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AMENDMENT TO CONTRACT FOR PUPIL TRANSPORTATION
This AMENDMENT TO CONTRACT FOR PUPIL TRANSPORTATION (the
"Amendment") is entered into as of the 8th day of June, 2020 by and between the COLCHESTER
BOARD OF EDUCATION (the “Board”) and M & J BUS, INC. (the “Contractor”).
RECITALS
WHEREAS, the Board and the Contractor are parties to that certain Contract for Contract for
Transportation Services dated as of October 5, 2018 (the “Contract”) whereby the Contractor agrees to
provide certain transportation services (“Transportation Services”) to the Board; and
WHEREAS, the term of the Contract commenced on July 1, 2018 and ends on June 30, 2023
(the “Term”); and
WHEREAS, pursuant to the Contract, the Board paid $110,857.22 each month to the
Contractor based on an estimate of Transportation Services to be rendered each month during the
2019-2020 school year;
WHEREAS, pursuant to the Contract, the Board paid the Contractor for services that were not
rendered during the period from March 16, 2020 through March 31, 2020 (the “Prepayment”) and
WHEREAS, on March 10, 2020, Connecticut Governor Ned Lamont issued a declaration of
public health and civil preparedness emergencies, proclaiming a state of emergency throughout the
State of Connecticut as a result of the coronavirus disease 2019 (COVID-19) pandemic; and
WHEREAS, on March 14, 2020, Governor Lamont issued Executive Order No. 7C, which
states, in relevant part, “To promote and secure the safety and protection of children in schools related
to the risks of COVID-19, all public school classes will be cancelled for all students effective
Tuesday, March 17, 2020 until March 31, 2020, unless extended beyond that date” and encourages
private schools and other non-public schools to follow the same schedule; and
WHEREAS, on March 24, 2020, April 10, 2020 and May 5, 2020, Governor Lamont issued
Executive Order Nos. 7L, 7X and 7II, which closed schools for the remainder of the 2019-2020
school year; and
WHEREAS, all schools operated by the Board and all nonpublic schools to which services are
provided under the Contract were closed beginning on March 16, 2020 due to the COVID-19
pandemic and through the remainder of the 2019-2020 school year ending on June 15, 2020 (the
“School Closure Period”); and
WHEREAS, on March 27, 2020, President Trump enacted the Coronavirus Aid, Relief, and
Economic Security (CARES) Act, which provides, in relevant part: “A local educational agency,
State, institution of higher education, or other entity that receives funds under the ‘Education
Stabilization Fund’, shall to the greatest extent practicable, continue to pay its employees and
contractors during the period of any disruptions or closures related to coronavirus”; and
WHEREAS, on March 31, 2020, Governor Lamont issued Executive Order No. 7R
(“Executive Order 7R”), which cited to the CARES Act and which states, in relevant part, “[t]o the
extent that a board of education…determines that a contract related to student transportation…requires
amendment to more accurately reflect the actual costs incurred during the duration of the public health
and civil preparedness emergencies, all parties shall promptly negotiate amendments to such
contracts;” and
WHEREAS, the Contractor has not provided the Transportation Services during the School
Closure Period and as a result the Prepayment must be adjusted in accordance with Executive Order
7R.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Board and the Contractor agree to the following amendment:
1) Definitions.
“Active Employee” means an employee of Contractor who during the School Closure Period,
directly receives monetary compensation from Contractor in accordance with the Contract. To
avoid any doubt, an employee of the Contractor will not be considered active during any period of
time when the employee is collecting unemployment benefits due to layoff or otherwise or secures
employment with a company other than the Contractor.
“Actual Costs” means actual and direct costs, arising under the Contract with the Board,
incurred by the Contractor that have not been reimbursed from any other source, including, but
not limited to, federal, state or local aid or private payment. Should an Actual Cost be invoiced by
Contractor and the Contractor later receives a reimbursement of all or part of the same cost,
Contractor shall promptly notify the Board and the parties shall work together to resolve how such
monies shall be credited to or repaid to the Board.
“Excess Payment” means the difference between the portion of the Board’s Prepayment
attributable to the School Closure Period and the Actual Costs during the School Closure Period.
For example, if the portion of the Board’s Prepayment attributable to the School Closure Period
was $100,000.00 and the Actual Costs during the School Closure Period was $80,000.00, the
Excess Payment would be $20,000.00.
“Fleet Expenses” means Actual Costs incurred by the Contactor related to vehicles designated
for service to the Board in accordance with the Contract, which costs have not been reimbursed by
any other source, including, but not limited to, federal, state or local aid or private payment. Fleet
costs eligible to be funded by the Board under this Amendment shall be limited to the minimum
costs which are necessary to ensure the delivery of appropriate home-to-school transportation
services (including both regular and special education routes, but excluding the costs associated
with ancillary services such as field trips and athletic trips) immediately after the School Closure
Period.
The phrase “rates commensurate with those being paid at that time” shall mean the rates of pay
plus health insurance costs related to each active employee who was involved in the delivery of
home-to-school transportation services under the Contract prior to the School Closure Period,
provided that such rates may be applied to an individual hired to replace any such employee. The
rates of pay eligible to be funded by the Board pursuant to this Amendment are limited to pay
commensurate with that earned by an Active Employee pursuant to the delivery of home-to-school
transportation (including both regular and special education routes, but excluding the costs
associated with ancillary services such as field trips and athletic trips) during the period
immediately preceding the School Closure Period.
2) Duration. The terms of this Amendment shall control over any inconsistent terms of the Contract
for the period beginning as of the School Closure Period and ending on June 30, 2020 (the
“Amendment Term”). To avoid any doubt, the terms of this Amendment shall terminate at 11:59
p.m. on June 30, 2020 and the terms of the Contract shall control immediately thereafter. The
Parties agree to cooperate to address issues arising regarding the reopening of schools and the
unique and unprecedented operational issues related to the COVID-19 pandemic.
3) Purpose of Amendment. The Board and the Contractor each agree that the purpose of this
Amendment is to comply with the CARES Act and Executive Order 7R. The Parties agree to
amend the terms of the Contract to (i) reconcile the difference between the portion of the Board’s
Prepayment attributable to the 122 school days and the Actual Costs for such period and apply
such Prepayment as a credit to the Board’s first invoice for the 2020-2021 school year, and (ii)
provide payment from the Board to the Contractor as set forth herein for the remainder of the
School Closure Period (April 1, 2020 through June 16, 2020) to ensure that the Contractor will be
able to promptly and with short notice, resume services. The Board represents that such payment
and reconciliation constitutes payment to the greatest extent practicable pursuant to the CARES
Act and Executive Order 7R. As a condition of acceptance of funding by the Board pursuant to
this Amendment, the Contractor agrees that it will take all necessary steps to ensure continuity of
service, including the rehiring of any laid off or inactive employees necessary to deliver
home-to-school transportation services (including both regular and special education routes) and
the replacement of any necessary employees who do not wish to return to active status, so that the
Contractor is able to fully perform its obligations under the Contract upon the end of the
Amendment Term. The Contractor shall attest to its continued ability to deliver home-to-school
service (including both regular and special education routes) with the submission of each invoice
under this Amendment. The Contractor shall promptly notify the Board if it becomes aware of
any issue that is reasonably likely to impair its ability to deliver home-to-school service (including
regular and special education routes).
4) Representation of Contractor. The Contractor represents and warrants for the duration of the
Amendment Term that any and all Invoices submitted to the Board will only contain the Actual
Costs. The Contractor represents and warrants for the duration of the Amendment Term that it
will not charge the Board for any costs which would enrich the Contractor beyond the Actual
Costs eligible for reimbursement by the Board pursuant to this Amendment. The Contractor
represents and warrants it will return the Excess Payment, if any, to the Board within ten (10)
business days of the end of the School Closure Period.
5) Invoices. During the Amendment Term, the Contractor shall submit a monthly invoice to the
Board by the 15th calendar day of each month (the “Invoice”) substantially in the form attached
hereto as Exhibit A, or in another form as reasonably requested by the Board. For the Prepayment
of services for 122 days and the lack adjusted amount for the time period of March 12, 2020 to
May 8, 2020, the balance of the Prepayment shall be applied as a credit to the Board’s first
payment due in the 2020-2021 school year in the amount of $101,057.68. Delayed submission of
the Invoice is not acceptable and will not be honored by the Board. Each Invoice shall be
accompanied by detailed supporting receipts/records and shall only include Actual Costs and shall
be limited to the following:
a) Actual Costs of wages and health insurance benefits for each Active Employee during the
invoice period. Actual Costs charged to the Board for such expenses for any Active Employee
during the School Closure Period must be “at rates commensurate with those being paid at that
time” (as defined herein); and/or
b) Actual Costs of Fleet Expenses during the invoice period.
6) Notwithstanding anything contained herein to the contrary, the following are not included in the
definition of Actual Costs and will not be paid by the Board as they are deemed to be beyond the
actual, reasonable and necessary costs to ensure the delivery of home-to-school transportation
services after the School Closure Period:
a) any expenses associated with ancillary transportation services (field trips, athletic trips, charter
bus operations, etc.);
b) incentive compensation, overtime wages, unless expressly approved by the Board in advance;
c) maintenance (labor and parts) costs beyond Fleet Expenses, as defined herein, including, but
not limited to, non-routine maintenance and/or repairs, and/or not actually incurred in relation
to the vehicles designated to provide services to the Board under the Contract;
d) garage expenses for maintenance and charges related to the storage of vehicles not directly
attributable to the vehicles designated to provide services to the Board or not authorized under
the Contract;
e) administrative expenses not authorized by this Amendment;
f) fuel costs;
g) bonuses or extra compensation; and
h) costs associated with depreciation of vehicles.
6) Payment. For the Prepayment of services for 122 days and the lack adjusted amount for the time
period of March 12, 2020 to May 8, 2020, the balance of the Prepayment shall be applied as a
credit to the Board’s first payment due in the 2020-2021 school year in the amount of
$101,057.68. The remaining invoices for each of March 16, 2020 through May 8, 2020 and May
11, 2020 through June 15, 2020, the Board shall pay the Contractor within thirty (30) days of its
receipt of an undisputed and properly itemized Invoice as listed below. The Board may reasonably
dispute, within thirty (30) days of its receipt of the Invoice, any or all item(s) shown on any
Invoice, including, but not limited to, the proper inclusion of the item on the Invoice, the amount
of the item, and the starting and/or remaining balance of the Prepayment. In the event of a dispute,
the Board shall notify the Contractor of the disputed portion of the Invoice and the reason for such
dispute. The Board may require the Contractor to provide it with more detailed information and
receipts evidencing and/or supporting any item on the Invoice in order to evaluate whether the
item is proper and/or accurate.
Invoices:
3/16/20 through 5/8/20 $149,932.86 Regular/Tech buses
5/11/20 through 6/15/20 $165,370.00 Regular/Tech buses
3/16/20 through 5/8/20 $5,757.51 Grasso Tech van
5/11/20 through 6/22/20 $7,851.00 Grasso Tech van
7) Maintenance of Records. At all times during the term of the Contract, and for a period of 3 years
thereafter, the Contractor shall maintain detailed records supporting all invoiced items on each
Invoice and shall promptly comply with any reasonable request for records limited to verifying the
accuracy of such invoiced items.
8) Improper/Unsupported Charges. The Parties acknowledge the interest of the public in the
responsible spending of public funds. In furtherance of this interest, the Board shall be entitled to
receive a credit or a reimbursement, the form of which will be specified by the Board, for any
payments made in accordance with this Amendment which are determined to have been
inconsistent with the terms of the Amendment or otherwise improper or for which the Contractor
fails to provide adequate support upon request by the Board. Such reimbursement or credit shall be
in addition to any Excess Payment due to the Board.
9) CARES Act and Executive Order 7R. The Contractor hereby agrees that the Board is in
compliance with the CARES Act and Executive Order 7R and waives any and all claims it may
have now or in the future with respect to the Board’s compliance with the same.
10) No Other Payments Due. The Board shall owe the Contractor only those amounts described
herein and shall not pay any invoice or charges of any kind for the period starting on June 17,
2020 through June 30, 2020.
11) FOIA. The Board is a “public agency” for purposes of the Connecticut Freedom of Information
Act (“FOIA”). The Parties acknowledge that records maintained by the Board (i.e. only records
maintained by the Board as of the date the Board receives a valid FOIA request) may be subject to
disclosure pursuant to FOIA. Nothing in this Agreement limits the rights of the Contractor to
object, on the basis of exemptions permitted under FOIA or other applicable law, to the disclosure
of the Contractor’s records that directly relate to the invoiced items set forth in this Amendment,
provided such records are maintained by the Board.
12) Governing Law. This Amendment shall be governed by the laws of the State of Connecticut
without giving effect to its choice of law principals.
13) Miscellaneous.
a) Except as otherwise expressly provided by this Amendment, all of the respective terms,
conditions and provisions of the Contract shall remain in full force and effect. It is declared
and agreed by each of the parties hereto that this Amendment and the Contract be read and
construed as one instrument. It is the intent of the Parties that the terms and conditions of the
Contract will resume in full force and effect upon the conclusion of the Amendment Term.
b) This Amendment may be executed and delivered in any number of counterparts, each of which
shall constitute an original, but all of which when taken together shall constitute but one and
the same Amendment. The parties further acknowledge that this Amendment may be executed
by electronic signature, which shall be considered as an original signature for all purposes and
shall have the same force and effect as an original signature. Without limitation “electronic
signature” shall include faxed versions of an original signature, electronically scanned and
transmitted versions (e.g., via pdf) of an original signature, or signature via DocuSign or other
similar electronic signature program.
c) The provisions of this Amendment shall be binding upon and inure to the benefit of the Parties
hereto and their respective permitted successors and assigns.
d) Each term and condition, article, paragraph and subparagraph of this Amendment and any
portion thereof, will be considered severable. If, for any reason, any portion of this
Amendment is determined to be invalid, contrary to or in conflict with any applicable present
or future law, rule or regulation in a final ruling issued by any court, agency or tribunal with
valid jurisdiction, that ruling will not impair the operation of or have any other effect upon,
any other portions of this Amendment; all of which will remain binding on the Parties and
continue to be given full force and effect.
e) Sections 4, 5, 6, 7, 8, 9, 10, 11, 12 and Exhibit A shall survive the termination or expiration
of this Amendment.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the date set
forth above.
COLCHESTER BOARD OF EDUCATION
By:
Name:
Title:
M & J BUS, INC.
By:
Name:
Title:
EXHIBIT A
PAYMENT TERMS
The Board shall compensate the Contractor in the amount of Actual Costs invoiced, provided that the Actual
Costs invoiced by the Contractor:
March 16, 2020 through May 8, 2020: 60% of the daily home-school rate for the period starting on
March 16, 2020 through May 8, 2020. The Parties acknowledge that the Board already provided payment of
100% of the daily home-school rate for the period of 122 school days (the Prepayment). The Contractor shall
apply the balance of the Prepayment (at least 40% of the daily home-school rate) to the first payment due by the
Board for the 2020-2021 school year.
May 11, 2020 (from the date on which the driver and dispatchers are rehired/restored to employment for
the 2019-2020 school year): 90% of the daily home-school rate for the period starting on the date of re-hire
through June 15, 2020.
1. Are costs that have actually been incurred by the Contractor during the School Closure Period.
2. Are necessary to ensure continuity of transportation services for the Board.
3. Are eligible for funding by the Board under the terms of the Amendment.
4. Are invoiced in a form approved by the Board and supported by documentation by the Contractor, including,
but not limited to, documentation of active employee status during the invoice period for any invoiced
amounts for wages and health insurance costs.
5. Do not result in the Contractor being enriched beyond the actual and reasonable cost of sustaining wage and
health insurance payments for active employees and/or agreed-upon Fleet Expenses.
6. Are accompanied by the following attestation (the attestation must be included with each invoice):
By submitting this Invoice, the following represents and warrants on behalf of M & J BUS, INC. that the
information provided herein complies with the Amendment to Contract for CONTRACT FOR PUPIL
TRANSPORTATION between COLCHESTER BOARD OF EDUCATION and M & J BUS, INC. dated as of
May 20, 2020 (the “Amendment”), the information provided herein is correct and accurate and complies with
Executive Order 7R (as defined in the Amendment) in all respects, including but not limited to, the fact that M &
J BUS, INC. is not being enriched beyond the actual and reasonable costs incurred to ensure the continuity of
transportation services at the conclusion of the School Closure Period (as defined in the Amendment). M & J
BUS, INC. also hereby represents and warrants that promptly and with short notice it will be able to resume
services at the conclusion of the School Closure Period.
M & J BUS, INC.
By:
Name:
Title