the Authority, the Contractor shall deliver forthwith to the Authority any Work products produced and all data, studies, reports, material, specifications, plans, charts, photographs, exhibits prepared, developed or kept in connection with, or as part of this project, and all their material and records of whatsoever nature prepared, developed or kept in connection with, or as part of, this project (“Work Products”). Without the necessity of any demand by the Authority, Contractor shall deliver to the Authority, prior to the expiration or upon the earlier termination of this Agreement, all Work Products, which shall become the property of the Authority. This Article does not apply to any records or documents pertaining to the operation of Contractor’s business. The Contractor may retain copies of those records or documents, which it considers necessary for proof of performance.
ARTICLE 106 SUSPENSION OF PERFORMANCE
The Authority may at any time, and without cause, direct the Contractor to stop Work under this Contract for a period of time. Such direction shall be given by notice in writing, which shall specify the period during which Work shall be stopped. The Contractor shall resume Work upon the date specified in such direction, or upon such other date as the Authority may thereafter specify in writing. The period during which Work shall have been stopped may be deemed added to the contract term at the sole discretion of the Authority. Stoppage of Work under this Article shall not give rise to any claim against the Authority.
ARTICLE 107 PERMITS
A. The Contractor, at its own expense, shall apply for, request, process and obtain all permits and approvals that may be required for, or in connection with the Work pursuant to Federal, State and City regulations.
B. The Contractor is required to comply with Article 19-A of the New York State Vehicle and Traffic Law and the DMV’s 19-A implementing regulations, published at 15 NYCRR Part 6.
C. Prior to commencing Revenue Service hereunder, the Contractor must have obtained a NYS DOT contract carrier operating authority permit and ensure that each Revenue Service Vehicle has been inspected by NYS DOT and issued proper license plates by DMV.
ARTICLE 108 PRICE TO INCLUDE/INVOICES AND PAYMENT S
A. Price to Include : The Authority shall pay and the Contractor shall accept the amounts set forth in the Price Schedule, Attachment No. 2, as full compensation for all costs and expenses of completing the Work in accordance with the Contract, including, but not limited to, all labor and material required to be done or furnished under this Contract; all overhead, expenses, fees and profits including the cost of providing storage yard or facilities; all risks and obligations set forth in the Contract; any applicable fees or taxes; and all expenses due to any unforeseen difficulty encountered in the prosecution of the Work (collectively referred to as “the Contract Price”).
B. Payments : Subject to the Contractor’s compliance with the submission requirements contained hereunder and all other provisions of the Contract Documents, payment will be made at the rates specified in the Price Proposal, Attachment 2, as follows:
1. Fixed Costs:
a. Commencing in the first full month after the Revenue Service Start Date, on a monthly basis, the Authority shall pay the following “Fixed Costs:”
(i) One-twelfth (1/12) of the Total Annual Non-Vehicle Fixed Cost amount stated in the Price Schedule, Line Item 3.
(ii) One-twelfth (1/12) of the Annual Per-Vehicle Fixed Costs rate specified in the Price Schedule, Line Item 4, for each Revenue Vehicle in the Contractor’s fleet on the last day of the billing month.
b. Effective on the first month of Year 2 of commencement of AAR service (as described in the Scope of Work, Attachment 1, Section 4, as “Phase II, Operations”), Fixed Costs shall be adjusted annually in accordance with Table 10 of the Consumer Price Index for All Urban Consumers (CPI-U) using the selected local area of New York – Northern NJ – Long Island, NY-NJ-CT-PA. It is the Contractor’s obligation to submit for the first month in which an adjustment is available an invoice in an amount that accurately reflects the
adjustment, if any, that is due. Absent such invoice, it shall be within the Authority’s discretion whether to adjust Fixed Costs for that Contract Year.
c. The Contractor may shift funds as necessary among items in the Fixed Costs category to meet operational needs, so long as the services required hereunder are in no way diminished and Contractor can justify the action upon request by the Authority or upon audit. This paragraph shall not be construed to permit the Contractor to exceed the total annual allowable Fixed Costs.
d. NYCT may adjust the Fixed Costs if it is determined that the Contractor has not provided the services related thereto.
2. Variable Costs
The Authority shall pay the Contractor each month a varying amount calculated at the rates specified in the Price Schedule for “Per-Vehicle Mobilization Costs,” if any, “Maintenance Costs,” and “Vehicle Service Hour Costs,” including fuel costs collectively referred to as “Variable Costs.”
a. The Authority shall pay the Contractor the one-time “Per-Vehicle Mobilization Costs,” Price Schedule, Line Item 2, D, for each Revenue Vehicle, if any, that the Authority assigns to the Contractor during the billing month. Contractors with vehicles in Revenue Service pursuant to prior contracts are not eligible for this payment to the extent that this Contract assigns them the same number or fewer vehicles. These Contractors are eligible for this payment thereafter, if they are assigned additional vehicles for Revenue Service expansion.
b. The Authority shall pay the Contractor each month 1/12 of the Maintenance Costs, Price Schedule, Line Item 5 or 6, as applicable, based upon the actual number, type and age of Revenue Vehicles in the Contractor’s fleet on the last day of the billing month. Once each year, effective the first of the month after the Contractor’s anniversary of its Revenue Service Start Date, the Authority will adjust the age category (i.e. A, B, or C) of all Revenue Vehicles in the Contractor’s fleet, based on the mileage and age of each vehicle at the time of adjustment.
c. The Authority shall pay the Contractor each month for the actual number of Vehicle Service Hours as reconciled by the Contractor and approved by the Authority at the rate specified in the Price Schedule. The Authority will not approve payment for any time included in the Vehicle Service Hours which is either: (i) in excess of 15 minutes more than the authorized deadheading from Pull-Out to the first actual Customer pickup, or (ii) in excess of fifteen minutes more than the authorized deadheading from the last actual Customer drop-off to Pull-In.
d. The Authority shall pay the Contractor each month a varying amount for fuel used in Revenue Service which shall be equal to the product of the total number of Vehicle Service Hours performed (as determined for payments
pursuant to Article 108.B.2.c, above) (“VSH”) times 1.5 gallons per Vehicle Service Hour times the Contractor’s Fuel Price Per Gallon, Price Schedule Line Item 8, as adjusted pursuant to Article 108.B.2.f (“Contractor’s Fuel Price, or “CFP”) (VSH x 1.5 x CFP).
e. The Variable Costs shall be adjusted annually in accordance with the same terms and conditions for adjustment set forth in Article l08.B.l.b, above, for Fixed Costs except for Fuel Costs, which shall be adjusted in accordance with the terms and conditions for adjustment set forth in Article 108.B.2.f, below.
f. The price per gallon for fuel used in Revenue Service shall be adjusted quarterly on a calendar quarter basis, as follows:
i. The index to be used to calculate the change in the Contractor’s Fuel Price (“CFP”) (whether diesel or gasoline) for each quarterly adjustment is the average per-gallon diesel price reported by the U.S. Department of Energy Information Administration’s “Retail On-Highway Diesel Prices for the Central Atlantic Area” (“Fuel Price Index” or “FPI”) for the last Monday immediately preceding each Adjustment Date.
ii. An initial adjustment to the Contractor’s Fuel Price Per Gallon (CFP), as set forth in the Price Schedule, Line Item 8, will be made for the period from the time of award of this Contract to the Revenue Service Start Date, based on any change in price that occurred between the FPI price on January 1, 2001 of $1.665 (“Base Fuel Price Index Amount,” or “BFPI”) and the first day of the first month of the calendar quarter in which the Revenue Service Start Date occurs. Thereafter, the CFP will be adjusted quarterly effective on the first date of the first month of each calendar quarter (“Adjustment Date”). For each Adjustment Date, including the Revenue Service Start Date Adjustment, the price to be utilized to determine the amount of change in price will be that reported by the FPI for the last Monday of the month preceding the Adjustment Date (“Adjustment Date Fuel Price Amount” or “AFPI”).
iii. All prices used to calculate the amount of adjustment will be rounded to the third decimal place.
iv. The Adjusted Contractor’s Fuel Price (“ACFP”) shall be equal to the product of the Adjustment Date Fuel Price Index Amount (“AFPI”) divided by the Base Fuel Price Index Amount (“BFPI”) of $1.665 times the Contractor’s Fuel Price ([AFPI/BFPI] X CFP = ACFP). Thereafter, the most recent ACFP shall be the Contractor’s Fuel Price (“CFP”) for calculating quarterly adjustments.
g. The Authority, in its sole discretion, may, at the commencement of the Contract or at any time thereafter, purchase tax exempt fuel for the Work. In such event, the Contract will be modified to eliminate fuel costs from the Contract Price.
3. Reimbursable Costs (Pass-Through Costs):
The Authority shall reimburse the Contractor for its actual costs and expenses as follows:
a. Insurance Costs
i. No more frequently than once monthly, the Authority will pay the actual insurance premium costs paid by the Contractor for the contractually required automobile liability insurance including comprehensive collision insurance or Garage Keepers Legal Liability Insurance, as applicable. Additionally, the Authority will pay actual premium costs for all required and permitted automobile insurance coverage, as well as premium financing costs, if the Project Manager expressly authorizes the Contractor to finance any or all premium costs. The total annual payment for all such costs shall not exceed the amount stated in the Price Schedule for auto insurance reimbursable costs for each Revenue Vehicle. No reimbursement shall be made to the Contractor for any item that has not been approved by the Authority prior to the Contractor having entered into a legal commitment for the expenditure. In the event that the Contractor’s fleet is reduced, rebates on premiums and financing charges, if applicable, shall be obtained by the Contractor and refunded to NYCT.
ii. On an annual basis the scheduled reimbursable amount will be adjusted by the Authority to reflect the Contractor’s actual insurance premium costs for the upcoming insurance coverage year. However, in no event shall the adjusted scheduled reimbursable amount be greater than $12,000 in the first year of the contract, $13,200 in the second year, $14,520 in the third year, $15,970 in the fourth year, $17,570 in the fifth year, $19,326 (or the corresponding pro-rated amount) in the first option year in the event the Authority exercises its option pursuant to Article 124 of the contract and $21,258 (or the corresponding pro-rated amount) in the second option year in the event the Authority exercises its option pursuant to Article 124. Each year, upon the Contractor’s receipt of any renewal notice for insurance coverage to be paid as a reimbursable cost by the Authority, the Contractor shall submit a copy of such notice and all requested documentation to the Authority including policy declaration pages, premium notices and/or invoices from the Contractor’s insurance company itemizing the premiums and corresponding insurance coverage to be provided.
iii. The Authority, in its sole discretion, may, at the commencement of the Contract or at any time thereafter, purchase vehicle insurance for the Work. In such event, the Contract will be modified to eliminate such insurance costs from the Contract Price.
b. Tolls .
On a monthly basis, the Authority shall reimburse the Contractor’s actual expenses for tolls “ paid for operation of Revenue Vehicles in the course of providing Revenue Service.
c. Third Party Lease Costs . On a monthly basis, the Authority shall reimburse the Contractor’s approved monthly vehicle leasing costs for any Revenue Vehicle or Non-Revenue Vehicle leased from a third party.
d. Non-Vehicle Mobilization Costs . The Authority shall pay the Contractor’s “Non-Vehicle Mobilisation” costs upon submission of an invoice and adequate documentation to confirm that the Contractor has incurred such costs. In no event shall the Contractor be paid for any amount expended that is in excess of the total amount specified in the Price
Schedule, Line Item 1, “Non-Vehicle Mobilization” costs. The Contractor shall allocate its expenditures for mobilization costs in accordance with its Authority-approved Start-Up Plan and in a manner to assure that sufficient monies are available to pay all mobilization costs. The Authority’s Project Manager may question and reject any mobilization cost if it appears that the expenditure will adversely affect the Contractor’s ability to effect mobilization.
4. Date of Payment:
All monthly payments to the Contractor will be made net 30 calendar days of receipt by NYCT of a complete and proper invoice.
5. The Contractor warrants that the costs set forth in the Price Schedule are in current U.S. dollars and do not include any allowance for any contingency to cover anticipated increased cost of performance, which are covered by the economic adjustment clauses contained in subparagraphs B.1.b. and B.2.b. above. These provisions shall be the sole and exclusive measure of adjustment to the costs specified in the Price Schedule of this Contract without regard to actual changes in the cost or use of labor or materials since the Notice of Award of this Contract.
C. Proper Invoice :
1. In order to allow appropriate time to complete the reconciliation process, the Contractor shall not submit my invoice prior to 15 calendar days after the end of each month that constitutes the billing period. In addition to any other requirement set forth in this Contract with respect to what constitutes a proper invoice or for the Contractor to be entitled to receive payment, the Contractor’s invoice, in triplicate, must set forth (1) a description, with specificity, of the goods delivered, Work performed, services rendered, or other event initiating entitlement to payment pursuant to the terms of this Contract; (2) that portion of the Contract price related to such payment less any deductions such as retainage required pursuant to the terms hereof (if any); and (3) the Contract number. Should the invoice not be calculated correctly, such as not taking into account retainage as a deduction, the Authority may either reject the invoice or treat the invoice as proper only to the extent of the correct calculation of the amount thereof.
2. NYCT will return incomplete or improper invoices to the Contractor. In the event that an invoice is returned to the Contractor because it is incomplete or improper, the imposition of net 30 calendar day terms on NYCT will not begin until a complete and proper invoice is returned to NYCT.
3. The Contractor shall provide a monthly bill itemized by the components of the Contract Price in paragraph B, above, “Payments.” (Variable Costs will be itemized by type of Revenue Vehicle, for each Revenue Vehicle operated by the Contractor).
D. Supporting Documentation : The following are in addition to any other requirement set forth in this Contract with respect to supporting documentation that must accompany an invoice:
1. The Contractor’s invoice must be accompanied by appropriate documentation that the deliverable has been delivered in accordance with the Contract, and if this Contract requires acceptance thereof as a condition precedent to payment, that the deliverable has been so accepted.
a. All invoices for Vehicle Service Hours must be supported by complete and adequate documentation sufficient to permit NYCT to confirm that the Vehicle Service Hours were provided.
b. All invoices for vehicle insurance costs shall be accompanied by a copy of the original invoice from the insurance company and a copy of the Contractor’s check for payment, and any other supporting documentation that NYCT directs.
c. All invoices for any leased vehicles shall be accompanied by the leasing company’s invoice and a copy of the Contractor’s check for payment.
2. Invoices must also be accompanied by all affidavits, time records, staffing and other records, as applicable, including E-Z Pass billing records in disk form, and applicable third-party lease invoices with their supporting documentation, provided for or required by the Contract to establish the amount of payment and/or performance of the Work billed, as well as a statement with sufficient specificity which establishes the basis on which the payment is due according to the Contract. Any documentation generated by the Authority, such as certificates of acceptance, will be issued in accordance with the terms of the Contract.
3. A sworn certificate or equivalent document signed by a knowledgeable officer of the Contractor that the services covered by the Contract have been performed for the period covered by the invoice. Any false certification shall render the invoice void, and the Authority shall be entitled to recover immediately any monies paid on such invoices.
E. Inspection, Review and Audit : In addition to any other requirements pertaining to the right of the Authority or other entity to perform inspections, reviews or audits with respect to any payment or to the Contract as a whole, the Authority reserves the right to inspect, review and/or audit each invoice for payment to verify that the invoice amount is consistent with the materials, labor, goods, and/or services provided and is in accordance with the provisions of the Contract, as well as to determine the resources applied or used by the Contractor in fulfilling the terms of the Contract or otherwise to verify that the Work, goods or services billed for were provided in accordance therewith. The Authority will require ten (10) Authority business days from the Receipt of Invoice Date within which to perform this function.
Set-off : The Authority shall have the right to set-off against any payment due the Contractor under this Contract any unpaid legally enforceable debt owed by the Contractor to the Authority as outlined in Authority’s Prompt Payment Rules (21 NYCRR §1002). Liquidated Damages as well as monies equal to the fare revenue that should have been collected, calculated as the number of Customer and Guest trips performed times the then applicable fare, shall be deducted by NYCT from the payments made to the Contractor each month.
F. Designated Payment Office : The Designated Payment Office, to which all invoices and supporting documentation are required to be submitted under this Contract, is as follows:
Original and (1) copy of all invoices to:
New York City Transit
In addition, one (1) copy of all invoices is required to be submitted simultaneously to:
Michael Cosgrove, Project
G. Conditions Precedent to Payment : Unless otherwise stipulated in writing by the parties, the Authority shall make payment subject to the following conditions, which are, unless waived in whole or in part by the Authority in writing, conditions precedent to payment:
1. The Contractor is not, in the Project Manager’s and/or Procurement Sub-Division’s opinion, in material breach of this Contract;
2. The Project Manager has accepted the Work.
3. All records required to be submitted to the Authority have been received by the Authority, unless the Project Manager has, in writing, granted an extension of time.
H. Withholding Payment : The Authority may withhold sums equal to any claims of the Authority against the Contractor, for indemnification or otherwise, pending settlement or other disposition of such claim. The Authority may withhold from any payment otherwise due the Contractor as much as may be necessary to protect the Authority and if it so elects may also withhold any amounts due from the Contractor to any Subcontractors or Suppliers for work performed or material furnished by them. The foregoing provisions shall be construed solely for the benefit of the Authority and will not require the Authority to determine or adjust any claims or disputes between the Contractor and his Subcontractors or Suppliers, or to withhold any moneys for their protection unless the Authority elects to do so. The failure or refusal of the Authority to withhold any moneys from the Contractor shall in no way impair the obligations of any surety or sureties under any bond or bonds furnished under this Contract. The Authority may withhold payment to the Contractor, if the Contractor fails to remedy unsuitable conditions. The Contractor shall be given written notice of any unsuitable conditions.
I. Prompt Payment Rules and Regulations : The Authority will pay proper invoices within the time periods provided in the Prompt Payment Rules and Regulations (21 NYCRR §1002). Payment will be deemed to have been made upon being mailed by the Authority.
J. Final Payment : After the expiration of the Contract, or its termination, the Contractor shall submit an invoice marked “Invoice for Final Payment” covering all items not previously invoiced. This “Invoice for Final Payment” shall contain or be accompanied by the information or supporting documentation, and shall otherwise be in the form, described in this Article or elsewhere in this Contract. Any dispute over the proper amount of the Final Payment is subject to the dispute resolution provisions (Article 211) of this Contract.
K. Audit and Adjustment : All payments are subject to audit and adjustment by the Authority, Contractor shall make its records available for three years (3) after the later of termination of or final payment under this Agreement.
L. Retainage : The Authority will retain an amount equal to five percent (5%) of each monthly payment for the first year of the contract. In each subsequent month, the Authority will retain an amount equal to 5% of each monthly payment minus an amount equal to the average of monthly retainages for the prior Contract Years. Such retained monies shall be held as security for the full and faithful performance by the Contractor of all the conditions, covenants and requirements contained in this Agreement.
ARTICLE 109 DRUG AND ALCOHOL TESTING
A. The Contractor agrees to comply with the requirements of 49 CFR Parts 40, 653 and 654, promulgated by the U.S. Department of Transportation - Federal Transit Administration to implement the Omnibus Transportation Employee Testing Act. These regulations require that grantees of federal funds implement a program requiring Safety-Sensitive (as defined in the regulations) employees, including those of the Authority’s contractors (though not including subcontractors), to be subject to drug and alcohol testing. In addition to performing such tests (including tests on a random basis), maintaining custody and control over the results thereof and transmitting the results thereof as required by the regulations, the Contractor will also be required to provide information and training regarding the testing program to all of its affected employees, including direct supervisors, and to certify that it has established and implemented the required program.
B. If the Safety-Sensitive Work will commence within six months after the award of the Contract, the Contractor will submit the documents listed below for the Authority’s approval within thirty (30) days after Contract award. If the Safety-Sensitive Work will commence at least six months after Contract award, the Contractor will submit the documents listed below for the Authority’s approval at least sixty (60) days prior to the commencement of the Safety-Sensitive Work.
1. An initial certification of the Contractor’s compliance with 49 CFR Parts 653 and 654 in the form set forth in Paragraph C below.
2. A copy of the Contractor’s Drug and Alcohol Testing Program policy statement.
3. A copy of the Contractor’s training program for supervisors and employees.
4. A copy of the Contractor’s drug and alcohol testing procedures for the following:
a. pre-employment or transfer testing (drug testing only);
b. random testing;
c. reasonable suspicion;
e. return to work; and
f. refusal to be tested.
5. A copy of the Contractor’s Drug and Alcohol Testing Program record keeping procedures.
6. The name and location (address) of the following:
a. collection site(s);
c. Medical Review Officer (MRO);
d. Breath Alcohol Technician (BAT); and
e. Substance Abuse Professional (SAP).
C. To certify compliance with 49 CFR Parts 653 and 654, the Contractor shall submit initially as required by Paragraph B and annually thereafter while Safety-Sensitive work is performed, certifications in the following form:
SUBSTANCE ABUSE CERTIFICATIONS
Alcohol Testing Certification
As required by FTA regulations, “Prevention of Alcohol Misuse in Transit Operations,” at 49 CFR 654.83, Contractor certifies that it has established and implemented an alcohol misuse prevention program complying with the requirements of 49 CFR Part 654.
Anti-Drug Program Certification
As required by FTA regulations, “Prevention of Prohibited Drug Use in Transit Operations,” at 49 CFR 653.83, Contractor certifies that it has established and implemented an anti-drug program and has conducted employee training complying with the requirements of 49 CFR Part 653.
The Contractor shall submit the FTA required Management Information System (MIS) reports before February 1 of each year of the Contract. The Contractor may obtain current versions of the MIS forms by contacting the FTA at (617) 494-6336.
D. The Contractor shall submit a semi-annual MIS report summarizing its Drug and Alcohol Testing Program results, if required by the Project Manager.
E. The Contractor shall submit one copy of all required documentation, reports and certifications, other than the MIS report, to the Authority’s Project Manager and one copy to the Senior Director, Medical Information Management Services. If the Contractor elects to submit its MIS report using paper forms, the Contractor must submit an original signed form to the Senior Director, Medical Information Management Services, with a copy to the Authority’s Project Manager. If the Contractor elects to submit its MIS report using a CD diskette, the Contractor must submit an original signed front page from the CD diskette form and the completed CD diskette to the Senior Director, Medical Information Management Services, with a copy of the front page from the CD diskette form to the Authority’s Project Manager.
F. The Contractor shall immediately notify the Project Manager, in writing, of any changes to the documentation, reports or certifications previously submitted to the Authority. Notwithstanding this requirement, the Contractor, unless otherwise required, does not have to report statistical changes resulting from its drug and alcohol tests.
G. If the Authority determines after award that the Contractor is performing Safety-Sensitive Work, Contractor shall be required to comply with the regulations. In the event such compliance entails costs and expenses not otherwise being borne by the Contractor, they will be eligible for reimbursement in accordance with Article 206, “Changes.”
H. The Contractor shall make immediate notification to the Authority’s Project Manager if the Contractor intends to use its employees to perform or performs Safety-Sensitive Work previously performed by a subcontractor’s employees. The Contractor shall submit copies of all documentation requiring Authority approval (as set forth in Paragraph B) prior to commencement of the Safety-Sensitive Work by the Contractor. If the Contractor assumes the performance of
Safety-Sensitive Work previously performed by a subcontractor, the Contractor will not be eligible for reimbursement for extra work as such term is defined in Article 206, “Changes.”
I. The Contractor agrees to permit any authorized representative of the United States Department of Transportation, the Federal Transit Administration, or the Authority, to inspect the facilities and records associated with the implementation of the drug and alcohol testing program as required under 49 CFR Parts 653 and 654 and review the testing process.
J. Compliance with this Article 109 and Article 110 shall be deemed a material obligation of this Contract.
ARTICLE 110 PRIVACY ACT
A. 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 USC §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 Contract.
B. The Contractor also agrees to include the requirements of this Article in all subcontracts to administer any system of records on behalf of the Federal Government issued pursuant to this Contract.
ARTICLE 111 LIQUIDATED DAMAGES
1. The Contractor acknowledges that strict adherence to the Contract terms and conditions is necessary to provide safe, reliable, and on-time service to AAR Customers in a Customer- friendly manner. The Contractor represents that it is qualified to and will perform transportation services that comply with the Scope of Work and meet best paratransit industry standards.
2. NYCT will closely monitor performance of this Work. NYCT has the right to enter the Contractor’s premises at any time without advance notice to or authorization from the Contractor in order to observe the Contractor’s operations. Monitoring methods that will be used to assess the Contractor’s performance include, but are not limited to, radio monitoring, telephone monitoring and recording, on-street service monitoring and random facility, vehicle and records inspections.
3. The Contractor acknowledges that a pattern of deficient performance and inadequate response on the Contractor’s part will cause the Authority to incur damages. Inasmuch as the amount of such damages and the loss to the Authority will be extremely difficult to ascertain, it is hereby expressly agreed that such damages will be liquidated and paid not as a penalty, but as liquidated damages.
B. Upon a determination by the Project Manager that the Contractor has engaged in a pattern of deficient performance and inadequate response with respect to the provision of safe, reliable, or on-time performance, as defined below, not due to factors outside the control of the Contractor, the following damages shall be assessed:
1. Reliable Service:
a. Contractor No-Shows:
Contractor No-Shows adversely affect the reliability of AAR service. For each month in which Contractor No-Shows exceed .3% of all trips assigned to the Contractor for a specified month, Contractor shall pay the Authority the sum of $20.00 for each No-Show.
b. Late/Failed Pul1-Outs:
A failure of the Contractor to meet daily Pull-Outs because of a failure to have sufficient Revenue Vehicles or Vehicle Operators available for service adversely affects the reliability of AAR service. In any month in which more than .3% of total Routes for the month failed to Pull-Out within 45 minutes of the Pull-Out time for the Route, Contractor shall pay the Authority the sum of $500,00 for each failed Pull-Out.
2. On-Time Performance :
Late pick-ups adversely affect the On-Time Performance of AAR service. In any month in which Contractor fails to achieve 95% On-Time Performance, the Contractor shall pay the Authority the sum of $10.00 for each late pick-up that occurred 15 minutes or more past the Scheduled Pick-Up Window.
3. Safe Service:
Inadequately maintained Revenue Service Vehicles, inadequately trained Vehicle Operators, placement into service of Vehicle Operators who do not meet the qualifications and training requirements of the Scope of Work, Vehicle Operators who exhibit unsafe operation of Revenue Vehicles, Vehicle Operators who are placed or allowed to remain in service when they are unfit for duty, and failure to report Accidents as required by the Scope of Work adversely affect the safe operation of the service. Upon a determination of the Project Manager that Contractor’s record of performance of the Scope of Work has caused the events described herein to occur at such a level that the safe operation of AAR service has been placed at risk, Contractor shall pay the Authority the sum of $250.00 per day until such time as the Project
Manager determines that the Contractor has implemented a plan that will cure the specified deficiencies.
4. Quality of Customer Service :
Customer service is adversely affected when Contractor fails to keep Revenue Vehicles clean, fails to maintain and utilize heating and air conditioning, as applicable, in the Revenue Vehicles, places Vehicle Operators in service who do not adhere to the standards for Vehicle Operator uniforms, permits Vehicle Operators to remain in service who are discourteous or abusive to Customers or who violate the rules for Vehicle Operators when in Revenue Service. Upon a determination of the Project Manager that Contractor’s record of performance of the Scope of Work has caused the events described herein to occur at a level such that AAR Customers’ satisfaction with service quality has been placed at risk, Contractor shall pay the Authority the sum of $10.00 per incident until such time as the Project Manager determines that the Contractor has implemented a plan that will cure the specified deficiencies.
C. Should the Contractor wish to contest all or part of an assessment of liquidated damages, it must, within ten (10) business days from the date of such notice, respond in writing to the Project Manager stating the reasons why such assessment is in error. The Project Manager may affirm, modify, or withdraw the assessment, as he deems appropriate. If the Contractor fails to contest a notice of assessment of liquidated damages within ten (10) business days from the date of such notice, the assessment becomes final and binding upon the Contractor without further notice from NYCT.
ARTICLE 112 VEHICLE LEASES
A. Unless otherwise directed by the NYCT, the Contractor shall utilize NYCT-owned paratransit vehicles to provide Revenue Service, and NYCT-owned Non-Revenue Vehicles which shall be assigned and leased to the Contractor subject to the terms and conditions of the lease that is appended hereto and incorporated herein as Attachment No. 3.
B. NYCT reserves the right to direct the Contractor to lease Revenue and Non-Revenue Vehicles from third parties in accordance with Article 120 below.
ARTICLE 113 PROSECUTION OF THE WORK
A. During the prosecution of the Work, should unforeseen difficulties of any nature be encountered, the Contractor shall promptly notify the Project Manager and take every necessary or proper precaution to overcome the unforeseen difficulty according to the direction of the Project Manager and as provided in these Contract Documents.
B. All goods and workmanship shall be of the best class in every respect, and the Project Manager shall be the sole judge of quality and efficiency.
C. In all operations connected with the Work, the Contractor shall comply with applicable local laws and ordinances of the City of New York, and all laws of the State of New York which control or limit in any way the actions of those engaged in the Work, or affecting the Work belonging to or used by them, shall be strictly complied with, and further, the Contractor shall comply with all applicable Federal, State and City regulations regarding the transportation of Customers and other passengers.
D. The Contractor shall employ only competent, skillful, and faithful personnel to do the Work.
E. The Contractor hereby represents that prior to submitting his proposal, he examined the Scope of Work in detail and satisfied himself as to the intent of the Scope of Work relating to the Work to be performed, and he shall not at any time make any claim for damage or extension of time, or any other demand because of any misinterpretation or misunderstanding of the Scope of Work, or because of any lack of information.
F. All goods of whatever kind, which, during their installation become damaged from any cause whatsoever, shall be removed and shall be replaced by new, undamaged goods without any additional cost to the Authority.
G. The Contractor shall furnish all labor, material, plant, tools, supplies and other means necessary to perform the Work described in the Contract Documents in accordance with the Scope of Work, and shall perform such Work within the direction and to the satisfaction of the Project Manager.
H. The Contractor agrees to deliver and install conforming goods in accordance with the Scope of Work.
ARTICLE 114 INSURANCE
The Contractor and any Subcontractor shall procure at a minimum, the insurance coverage specified in Attachment 4. The Contractor or Subcontractor shall be responsible for any deductible amount.
ARTICLE 115 RISK OF LOSS
A. The Contractor assumes the risk of, and shall be responsible for, any loss or damage to Authority property, including property and equipment leased by the Authority, used in the performance of this Contract, and caused, either directly or indirectly by the acts, conduct, omissions or lack of good faith of the Contractor, its officers, managerial personnel, and employees or any person, firm, company, agent or others engaged by the Contractor as expert, consultant, specialist, or subcontractor hereunder.
B. In the event that any such Authority property is lost or damaged, except for normal wear and tear, then the Authority shall have the right to withhold further payments hereunder for the purpose of set-off, in sufficient sums to cover such-loss or damage.
C. The Contractor agrees to indemnify the Authority and hold it harmless from any and all liability or claim for damages due to any such loss or damage to any such Authority property.
D. The rights and remedies of the Authority provided herein shall not be exclusive and are in addition to any other rights and remedies provided by law or by the Contract.
ARTICLE 116 SUBCONTRACTORS
A. If the Contractor will cause any part of this Contract to be performed by a Subcontractor, unless otherwise expressly provided elsewhere in this Contract, the provisions of this Contract will apply to such Subcontractor and its officers, agents and employees in all respects as if it and they were employees of the Contractor; and the Contractor will not be in any manner thereby discharged from its obligations and liabilities hereunder, but will be liable hereunder for all acts and negligence of the Subcontractor, its officers, agents and employees, as if they were employees of the Contractor. The employees of the Subcontractor will be subject to the same provisions hereof as the employees of the Contractor; and the Work performed by the Subcontractor will be subject to the provisions hereof as if performed directly by the Contractor.
B. The Contractor, before making any subcontract for any portion of the Work, will state in writing to the Authority the name of the proposed subcontractor, the portion of the Work which the proposed subcontractor is to do, its place of business, and such other information as the Authority may require. The Authority will have the right to require the Contractor not to award any subcontract to a person, firm or corporation disapproved by the Authority.
C. Before entering into any subcontract hereunder, the Contractor will inform the proposed subcontractor fully and completely of all provisions and requirements of this Contract relating either directly or indirectly to the Work to be performed. Any Work performed by a Subcontractor will strictly comply with the requirements of this Contract.
D. In order to qualify as a Subcontractor satisfactory to the Authority, in addition to the other requirements herein provided, the proposed subcontractor must be prepared to prove to the satisfaction of the Authority that it has the necessary facilities, skill and experience, and ample financial resources to perform the Work in a satisfactory manner. To be considered skilled and experienced, the proposed subcontractor must show to the satisfaction of the Authority that it has satisfactorily performed Work of the same general type which is required to be performed under this Contract.
E. If any proposed subcontractor or supplier is a subsidiary or affiliate of Contractor, then NYCT will require the submission of two (2) additional competitive bids (for a total of three) from other potential subcontractors or suppliers for the Work required to be performed under this Contract. The Contractor must provide justification for the selection of its own subsidiary or affiliate and will be subject to NYCT review and approval.
ARTICLE 117 RELATIONSHIP OF CONTRACTOR TO THE AUTHORITY
The relationship of Contractor to the Authority is that of an independent Contractor, and said Contractor, in accordance with its status as such, covenants and agrees that it will conduct itself consistent with such status, that it will neither hold itself out as nor claim to be an officer or employee of the Authority (or the MTA or the City) by reason hereof, and that it will not, by reason hereof, make any claim, demand or application to, or for any right or privilege applicable to an officer or employee of the Authority (or the MTA or the City), including, but not limited to, Workers’ Compensation coverage, Unemployment Insurance Benefits, Social Security coverage or retirement membership or credit.
ARTICLE 118 DISCLOSURE
Contractor hereby represents that to the best of its knowledge neither it nor any of its personnel has been the subject of any investigation or has any of them been convicted or indicted for commission of any crime involving misconduct, corruption, bribery, or fraud in connection with any public contract in the State of New York or any other jurisdiction, except as has been specifically disclosed in writing to the Authority, and that, should any such conviction or indictment be obtained or any such investigation commenced prior to the expiration of the term hereof, regardless of the date of the occurrence giving rise to the subject matter of such conviction, indictment or investigation, it will be disclosed in writing to the Authority. Breach of this provision is expressly understood to constitute a material breach hereof.
ARTICLE 119 PUBLICITY
A. Prior written approval of the Authority is required before the Contractor or any of its employees, servants, agents or independent contractors may, at any time, either during or after completion or termination of this Contract, make any statement to the press or issue any material for publicity through any medium of communication bearing on the Work performed or data collected under this Contract.
B. If the Contractor wishes to publish a work dealing with any aspect of performance under this Contract, or of the results and accomplishments attained in such performance, such publication requires the prior written approval of the Authority, which approval may be conditioned upon the Authority’s obtaining royalties from the Contractor, and also obtaining a non-exclusive and irrevocable license to reproduce, publish, or otherwise use and authorize others to use the publication.
ARTICLE 120 VEHICLES LEASED BY CONTRACTOR FROM THIRD PARTIES
In the event that the Contractor is directed to lease Revenue Vehicles from a third party in order to provide paratransit services pursuant to this Agreement, the lease agreement must be approved in advance by the Authority and the Authority will reimburse the approved leasing costs pursuant to Article 108. The following provisions must be included in any vehicle lease with a third party:
A. Right of Assignment
1. The vehicles leased herein are procured for the purpose of fulfilling Lessee’s obligations pursuant to a separate agreement with the New York City Transit Authority (“Transit Authority”) that grants Lessee the right to provide public services on its behalf. If said right is terminated, or if the Transit Authority reassigns any of Lessee’s routes, the Transit Authority will exercise its right, granted by this provision, to receive assignment of this Lease and reassign it according to the following terms and conditions:
2. The Transit Authority shall send written notice of the assignment and assumption to the Lessor and execute all documents reasonably required by the Lessor. The Transit Authority shall be bound by all of the covenants of this Lease, except, the insurance provisions, because the Transit Authority is a self-insuring public benefit corporation created under the New York Public Authorities Law.
3. The Transit Authority shall have the right upon written notice to the Lessor to reassign the lease to any one of its paratransit contractors (proposed lessee). Any reassignment shall be subject to the Lessor’s credit approval of the proposed lessee. Such credit approval may be denied on the basis of the proposed lessee’s failure to satisfy the Lessor’s standards of credit worthiness, as determined in the sole discretion of the Lessor.
4. The credit approval shall be deemed granted thirty (30) days after the Transit Authority’s assignment to the proposed lessee, unless the Lessor sends prior written notice to the Transit Authority. Upon Lessor’s credit approval of the proposed lessee, the reassignment of the lease to and assumption of the lease by the Authority-designated paratransit contractor (Lessee) shall be deemed in effect, and the Transit Authority shall have no further obligations to the Lessor.
5. If the credit approval is denied, the Transit Authority may guarantee in writing the proposed lessee’s payments to the Lessor. Upon Lessor’s receipt of such guarantee, the assignment of the lease to and assumption of the lease by the Authority-designated paratransit contractor (Lessee) shall be deemed in effect, and the Transit Authority shall have no further obligations to Lessor.
B. Option to Purchase:
1. Upon payment in full of all rents and obligations due under the lease by and between Lessor and Lessee, the Transit Authority shall have the option to purchase the vehicle and any equipment thereon (the “Equipment”) as more fully described herein, for the sum of one and 00/100 dollars in United States Currency ($1.00) (the “Purchase Price”) on an “as is, where is”
basis provided the Lessee is not then in default of any material terms and conditions of this Lease, which default has not been cured by the Transit Authority.
2. In the event the Transit Authority elects not to exercise this purchase option, the Lessee shall have the option to purchase the Equipment for the Purchase Price plus all applicable sales or use tax on an “as is, where is” basis provided the Lessee is not then in default of any terms and conditions of this Agreement.
3. With respect to the Equipment at that time, Lessor makes no representation or warranty, express or implied, as to any matter whatsoever, including the condition of the Equipment, its merchantability, or its fitness for a particular purpose.
4. Lessor shall execute and deliver to Lessee, or the Authority, as applicable, all documents necessary and proper to effect the transfer of ownership of the Equipment to Lessee upon payment by Lessee of the Purchase Price.
C. Transit Authority-Third Party Beneficiary
Lessee and Lessor agree that the Transit Authority is a third party beneficiary of the Lease for purposes of these special conditions.
ARTICLE 121 AMENDMENTS
This Contract may be amended only by an instrument in writing executed by the Authority and Contractor.
Any and all notices under this Agreement, if to the Contractor shall be delivered to:
Mr. David Kessler, Vice President
Atlantic Paratrans, Inc.
7 North Street,
Staten Island, NY 10302
and if to the Authority,
Michael Cosgrove, Project Manager
New York City Transit Authority
2 Broadway, 11 th Floor
New York, New York 10004
ARTICLE 122 ATTACHMENTS
Attachment numbers 1-22 are incorporated in this Contract and shall be deemed to apply to the entire Contract.
ARTICLE 123 RESCISSION
In the event that the Authority elects to execute this Contract prior to submission by the Contractor and approval by the Authority of any required document, such as an insurance policy, the Authority may, in its sole discretion, rescind this Contract if all such matters have not been resolved to the Authority’s satisfaction within thirty (30) days after execution hereof.
ARTICLE 124 EXTENSION OF TERM
A. The Authority has the option to extend the term of the Contract with no change to the Contract Price, except for those adjustments to the Contract Price which are set forth in the Contract, for up to two (2) additional year(s). This option may be exercised, in the sole discretion of the Authority, for a single or multiple term(s) of four (4) or six (6) months, for a one-year or two one-year terms, or for a two-year term.
B. The option shall be exercised by notification by the Authority to the Contractor, in writing, that it is exercising the option to extend the term of the Contract, at any time prior to three months in advance of the expiration of the Contract.
ARTICLE 125 ORDER OF PRECEDENCE
If there is a conflict between provisions of this Agreement, the following order of precedence shall apply:
A. Terms and Conditions
B. Scope of Work, Attachment No. 1
C. Price Schedule, Attachment No. 2
D. Other Attachments
IN WITNESS WHEREOF , the parties hereto have executed this Agreement to be effective with the date set forth in the Notice of Award.
ACKNOWLEDGMENT FOR THE AUTHORITY
On this 4 th day of October, 2001, before me personally appeared Timothy P. Rooney to me known, who, being by me first duly sworn, did depose and say: That he is the Assistant Chief Procurement Officer of the New York City Transit Authority, the public benefit corporation described in and which executed the foregoing instrument and that he acknowledged to me that he signed his name thereto pursuant to the authorization of said Authority.
ACKNOWLEDGMENT FOR CONTRACTOR, IF A CORPORATION
On this 4 th day of October 2001 , before me personally appeared David S.Kessler to me known, who, being by me first duly sworn, did depose and say: That he resides at No. 7 North Street , in the City of Staten Island , in the County of Richmond , in the State of New York , that he is the Vice President of Atlantic Paratrans, Inc., the corporation described in and which executed the foregoing contract; that he/she knows the corporate seal of said corporation; that one of the seals affixed to said contract is such corporate seal, that it was affixed thereto by order of the Board of Directors of said corporation, and that he/she signed his/her name thereto by like authority.
NEW YORK CITY TRANSIT AUTHORITY
Division of Materiel
GENERAL CONTRACT PROVISIONS
ARTICLE 201 AGREEMENT
The Contractor agrees to perform the Work in accordance with requirements and terms and provisions hereinafter set forth in the Contract Documents. In consideration for the complete, satisfactory and proper performance thereof by the Contractor, the Authority agrees to pay to the Contractor, and the Contractor agrees to accept as full compensation therefor, the sums of money set forth in the Price Schedule at the time and in the manner and upon the terms and conditions hereinafter set forth in the Contract Documents.
ARTICLE 202 NOTICES
Except as otherwise specifically provided, the delivery of any notice, direction or communication to the Contractor or the Authority shall be made by hand, mail, or facsimile transmission directed to the Contractor at the address set forth in the Bid and to the Authority to the attention of the Project Manager at the address set forth in the Notice of Award, and shall be deemed to be sufficient service thereof as of the date of such delivery by hand or transmission or three (3) days after mailing. With respect to notices to the Authority, the Contractor shall additionally send a copy of each notice sent to the Project Manager to the Authority’s Division of Materiel to the attention of the Procurement Representative. The addresses may be changed at any time by notice in writing. Nothing contained herein shall be deemed to preclude or render inoperative the service of any notice, direction or other communication personally upon the Contractor, or if the Contractor is a corporation, upon any officer or director thereof. Nothing in this article shall be deemed as a waiver by the Authority of other requirements with respect to the service of process upon it.
ARTICLE 203 GENERAL RULES OF INTERPRETATION
A. The Information for Bidders, the Bid (including the Price Schedule), General Contract Provisions, Specific Contract Provisions, Schedules (excluding Schedule H, Bidder’s Qualification Questionnaire or Schedule J, Responsibility questionnaire), all Addenda (if any), the Technical Specifications (if any), the Contract Drawings (if any), the Attachments (if any), and the Notice of Award, constitute the Contract and shall be referred to collectively as the “Contract” or the “Contract Documents.”
B. The Contract is also deemed to include by reference those portions of the Bidder’s Qualification Questionnaire or Responsibility Questionnaire which contain additional conditions and obligations on the Contractor and rights in favor of the Authority.
C. References to any agreement or other instrument shall be deemed to include such agreement or other instrument as it may, from time to time, be modified, amended, supplemented, or restated in accordance with its terms.
D. The word “Contractor” when used in this Contract, shall mean the Bidder to whom the Authority awards this Contract.
E . The terms “hereof,” “herein,” “hereby, “herewith,” “hereto,” and “hereunder” shall be deemed to refer to this Contract.
F. The headings of the paragraphs are inserted for convenience only and shall not affect the construction or interpretation of this Contract.
K. Defined terms appertaining to this Contract are set forth in the Specific Contract Provisions.
G. All references to “days” shall be deemed to be calendar days, unless otherwise expressly indicated.
H. All references to “business days” shall be deemed to be references to the days of Mondays through Fridays, exclusive of Authority observed holidays.
I. All notices hereunder must be in writing, in accordance with Article 202, unless expressly indicated otherwise.
J. As used herein the singular shall mean and include the plural; the masculine gender shall mean and include the feminine and neuter genders; and vice versa.
ARTICLE 204 CONSENT OF AUTHORITY REQUIRED FOR SUBCONTRACTING, SUBLETTING OR ASSIGNMENT
The Contractor shall not subcontract, assign, transfer, convey, sublet or otherwise dispose of this Contract or its right, title or interest in or to the same or any part thereof without the prior written consent of the Authority. A violation of this provision shall be deemed to be a material breach of the Contract.
ARTICLE 205 COORDINATION WITH OTHER CONTRACTORS
During the progress of the Work, it may be necessary for other contractors and/or other persons (including personnel of the Authority) to do work in or about the work site. The Authority reserves the right to permit and put such other contractors and such persons to work and to afford them access to the Work Site (if applicable) at such time and under such conditions as does not unreasonably interfere with Contractor. The Contractor shall prosecute its Work continuously and diligently and shall conduct its Work so as to minimize interference with such other work.
ARTICLE 206 CHANGES
A. This Contract may be modified and changed from time to time as agreed to in writing between the parties hereto, in a manner not materially affecting the substance hereof.
B. No change in or modification, termination or discharge of this Contract in any for