Res 1839 - Reverse Commute Agr. Salem Transit
COUNCIL BILL NO. 2639
RESOLUTION NO. 1839
A RESOLUTION ENTERING INTO THE JOB ACCESS REVERSE COMMUTE
AGREEMENT FOR FY 2006-2008 WITH THE SALEM AREA TRANSIT DISTRICT AND
AUTHORIZING THE CITY ADMINISTRATOR TO SIGN SUCH AGREEMENT.
WHEREAS, the City of Canby has developed a public transportation service
between Canby and Woodburn and proposes to utilize Job Access Reverse Commute
grant funding available from the Salem Mass Transit District to support this public
transportation service; and
WHEREAS, Salem Mass Transit District desires to enter into an agreement with
an agency in Marion County for disbursement of the Job Access Reverse Commute
grant funding and the City of Canby is located in Clackamas County; and
WHEREAS, The City of Woodburn is an agency in Marion County and is
agreeable to entering in an agreement with Salem Mass Transit District for
disbursement of the Job Access Reverse Commute grant funding that will be passed
through to the City of Canby; and
WHEREAS, the public transportation service provided by the City of Canby
benefits the City of Woodburn by providing enhanced public trasportation opportunities
for the City's residents, NOW THEREFORE,
THE CITY OF WOODBURN RESOLVES AS FOllOWS:
Section 1. That the City of Woodburn enter into the Job Access Reverse
Commute Agreement for FY 2006-2008 with the Salem Area Transit District, which
is affixed as Attachment "A" and by this reference incorporated herein, to secure Job
Access and Reverse Commute grant funding that will be passed through to the City
of Canby.
Section 2. That the City Administrator is authorized to sign said agreement on
behalf of the City.
Page 1 -
COUNCil BILL NO. 2639
RESOLUTION NO. 1839
..
Approved as to form: ~.f1r ~
City Attorney
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APPROVE
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the office of the Recorder
September 11, 2006
September 15, 2006
September 15, 2006
September 15, 2006
ATTEST:
Mary Ten nt, City Recorder
City of Woodburn, Oregon
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PAGE 2 - COUNCIL BILL NO. 2639
RESOLUTION NO. 1839
SPECIAL TRANSPORTATION
AGREEMENT
JOB ACCESS REVERSE COMMUTE
FY 2006-08
Contractor:
Period Covered:
CITY OF WOODBURN
August 1, 2006 through June 30, 2008
i
INDEX
FY 2006 - 2008 JARC Agreement
1. SCOPE OF AGREEMENT. .............................................................................................3 - 4
2. TRANSPORTATION SERVICES....................................................................... ................ 4
3. P A YM ENT........... .............................................................. ........... ................................. 4 - 5
4. CONTRACTOR'S WARRANTIES ................................................................................ 5 - 6
5. DISTRICT COVENANTS .................................. ...... ........................................................... 6
6. EQU I PM ENT ................................ .............. ................................................................... 6 - 7
7. FISCAL ACCOUNTABILITY & RECORDS MAINTENANCE ...................................... 7 - 8
8. PROGRAM INCO ME ........................................................... ......................... ......... ............. 8
9. AU DITS & EXAMINATIONS. ............................................................................................. 8
10. INSURANCE. ................................................................................................................ 8 - 9
11. INDEMNIFICATION .................................................................................................... 9 - 10
12. INDEPENDENT CONTRACTOR STATUS....................................................................... 10
13. PERMITS & LICENSES .................................................................................................... 10
14. SAF ETY ....................... .......................................................... ................. ............. ............. 10
15. DRIVER CRIMINAL & DMV BACKGROUND CHECKS ........................................... 10 - 11
16. ASS IG NM ENT ................................................. ............................................ ..................... 11
17. COMPLIANCE WITH LAWS ............................................................................................ 12
18. Fl A CONTRACT CLAUSES ............................................................................................ 12
19. ORS COMPLIANCE ........................................................................................................ 12
20. TERM I NA liON.... ........... ............... ......... ................. ........... ............... ........... ....... ...... 12 - 13
21. WAiVER............................................. ............................... ............................. ................... 13
22. NOTiCE..... ......... ............................................................................................................... 13
23. DISPUTE RESOLUTION............................ ............... ............................................ ........... 13
24. S EVERABI LITY .............................................................................. ........................... 13 - 14
25. PRIO R AG REEM ENTS ..................................................... ............................................... 14
26. JURIS DiCTION............................................................................................ ..................... 14
27. GOVERNING LAW.............. ......... ............................................. ....................................... 14
28. ATTORNEY FEES ......................................................... .............. ..................................... 14
29. EXHI BITS.......... .... ..... ....................................................................................................... 14
30. CO UNTERP ARTS.......................................... ..... ........... ...... ............................................ 14
31. COMPLIANCE WITH TAX LAW.................................. ........... .......... ................................ 14
32. DBE....................................................... ...... ............................. ..................14-15
ii
JOB ACCESS REVERSE COMMUTE AGREEMENT FY 2006-08 CITY OF WOODBURN
CONTRACT BETWEEN
SALEM AREA MASS TRANSIT DISTRICT AND CITY OF WOODBURN
JOB ACCESS REVERSE COMMUTE AGREEMENT FOR FY 2006-07 AND FY 2007-08
THIS CONTRACT is entered into this _ day of , 2006 by and between
the CITY OF WOODBURN, OREGON, a municipal corporation of the State of Oregon, hereinafter
referred to variously as "City" or "Contractor", and SALEM AREA MASS TRANSIT DISTRICT, a
municipal corporation of the State of Oregon, hereinafter referred to as "SAMTD".
SAMTD is the recipient of a Federal Transit Administration Job Access Reverse
Commute grant that is designed to link rural/small city areas of Marion County to employment and
education opportunities; and
The City and SAMTD desire to coordinate their resources to provide a two year
demonstration project of coordinated mass transit service between the City of Woodburn and the
City of Canby; and
The City agrees to implement a minimum of six and a maximum of nine deviated
fixed route transit roundtrips between Canby and Woodburn per weekday.
The two year operating costs are estimated at $242,000.
SAMTD agrees to pay up to fifty percent of operating costs to a maximum of $60,500
per year. Funds for the cost of service provided by SAMTD are from jobs access/reverse commute
(JARC) funds from federal sources. Fifty percent matching funds from the City must be from non-
federal sources.
SAMTD agrees to reimburse the City or the City's designated transit service provider
quarterly based upon information received from the City that includes trips, hours of service
provided, and cost of service and ridership data. The City shall report this information on the
Monthly Report form that has been amended to reflect JARC information. This form is included
herein as Attachment 2.
The City and, if applicable, the City's designated transit service provider shall provide
proof of insurance coverage as stated in this document.
This Agreement is in effect from August 1, 2006 through June 30, 2008. If pursuant to
the Local Budget Law (ORS 294.305 - 294.565), the governing body of the SAMTD or of the City
fails to adopt a budget specifically appropriating sufficient funds to provide the services
contemplated under this Agreement and no such appropriation is legally made, either party may
terminate this Agreement at the end of the then-current fiscal year and all obligations of the parties
under this Agreement arising thereafter shall terminate. Nothing in this Agreement shall be deemed
in any way to obligate the SAMTD or the City beyond its current fiscal year.
1. SCOPE OF AGREEMENT.
1.1 The Contractor will provide transportation services in a manner such that the District will
at all times be in full compliance with the applicable grant or other funding agreements
between the District and the source of funding for this agreement and with applicable
statutes and administrative rules, as presently existing or as hereafter amended, and in a
manner which will not cause the source of funding for this agreement to withhold
payments or disapprove funding for Contractor's services. The Contractor will comply
with all laws and regulations governing use of JARC funds and will comply with all laws
and regulations applicable to transportation of passengers. The Contractor will comply
with all policies and guidelines adopted by the District relating to the JARC program. The
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008 CITY OF WOODBURN
District's obligations under this agreement are contingent upon the continued availability
of funds.
2. TRANSPORTATION SERVICES.
2.1 The Contractor agrees to provide the transportation services described in detail by the
Statement of Work. The Contractor agrees to undertake whatever action is necessary to
provide such services and to purchase all necessary equipment required for such
services.
2.2 Contractor agrees that no special transportation services will be provided under this
agreement that may require vehicles to go outside the boundaries of the State of
Oregon.
3. PAYMENT.
3.1 Limitation of Funds. The total funds available under this agreement shall not exceed the
sum of the amounts listed in the recitals section on page 1. Contractor assumes all
responsibility for monitoring the services rendered pursuant to this agreement so as to
insure that the value of Contractor's services shall not exceed the total dollars available
for distribution as is stated in the preceding sentence.
3.2 Non-appropriations Clause. District shall not be obligated to make any payments to the
Contractor under this agreement to the extent that District does not obtain sufficient
funding from the Public Transit Division under ORS 391.810, or to the extent funds are
not appropriated by District under the Local Budget Law (ORS 294.305-294.520,
294.555, and 294.565), in which event District may, but shall not be obligated to,
terminate this contract or prorate available and appropriated funds among all providers
of transportation programs and services for the elderly and disabled currently under
agreement with District.
3.3 Payment Terms: The total sum of JARC revenues to be distributed by the District to the
Contractor shall not exceed the sum of the amounts listed in the recitals section on page
1. Beginning on or before September 15,2006 and continuing on or before the 15th day
of each following month, Contractor shall submit a completed monthly Reimbursement
Report for payment to the Specialized Transportation Director. Payment will be made by
the District's Contracting Officer on or before the last day of the submission month. If the
Reimbursement Report is received after the 15th day of the month or is not complete,
payment will not be processed until the following month. The statement will also describe
the extent and nature of transportation services previously delivered by Contractor
during the calendar month immediately preceding the Contractor's submission of each
monthly report (Monthly Report Exhibit B).
3.3.1 Payments for capital purchases shall be made by reimbursement only, upon
proof of delivery of the capital purchases(s) and presentation to the District
contracting officer of a detailed receipt for the capital item(s).
3.3.2 For monthly operating costs, payments will be made as reimbursement, in
"twelve monthly payments". No single payment will be larger than one-twelfth of
the total JARC grant amount (the "monthly limit"), unless the Contractor did not
claim the monthly limit in a previous month(s), in which case the Contractor may
be reimbursed for actual expenses up to the monthly limit plus the amount of
funds that were not claimed up to the monthly limit from the previous month(s).
3.3.3 In the event the Contractor has incurred a lump sum operating cost which
exceeds the monthly limit, the Contractor may request a larger reimbursement.
Such a request must be sent to the District's contracting officer in writing, and
must identify the nature of the cost(s), which cause the request to exceed the
monthly limit. The District's contracting officer may request any further
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
information necessary to make a determination on how much of the requested
costs beyond the limit, if any, should be reimbursed in any particular month.
3.3.4 If a request is granted, the JARC funds that remain after such reimbursement
shall be divided by the number of months remaining, and the resultant figure will
comprise a new monthly limit for the remainder of the year.
3.3.5 Contractor will not be paid for unauthorized services; claimed services or which
have inadequate proof of actual delivery.
3.3.6 The District reserves the right to withhold payment of funds if any documentation
or reporting has not been previously complied with by Contractor, or if there
exists, at the time of a request for payment, any unresolved audit findings.
3.4 Prohibited Expenditures. Except as is expressly provided in this agreement, the District
is not responsible for providing operating capital required to commence or continue the
transportation services agreed to be performed by Contractor. Contractor is entitled to
reimbursements for all costs, both directly and indirectly incurred in connection with
providing the services as budgeted in the attached Exhibit C but, except as is expressly
provided in this agreement, Contractor shall not be entitled to reimbursement of the
following costs or expenses:
3.4.1 Costs resulting from violations of, or failure to comply with, federal, state and
local laws and regulations;
3.4.2 Depreciation of any equipment, machinery, tools, furniture or other property
utilized by Contractor not directly related to the provision of transportation related.
in the performance of obligations imposed by this agreement; and
3.4.3 Payments or contributions directed to a candidate for political office or any fund
administered for the purpose of influencing legislative, administrative or other
governmental activity.
3.4.4 Contributions or donations of any other nature to individuals, organizations or
agencies.
3.4.5 Any costs or expenses determined by District to be unallowable pursuant to
standards for allowable costs adopted from time to time by the FTA.
4. CONTRACTOR'S WARRANTIES.
4.1 Contractor hereby covenants, represents and warrants to the District as follows:
4.1.1 Contractor has all requisite power and authority to own and operate the assets
required to fully perform and supply the transportation services described by
this contract.
4.1.2 Contractor will, to the maximum extent feasible, coordinate the provision of
services with other transportation providers in their area, and will utilize other
available transportation resources as practicable to minimize JARC expenses.
4.1.3 Except as is otherwise expressly disclosed herein, Contractor has paid or will
pay full withholding, social security, unemployment insurance, and workers'
compensation taxes to the state and federal government as may be required
as a result of Contractor's ownership and operation of its business activities.
4.1.4 There are presently no judgments, claims, actions, liens or other proceedings
outstanding against or pending against the assets or Contractor in any court, or
otherwise.
4.1.5 If District is required to make direct payment to any of Contractor's creditors for
any liability not expressly assumed herein, District may make such payment
and demand reimbursement thereof from Contractor, or credit such payments
against the next succeeding payment due from District to Contractor. Should
District consider it necessary to pay any creditor of Contractor, District shall first
give Contractor notice in writing of the District's intention to do so, which notice
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008 CITY OF WOODBURN
shall identify the creditor and specify the amount to be paid. Contractor shall
have ten (10) days thereafter to satisfy the creditor's claim and furnish to
District proof of such satisfaction. If Contractor fails to satisfy the claim, District
may make such payment and Contractor shall reimburse District within ten (10)
days after written demand from District, provided, however, that Contractor
may withhold payment of a claim in connection with a good faith dispute over
the obligation to pay, so long as District's interests are not jeopardized. Proof of
any payments made by Contractor shall be furnished to District in the form of a
receipt from the Creditor involved or a canceled check.
4.1.6 Contractor assumes aJlliability for funds received pursuant to this agreement,
and shall further assume responsibility for repayment to the District of any
expenditures not expressly authorized by this agreement or the attached
exhibits. Upon the receipt of written notice from the District describing the
extent and nature of any non-authorized expenditures, Contractor agrees,
within ten (10) days following the receipt of such notice, to immediately refund
any monies previously received for non-authorized expenditures. When making
repayment to the District, Contractor agrees to use non-JARC funds.
4.1.7 Except as otherwise expressly disclosed herein, Contractor has entered into no
subcontract relating to transportation services for the elderly or disabled, and
Contractor has, to the best of Contractor's knowledge, complied with all laws,
rules, and regulations relating to the performance of services under this
ag reement.
5. DISTRICT COVENANTS.
5.1 District agrees to administer this agreement in accordance with the policies previously or
hereafter specifically adopted by the District's Board of Directors.
6. EQUIPMENT.
6.1 Contractor is responsible for the purchase, repair and replacement of all equipment
required for the performance of services under this agreement. No purchase of operating
equipment or furniture will be reimbursed unless specifically authorized in writing by the
District, and unless such expenditure is further included and expressly identified in the
approved budget as evidenced by Exhibit B. In those instances where the purchase of
operating equipment has been ratified and approved in the manner set forth in the
preceding sentence, Contractor agrees as follows:
6.1.1 All equipment purchased under this agreement must be utilized solely for the
purpose of providing services described in the Statement of Work, unless
approved in advance by District in Writing.
6.1.2 When said equipment is no longer needed or utilized by the Contractor for
providing services described in the Statement of Work, Contractor agrees to
provide the District written notification of the cessation of providing services
described in the Statement of Work within five (5) days following the
Contractor's termination of such transportation activities. Contractor further
agrees to refund to the local JARC fund all net proceeds received from the sale
of such equipment, or an amount equal to the fair market value of said
equipment, not later than ninety (90) days following the date of Contractor's
cessation of elderly and disabled special transportation services. If, at the time
of purchase, funds other than JARC program administered funds were used in
the purchase of said equipment, then Contractor shall only be required to
refund that portion of sale proceeds, or fair market value, which represents
JARC participation in the purchase of Contractor's equipment.
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
6.1.3 During the life of equipment with an acquisition cost of $1,000 or more, or until
such equipment is disposed of, the Contractor will provide, quarterly reports on
such capital purchases.
6.2 Contractor agrees to comply with all reporting and audit obligations imposed by District
or the FT A.
7. FISCAL ACCOUNTABILITY & RECORDS MAINTENANCE.
7.1 Fiscal Accountability. Contractor agrees to prepare and maintain records evidencing the
performance of services under this agreement in accordance with generally accepted
accounting practices. A separate accounting for all receipts and expenditure of JARC
funds will at all times be maintained. All expenditures must be made under a previously-
approved detailed budget. Any transfers between budget categories (Personal Services,
Materials & Services, or Capital Outlay) will require prior approval by the Contracting
Officer of the District. The budget will not extend beyond June 30 of any District fiscal
year, and any un-obligated budget appropriations will lapse at that time. All costs directly
or indirectly related to this agreement shall be supported by properly executed payrolls,
time records, invoices, contracts, vouchers or other official documentation evidencing in
detail the nature and propriety of all transactions or expenditures. Contractor agrees to
provide the District, as part of Contractor's monthly billing statement, or at such other
times as may be requested by District, monthly financial information detailing the
Contractor's receipt and use of monies received pursuant to this agreement. On or
before the 30th day following the termination of this agreement, Contractor shall identify
and report to the District the prior expenditure of program monies during the agreement
period. Upon the termination of the JARC program, Contractor further agrees to
cooperate with all procedures implemented by the District to identify and account for all
monies received or disbursed, and to itemize any outstanding liabilities, if any, which
may exist upon the close of the program.
7.2 Records Maintenance. In addition to the information to be maintained by Contractor for
billing purposes, Contractor shall further maintain and preserve such records and reports
as may be required by the District to assure appropriate performance under the
provisions of this contract, and all records or documents which are required of the District
by any other governmental authority. Where appropriate, the District will provide the
Contractor with all necessary forms to be completed as part of Contractor's reporting
obligations.
7.3 Access to Contractor's Records. At any time during normal business hours, all records,
including, all books of the Contractor's business, and its records, contracts and files,
including client, program and financial records pertaining to this agreement, shall be
available and accessible to the District, the FT A, the US Comptroller General, the US
Office of Management and Budget, the US General Accounting Office, the Secretary of
State's Office of the State of Oregon, the Public Transit Section of the Oregon
Department of Transportation, or their duly authorized representatives, for the purpose of
audit or examination.
7.4 Records Retention. The Contractor shall retain all documents pertaining to this
agreement (fiscal, program and administrative) for a minimum period of three (3) years
following the termination of this agreement. If, during such three-year period, litigation is
commenced for the purpose of enforcing the obligations arising out of this agreement or
the administration of the JARC program, Contractor agrees to retain all documents until
the final completion of such litigation. Contractor further agrees to retain all documents
until the final completion of any audit or examination of its activities. The documents to
be retained by Contractor include, but are not limited to, financial records, client records
and all personnel records. Upon the termination of this agreement, or in the event that
Contractor ceases to be a provider of JARC services, Contractor agrees, upon its receipt
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
of a written request, to provide the District all documents, or copies of such documents,
related to the services provided by Contractor under this agreement.
8. PROGRAM INCOME.
8.1 Donations. The District encourages the Contractor to seek voluntary donations, or to
seek other payment from the recipients of transportation services to be applied toward
the costs of transportation services. Any funds received from or in behalf of
transportation service recipients are considered program income and shall be utilized by
Contractor to offset the cost of providing services pursuant to this agreement. Contractor
shall undertake whatever steps are necessary to insure the protection of the privacy of
each person with respect to his or her contribution. While Contractor is encouraged to
seek contributions to be applied toward the cost of administering this transportation
program, Contractor acknowledges and warrants that no qualified individual will be
denied transportation services merely because the individual is unable or unwilling to
make a voluntary donation. Contractor agrees to report any receipt or expenditure of
program income on a first in, first out basis, and all expenditures received by Contractor
as program income will be deducted from the Contractor's monthly billing statement.
8.2 All Other Donations. All other donations received for specified purposes shall be used by
the Contractor for those specified purposes.
9. AUDITS & EXAMINATIONS.
9.1 Contractor agrees to authorize, and procure an annual, independent financial audit or
review to be performed by individuals licensed as certified public accountants by the
Oregon Board of Accountancy, and who are independent of the Contractor's
management. The following steps shall be taken as part of the annual audit or
examination of Contractor's activities:
9.1.1 The audit/review report should contain a statement of all receipts and
disbursements and such report shall further identify all relevant funding
sources, including program income, and identify all other documents, books or
records, which support the final fiscal report.
9.1.2 The audit/review shall cover the Contractor's fiscal year and any other period
during which the Contractor provided services pursuant to the terms of this
agreement.
9.1.3 One (1) copy of the published audit/review report or Letter of Assurance from
the Contractor's auditor shall be submitted to the District not later than one
hundred eighty (180) days following the end of Contractor's fiscal year.
9.1.4 Contractor assumes full responsibility for payment of all audit/review costs and
such costs are a reimbursable expense pursuant to this agreement.
9.1.5 Contractors who are otherwise subject to the reporting and examination
requirements of ORS 297.405 through 297.740, "Municipal Audit Law," may
incorporate the audit requirements imposed by this agreement into a single
audit report.
9.2 Correction of Errors or Deficiencies. Contractor assumes all responsibility for the
resolution and correction of any adverse audit/review comments. If, in the opinion of the
District, a revised, supplemental audit examination report is required to demonstrate the
Contractor's prior correction of audit findings, Contractor agrees to undertake whatever
effort or expense is required to provide the District with such a supplemental report.
10. INSURANCE.
10.1 Prior to commencement of any work pursuant to this agreement, Contractor shall
procure and maintain in full force and effect during the performance of any services
hereunder:
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
.' ...
10.1.1 Automobile Liability Insurance with a combined single limit of not less than
$1,000,000 each occurrence for Bodily Injury and Property Damage, including
coverage for owned, hired or non-owned vehicles, as applicable;
10.1.2 General Liability Insurance with a combined single limit of not less than
$1,000,000 each claim, incident or occurrence. It shall include contractual
liability coverage for the indemnity provided under this contract, and shall
provide that the District and its divisions, officers and employees are Additional
Insured but only with respect to Contractor's services to be provided under this
contract.
10.1.3 Assumed contractual liability insurance for obligations assumed by Contractor
under Paragraph 11 of this agreement.
10.1.4 The Contractor, its subcontractors, if any and all employees working under this
agreement are subject employees under the Oregon Workers' Compensation
Law and shall comply with ORS 656.017, which requires them to provide
Workers' Compensation coverage for all their subject workers.
10.1.5 All contracts of insurance, with the exception of Workers' Compensation
coverage, procured by Contractor shall include the District as an additional
named insured.
10.1.6 All policies must have a thirty (30) day notice of any material changes,
cancellation or non-renewal, unless otherwise agreed to, in writing, by the
Contracting Officer.
10.1.7 Contractor shall provide the District with written documentation of insurance
coverage's in the form of a Certificate of Insurance not later than twenty-one
(21) days following the effective date of this agreement. Such certificate must
also be provided as insurance coverage is renewed during the course of the
contract. Upon the Contractor's failure to deliver such written documentation of
insurance coverage, the District may suspend, pending receipt of such
documentation, further payments under this agreement.
10.1.8 In the event a public body contractor is wholly or partially self-insured, it is
agreed that Certificates of Self-Insurance or other satisfactory evidence of the
governmental body's self-insurance program shall be accepted in lieu of the
Certificate of Insurance required under the above provisions.
10.1.9 Upon the expiration of any insurance coverage specified above, the District, at
its option, would be excused from any further obligation or duty under this
ag reement.
11. INDEMNIFICATION.
11.1 To the extent authorized by Oregon law and subject to the limitations, if applicable, of the
Oregon Constitution, Contractor shall indemnify, defend, and hold harmless District, its
officers, agents, and employees against all claims, suits or actions of any nature arising
';"I.J....\. out of the negligent acts or omissions of the Contractor, its officers, contractors, agents,
, ,or employees under this agreement.
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11.2 Notice of Claims. The Contractor shall immediately notify the District in writing of any
action, suit or proceeding filed against Contractor in any court or before any regulatory or
administrative body. Contractor shall also give prompt notice of any claim made against
the Contractor by any federal, state or local agency, subcontractor, vendor, client, or
other party, which may result in litigation related in any way to this agreement. Contractor
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008 CITY OF WOODBURN
-
shall also notify the District immediately of its intent to file for protection under the
Federal Bankruptcy Act, or to make any filing under the Federal Bankruptcy Act.
12. INDEPENDENT CONTRACTOR STATUS.
12.1 The parties acknowledge that Contractor is an independent contractor and neither
Contractor nor Contractor's employees shall in any way be deemed employees of the
District. Contractor shall have complete charge of the performance of services, with full
direction and control of Contractor's employees and with responsibility for their
compensation, hiring and discharge. Contractor shall be liable for the acts and omissions
of Contractor's agents and employees. Contractor shall pay all payroll taxes, workers
compensation insurance, unemployment insurance and other expenses connected with
Contractor's employees.
13. PERMITS & LICENSES.
13.1 Contractor shall obtain at its own expense all necessary permits, licenses or other public
authority required in connection with the performance of services under this agreement,
and shall comply with all federal, state, county and municipal laws, ordinances, rules and
regulations pertaining to the performance of transportation services.
14. SAFETY.
14.1 Contractor shall be responsible for the safety of all services performed pursuant to this
agreement, and shall maintain all necessary protection and precautions for that purpose,
shall comply with all laws and regulations affecting health and safety, and shall
immediately remedy any citation for violation of such laws and regulations, and shall
defend and hold the District harmless from any penalty, fine or liability in connection
therewith.
14.2 Contractor shall establish, maintain and enforce policies and procedures governing
minimum operating standards for vehicles, drivers and services provided under this
agreement. Contractor's policies and procedures shall be subject to approval by the
District. Contractor shall provide the District with a copy of Contractor's policies and
procedures prior to beginning services under this agreement and prior to any change to
Contractor's polices and procedures.
15. DRIVER CRIMINAL AND DMV BACKGROUND CHECK.
15.1 Drivers and applicants must be pre-qualified by the District prior to performing service for
the project. Drivers for District providers will be subject to finger printing and a criminal
records check as required by ORS 181.537.
15.2 Pre-qualification includes but is not limited to:
15.2.1 A fingerprint background records check and DMV record check. The District
will process driver personal history information, fingerprint criminal
background checks and Department of Motor Vehicle checks. Fingerprint
criminal background checks will be processed in accordance with the
procedures outlined in Exhibit C. Driver or employee must have a good
driving record as reported on a five (5) year driving record printout from the
Dept. of Motor Vehicles (DMV). It will be the contractor's responsibility to
provide an original, DMV court certified three (3) year driving record printout
(original & no older than thirty (30) days) to be submitted to the District at the
time of fingerprinting. If the applicant has resided in Oregon less than five (5)
years, they are responsible for providing the District with a copy of their driving
record from every state of residence in the past five (5) years.
15.2.2 Drivers will be qualified based on results of the fingerprint background check
and DMV check. The District will notify the Contractor in writing of the driver's
status. No driver will qualify to provide service without the District's written
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
authorization. The District at its sole discretion may determine which drivers
are qualified to provide the project service. Drivers must not have any criminal
convictions, which may, in the sole judgment of the District, render the
applicant unsuitable or unfit for employment in a position that is responsible for
providing transportation services.
15.3 Contractor must inform all drivers and applicants for driving positions under this program
that their ability to drive under this program is subject to a successful criminal background
check as determined by the District.
15.4 Driver qualifications include but are not limited to:
15.4.1 Each driver shall possess a valid Oregon or Washington Driver's License for
the class of vehicle operated and shall be trained in the proper operation of the
vehicle and its accessories.
15.4.2 The District will request a five (5) years driving record from DMV.
Disqualification will result if a driving record reflects the following:
(a) A suspension for moving violation(s) unless three (3) years have elapsed
since the end of said suspension and driver has had no moving traffic
violations during said three (3) years.
(b) More than two (2) violations in a three (3) year period.
(c) More than five (5) violations or accidents of any kind in a three (3) year
period.
(d) A serious violation in the past ten (10) year, such as, but not limited to:
reckless driving, driving under the influence of drugs or alcohol, illegal
possession of drugs or alcohol, motor vehicle used in manufacturing,
distributing, or dispensing controlled substances, hit and run, assault,
criminal mischief, reckless driving, careless driving, negligence, violation
of a motor vehicle law resulting in bodily injury, driving with suspended
license.
15.5 Criminal offenses that affect driver qualification are convictions for crimes against
public safety, property or life. In determining driver qualification, the District or its
designee will consider:
15.5.1 The nature of the crime.
15.5.2 The facts that support the conviction or pending indictment or that indicate a
false statement.
15.5.3 The relevancy of the crime or false statement to the position requirements.
15.5.4 Intervening circumstances which are relevant to the responsibilities and
circumstances of the position (examples include the passage of time, age at
time of conviction, restitution, likelihood of recurrence, subsequent conviction
of another relevant crime, or an employer's recommendation)
15.6 For offenses against property, offenses involving fraud and deception, and offenses
involving controlled substances, illegal drug cleanup, paraphernalia or precursors, the
General Manager may consider mitigating circumstances or other information in
making exceptions to the general guidelines set forth in Exhibit C.
16. ASSIGNMENT.
16.1 Contractor shall not assign, whether voluntarily or involuntarily, or by operation of law,
this agreement, or any interest therein, or subcontract any portion of the services without
the prior written consent of the District. If this provision of the agreement is violated, the
District, in addition to all other rights the District may then have, may terminate this
agreement without advance notice, and in such event Contractor shall have recovery
only for services performed prior to termination, waiving all other claims.
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" ,."..
17. COMPLIANCE WITH LAWS.
17.1 Contractor shall not discriminate against any employee or applicant for employment
because of race, color, religion, sex, or national origin. Contractor shall take affirmative
action to insure that applicants are employed and that employees are treated during
employment, without regard to their race, color, religion, sex, or national origin.
17.2 Contractor shall comply with all of the provisions of the Federal JARC statute (Pub. L.
105-178, title III, Sec. 3037, June 9, 1998, 112 Stat. 387, as amended by Pub. L. 105-
206, title IX, Sec. 9009(w), July 22, 1998, 112 Stat. 862, codified at 49 USC 5309
note) and regulations adopted from time to time there under and any other statutes,
rules, orders and policies relating to the JARC program.
17.3 This agreement is based upon and is subject to Oregon Revised Statutes, Oregon
Administrative Rules, and Federal Transit Administrative regulations and FT A Circular
9040.1 D and 5010.1 B. From time to time these laws, rules and regulations may be
amended. The District reserves the right to amend this Agreement if it is affected. The
District will provide thirty days notice of impending changes and will prepare a
supplemental Agreement incorporating the changes to be executed by the parties to this
Agreement.
18. FT A CONTRACT CLAUSES.
18.1 The Contractor agrees to include any applicable requirements in each subcontract
involving transit operations financed in whole or in part with Federal assistance
provided by FT A. FT A contract clauses are attached as Exhibit A, and as used in
Exhibit A the term, "the FTA Recipient" refers to the District. In the event of any
conflict between the provisions of this Agreement and state statutes, the state
statutes shall control. In the event of any conflict between this Agreement and the
FT A contract clauses, the FT A contract clauses shall control. Not every
requirement of the state statutes or the FT A contract clauses will apply in each
instance to the performance of each party under this particular contract. The nature
of the obligations of a party under this Agreement will determine which requirements
of state law and FTA contract clauses will apply. Requirements that do not apply
will not be enforced.
19. ORS COMPLIANCE.
19.1 In performing its obligations under this Agreement, the Contractor agrees to comply
with all applicable state laws including, without limitation, ORS 279B.200-279B.240
and 279C.540, each of which is incorporated herein by reference.
20. TERMINA liON.
20.1 This agreement shall be effective as of the date first written above and shall continue
until June 30, 2008; provided, however, that either party shall have the right, at any time,
to terminate or suspend further performance by providing the other party thirty (30) days
advance notice of its intention to do so. Upon termination, any unexpended budget
appropriations will lapse, and the funds will be retained in the local JARC program.
20.2 This agreement may be terminated at any time, with or without advance notice, due to
the non-availability of funds from JARC. The District assumes no obligation to provide
the full amount budgeted in this agreement if JARC program revenues are less than
previously anticipated.
20.3 The District by written notice of default (including breach of contract) to the Contractor
may terminate at any time the whole or any part of this agreement:
20.3.1 If the Contractor fails to provide services called for by this agreement within the
time specified herein or any extension thereof; or
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
20.3.2 If the Contractor fails to perform any of the other provisions of this agreement,
or so fails to pursue the services as to endanger performance of this
agreement in accordance with its terms, and after receipt of written notice from
the District, fails to correct such failures within ten (10) days or such longer
period as the District may authorize.
20.3.3 If any license or certificate required by law or regulation to be held by the
Contractor to provide the services required by this agreement is for any reason
denied, revoked, or not renewed.
20.4 The rights and remedies of the District provided in the above clause related to defaults
(including breach of contract) by the Contractor shall not be exclusive and are in addition
to any other rights and remedies provided by law or under this agreement.
21. WAIVER.
21.1 No waiver of any provision of this agreement shall be deemed, or shall constitute, a
waiver of any other provision, whether or not similar, or shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in writing by the party
making the waiver.
22. NOTICE.
22.1 Any notice under this agreement shall be in writing and shall be effective when actually
delivered or when deposited in the mail, registered or certified, addressed to the parties
at the following addresses:
CONTRACTOR: DISTRICT
Randy Rohman Jeff Hamm
City of Woodburn General Manager
270 Montgomery St. Salem Area Mass Transit District
Woodburn, OR 97071-4730 555 Court St NE, Suite 5230
Salem, OR 97301
or at such other addresses as either party may designate by written notice to the other.
23. DISPUTE RESOLUTION.
23.1 All disputes concerning the interpretation of this agreement, or the rights and obligations
arising from the parties' prior execution of this agreement, shall first be referred for
resolution to the individual designated by the District as the "Contracting Officer." If, upon
referral of a dispute to the Contracting Officer, a mutually satisfactory solution cannot be
achieved, the dispute shall then be referred to mediation before the District's General
Manager. If, following mediation, a solution satisfactory to both parties has not been
reached, the dispute shall then be referred to the District's agreement review board
(hereinafter "Board of Directors"). The Board of Directors shall render a final decision
regarding any dispute between the parties. Pending a final decision by the Board of
Directors, Contractor shall proceed without delay with any performance prescribed by
the order of the Contracting Officer.
23.2 In connection with any proceeding conducted pursuant to this provision, the Contractor
and District shall be afforded an opportunity to be heard and to offer evidence in support
of their respective positions.
23.3 The dispute resolution procedure outlined above shall not affect any party's right to
terminate this agreement pursuant to paragraph 20, or to pursue any other available
legal remedy.
24. SEVERABILITY.
24.1 If in any judicial proceeding a court shall refuse to enforce any prOVISIon of this
agreement, any unenforceable provision shall be deemed eliminated from this
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
agreement for purposes of such proceeding only to the extent necessary to permit the
remainder of the agreement to be enforced in such proceeding.
25. PRIOR AGREEMENTS.
25.1 This agreement is the entire agreement between the parties pertaining to its subject
matter and supersedes all prior agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this agreement shall be binding
unless executed in writing by all parties.
26. JURISDICTION.
26.1 The jurisdiction of any suit or action instituted in connection with any controversy arising
out of this agreement shall be limited to the State of Oregon.
27. GOVERNING LAW.
27.1 This agreement shall be governed by and construed in accordance with the laws of the
State of Oregon.
28. ATTORNEY FEES.
28.1 In the event of suit or action to enforce the rights of either Contractor or District, the court
may allow a reasonable attorney's fee to the prevailing party of the suit or action, or
appeal there from.
29. EXHIBITS.
29.1 All exhibits referred to in this agreement are incorporated and made a part of this
agreement.
30. COUNTERPARTS.
30.1 This agreement may be executed in two (2) or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
31. COMPLIANCE WITH TAX LAWS
31.1 ORS 305.385(6) states: No contract or other agreement for the purpose of providing
goods, services or real estate space to any agency shall be entered into, renewed or
extended with any person, unless the person certifies in writing under penalty of perjury,
that the person is, to the best of the person's knowledge, not in violation of any tax laws
described in ORS 305.380(4).
31.2 By signature on this contract, Contractor hereby swears/affirms, under penalty of perjury
as provided in ORS 350.385(6) that to the best of Contractor's knowledge Contractor is
not in violation of any of the tax laws described in ORS 305.380(4).
32. DBE
32.1 This contract is subject to the requirements of Title 49, Code of Federal Regulations,
Part 26, Participation by Disadvantaged Business Enterprises in Department of
Transportation Financial Assistance Programs. The national goal for participation of
Disadvantaged Business Enterprises (DBE) is 10%. The District's overall goal for DBE
participation is 4.42%. A separate contract goal has not been established for this
contract.
32.2 The contractor shall not discriminate on the basis of race, color, national origin, or sex in
the performance of this contract. The contractor shall carry out applicable requirements
of 49 CFR Part 26 in the award and administration of this DOT-assisted contract. Failure
by the contractor to carry out these requirements is a material breach of this contract,
which may result in the termination of this contract or such other remedy as the District
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008 CITY OF WOODBURN
..
deems appropriate. Each subcontract the contractor signs with a subcontractor must
include the assurance in this paragraph (see 49 CFR 26.13(b)).
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" , ,......
IN WITNESS WHEREOF, the parties have executed this agreement in duplicate, effective on the
date first written above.
CONTRACTOR:
CITY OF WOODBURN
By:
Signature
JQhn C Bro'.rn Cit.y l\.dminiotr:1tor
Name & Title .,
DISTRICT:
SALEM AREA MASS TRANSIT DISTRICT
I
LEGAL COUNSEL:
By:
Ben C. Fetherston, Jr., Att
ATTACHMENTS
EXHIBIT A - FTA contract Requirements
EXHIBIT B - Monthly Reimbursement Report
EXHIBIT C - General Guidelines for Crimes Affecting Fitness for Driver Qualifications
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FEDERAL TRANSIT ADMINISTRATION
1. FLY AMERICA REQUIREMENTS
49 U.S.C. ~ 40118
41 CFR Part 301-10
Fly America Requirements
The Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in accordance with
the General Services Administration's regulations at 41 CFR Part 301-10, which provide that
recipients and subrecipients of Federal funds and their contractors are required to use U.S. Flag air
carriers for U.S Government-financed international air travel and transportation of their personal
effects or property, to the extent such service is available, unless travel by foreign air carrier is a
matter of necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign air
carrier was used, an appropriate certification or memorandum adequately explaining why service
by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and
shall, in any event, provide a certificate of compliance with the Fly America requirements. The
Contractor agrees to include the requirements of this section in all subcontracts that may involve
international air transportation.
2. BUY AMERICA REQUIREMENTS
49 U.S.C. 5323(j)
49 CFR Part 661
Buy America - The contractor agrees to comply with 49 U.S.C. 53230) and 49 CFR Part 661,
which provide that Federal funds may not be obligated unless steel, iron, and manufactured
products used in FT A-funded projects are produced in the United States, unless a waiver has been
granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 CFR
661.7, and include final assembly in the United States for 15 passenger vans and 15 passenger
wagons produced by Chrysler Corporation, microcomputer equipment, software, and small
purchases (currently less than $100,000) made with capital, operating, or planning funds. Separate
requirements for rolling stock are set out at 5323U)(2)(C) and 49 CFR 661.11. Rolling stock not
subject to a general waiver must be manufactured in the United States and have a 60 percent
domestic content.
A bidder or offeror must submit to the FT A recipient the appropriate Buy America certification
(below) with all bids on FTA-funded contracts, except those subject to a general waiver. Bids or
offers that are not accompanied by a completed Buy America certification must be rejected as
nonresponsive. This requirement does not apply to lower tier subcontractors.
Certification requirement for procurement of steel, iron, or manufactured products.
Certificate of Compliance with 49 US. C. 5323(j)(1)
The bidder or offeror hereby certifies that it will meet the requirements of 49 U.S.C. 5323U)(1) and
the applicable regulations in 49 CFR Part 661.
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Date
Signature
Company Name
Title
Certificate of Non-Compliance with 49 US.C. 5323(j)(1)
The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C.
5323U)(1), but it may qualify for an exception pursuant to 49 U.S.C. 5323U)(2)(B) or O)(2)(D) and
the regulations in 49 CFR 661.7.
Date
Signature
Company Name
Title
Certification requirement for procurement of buses, other rolling stock and associated
equipment.
Certificate of Compliance with 49 US. C. 5323(j)(2)(C).
The bidder or offeror hereby certifies that it will comply with the requirements of 49 U.S.C.
53230)(2)(C) and the regulations at 49 CFR Part 661.
Date
Signature
Company Name
Title
Certificate of Non-Compliance with 49 US. C. 5323(j)(2)(C)
The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C.
5323U)(2)(C), but may qualify for an exception pursuant to 49 U.S.C. 53230)(2)(8) or U)(2)(D) and
the regulations in 49 CFR 661.7.
Date
Signature
Company Name
Title
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"., ...,.
..
3. CHARTER BUS REQUIREMENTS
49 U.S.C. 5323(d)
49 CFR Part 604
Charter Service Operations - The contractor agrees to comply with 49 U.S.C. 5323(d) and 49
CFR Part 604, which provides that recipients and subrecipients of FT A assistance are prohibited
from providing charter service using federally funded equipment or facilities if there is at least one
private charter operator willing and able to provide the service, except under one of the exceptions
at 49 CFR 604.9. Any charter service provided under one of the exceptions must be "incidental,"
i.e., it must not interfere with or detract from the provision of mass transportation.
3. SCHOOL BUS REQUIREMENTS
49 U.S.C. 5323(F)
49 CFR Part 605
School Bus Operations - Pursuant to 69 U.S.C. 5323(f) and 49 CFR Part 605, recipients and
subrecipients of FT A assistance may not engage in school bus operations exclusively for the
transportation of students and school personnel in competition with private school bus operators
unless qualified under specified exemptions. When operating exclusive school bus service under
an allowable exemption, recipients and subrecipients may not use federally funded equipment,
vehicles, or facilities.
4. CARGO PREFERENCE REQUIREMENTS
46 U.S.C. 1241
46 CFR Part 381
Cargo Preference - Use of United States-Flag Vessels - The contractor agrees: a. to use
privately owned United States-Flag commercial vessels to ship at least 50 percent of the gross
tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved,
whenever shipping any equipment, material, or commodities pursuant to this contract to the extent
such vessels are available at fair and reasonable rates for United States-Flag commercial vessels;
b. to furnish within 20 working days following the date of loading for shipments originating within
the United States or within 30 working days following the date of leading for shipments originating
outside the United States, a legible copy of a rated, "on-board" commercial ocean bill-of -lading in
English for each shipment of cargo described in the preceding paragraph to the Division of
National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590
and to the FTA recipient (through the contractor in the case of a subcontractor's bill-of-Iading.) c. to
include these requirements in all subcontracts issued pursuant to this contract when the
subcontract may involve the transport of equipment, material, or commodities by ocean vessel.
5. SEISMIC SAFETY REQUIREMENTS
42 U.S.C. 7701 et seq. 49
CFR Part 41
Seismic Safety - The contractor agrees that any new building or addition to an existing building
will be designed and constructed in accordance with the standards for Seismic Safety required in
Department of Transportation Seismic Safety Regulations 49 CFR Part 41 and will certify to
compliance to the extent required by the regulation. The contractor also agrees to ensure that all
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
...
work performed under this contract including work performed by a subcontractor is in compliance
with the standards required by the Seismic Safety Regulations and the certification of compliance
issued on the project.
6. ENERGY CONSERVATION REQUIREMENTS
42 U.S.C. 6321 et seq.
49 CFR Part 18
Energy Conservation - The contractor agrees to comply with mandatory standards and policies
relating to energy efficiency which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act.
7. CLEAN WATER REQUIREMENTS
33 U.S.C. 1251
Clean Water - (1) The Contractor agrees to comply with all applicable standards, orders or
regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C.
1251 et seQ . The Contractor agrees to report each violation to the Purchaser and understands and
agrees that the Purchaser will, in turn, report each violation as required to assure notification to
FTA and the appropriate EPA Regional Office.
(2) The Contractor also agrees to include these requirements in each subcontract exceeding
$100,000 financed in whole or in part with Federal assistance provided by FTA.
8. BUS TESTING
49 U.S.C. 5323{c)
49 CFR Part 665
The Bus Testing requirements pertain only to the acquisition of Rolling StocklTurnkey.
The Bus Testing requirements should not flow down, except to the turnkey contractor as stated in
Master Agreement.
Bus Testing - The Contractor agrees to comply with 49 U.S.C. A 5323(c) and FTA's implementing
regulation at 49 CFR Part 665 and shall perform the following:
1) A manufacturer of a new bus model or a bus produced with a major change in components or
configuration shall provide a copy of the final test report to the recipient at a point in the
procurement process specified by the recipient which will be prior to the recipient's final
acceptance of the first vehicle.
2) A manufacturer who releases a report under paragraph 1 above shall provide notice to the
operator of the testing facility that the report is available to the public.
3) If the manufacturer represents that the vehicle was previously tested, the vehicle being sold
should have the identical configuration and major components as the vehicle in the test report,
which must be provided to the recipient prior to recipient's final acceptance of the first vehicle. If the
configuration or components are not identical, the manufacturer shall provide a description of the
change and the manufacturer's basis for concluding that it is not a major change requiring
additional testing.
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
j, '......
4) If the manufacturer represents that the vehicle is "grandfathered" (has been used in mass transit
service in the United States before October 1, 1988, and is currently being produced without a
major change in configuration or components), the manufacturer shall provide the name and
address of the recipient of such a vehicle and the details of that vehicle's configuration and major
components.
CERTIFICATION OF COMPLIANCE WITH FTA'S BUS TESTING REQUIREMENTS
The undersigned Contractor certifies that the vehicle offered in this procurement complies with 49
U.S.C. A 5323(c) and FTA's implementing regulation at 49 CFR Part 665.
The undersigned understands that misrepresenting the testing status of a vehicle acquired with
Federal financial assistance may subject the undersigned to civil penalties as outlined in the
Department of Transportation's regulation on Program Fraud Civil Remedies, 49 CFR Part 31. In
addition, the undersigned understands that FT A may suspend or debar a manufacturer under the
procedures in 49 CFR Part 29.
Date:
Signature:
Company Name:
Title:
9. PRE-AWARD AND POST DELIVERY AUDITS REQUIREMENTS
49 U.S.C. 5323
49 CFR Part 663
These requirements apply only to the acquisition of Rolling StocklTurnkey.
These requirements should not flow down, except to the turnkey contractor as stated in Master
Agreement.
- Buy America certification is mandated under FT A regulation, "Pre-Award and Post-Delivery
Audits of Rolling Stock Purchases," 49 C. F. R. 663.13.
-- Specific language for the Buy America certification is mandated by FTA regulation,
"Buy America Requirements--Surface Transportation Assistance Act of 1982, as amended,"
49 C. F. R. 661.12, but has been modified to include FT A's Buy America requirements codified at 49
U.S.C. A 53230).
Pre-Award and Post-Delivery Audit Requirements - The Contractor agrees to comply with 49
U.S.C. 95323(1) and FTA's implementing regulation at 49 C.F.R. Part 663 and to submit the
following certifications:
(1) Buy America Requirements: The Contractor shall complete and submit a declaration certifying
either compliance or noncompliance with Buy America. If the Bidder/Offeror certifies compliance
with Buy America, it shall submit documentation which lists 1) component and subcomponent parts
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
...
of the rolling stock to be purchased identified by manufacturer of the parts, their country of origin
and costs; and 2) the location of the final assembly point for the rolling stock, including a
description of the activities that will take place at the final assembly point and the cost of final
assembly.
(2) Solicitation Specification Requirements: The Contractor shall submit evidence that it will be
capable of meeting the bid specifications.
(3) Federal Motor Vehicle Safety Standards (FMVSS): The Contractor shall submit 1)
manufacturer's FMVSS self-certification sticker information that the vehicle complies with relevant
FMVSS or 2) manufacturer's certified statement that the contracted buses will not be subject to
FMVSS regulations.
BUY AMERICA CERTIFICATE OF COMPLIANCE WITH FTA REQUIREMENTS
FOR BUSES, OTHER ROLLING STOCK, OR ASSOCIATED EQUIPMENT
(To be submitted with a bid or offer exceeding the small purchase threshold for Federal assistance
programs, currently set at $100,000.)
Certificate of Compliance
The bidder hereby certifies that it will comply with the requirements of 49 U.S.C. Section
53230)(2)(C), Section 165(b)(3) of the Surface Transportation Assistance Act of 1982, as
amended, and the regulations of 49 C.F.R. 661.11:
Date:
Signature:
Company Name:
Title:
Certificate of Non-Compliance
The bidder hereby certifies that it cannot comply with the requirements of 49 U.S.C. Section
5323(j)(2)(C) and Section 165(b)(3) of the Surface Transportation Assistance Act of 1982, as
amended, but may qualify for an exception to the requirements consistent with 49 U.S.C. Sections
5323(j)(2)(B) or (j)(2)(D), Sections 165(b)(2) or (b)(4) of the Surface Transportation Assistance Act,
as amended, and regulations in 49 C.F.R. 661.7.
Date:
Signature:
Company Name:
Title:
10. LOBBYING
31 U.S.C. 1352
49 CFR Part 19
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
49 CFR Part 20
Mandatorv Clause/Lanauaae
_ Clause and specific language therein are mandated by 49 CFR Part 19, Appendix A.
Modifications have been made to the Clause pursuant to Section 10 of the Lobbying Disclosure Act
of 1995, P.L. 104-65 [to be codified at 2 U.S.C. S 1601, et seq.]
_ Lobbying Certification and Disclosure of Lobbying Activities for third party contractors are
mandated by 31 U.S.C. 1352(b)(5), as amended by Section 10 of the Lobbying Disclosure Act of
1995, and DOT implementing regulation, "New Restrictions on Lobbying," at 49 CFR S 20.110(d)
_ Language in Lobbying Certification is mandated by 49 CFR Part 19, Appendix A, Section 7, which
provides that contractors file the certification required by 49 CFR Part 20, Appendix A.
Modifications have been made to the Lobbying Certification pursuant to Section 10 of the Lobbying
Disclosure Act of 1995.
_ Use of "Disclosure of Lobbying Activities," Standard Form-LLL set forth in Appendix B of 49 CFR
Part 20, as amended by "Government wide Guidance For New Restrictions on Lobbying," 61 Fed.
Reg. 1413 (1/19/96) is mandated by 49 CFR Part 20, Appendix A.
Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure
Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. ~ 1601, et seq.] - Contractors who apply or
bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New
Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used
Federal appropriated funds to pay any person or organization for influencing or attempting to
influence an officer or employee of any agency, a member of Congress, officer or employee of
Congress, or an employee of a member of Congress in connection with obtaining any Federal
contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the
name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying
contacts on its behalf with non-Federal funds with respect to that Federal contract, grant or award
covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient.
APPENDIX A, 49 CFR PART 20--CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements
(To be submitted with each bid or offer exceeding $100,000)
The undersigned Contractor certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or employee of an
agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with the awarding of any Federal contract, the making of any Federal
grant, the making of any Federal loan, the entering into of any cooperative agreement, and the
extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan,
or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person
for making lobbying contacts to an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress in connection with this
Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and
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CITY OF WOODBURN
submit Standard Form--LLL, "Disclosure Form to Report Lobbying," in accordance with its
instructions [as amended by "Government wide Guidance for New Restrictions on Lobbying," 61
Fed. Reg. 1413 (1/19/96). Note: Language in paragraph (2) herein has been modified in
accordance with Section 10 of the Lobbying Disclosure Act of 1995 (P.L. 104-65, to be codified at
2 U.S.C. 1601, et seq .)]
(3) The undersigned shall require that the language of this certification be included in the award
documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose
accordingly.
This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for making
or entering into this transaction imposed by 31, U.S.C. S 1352 (as amended by the Lobbying
Disclosure Act of 1995). Any person who fails to file the required certification shall be subject to a
civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
[Note: Pursuant to 31 U.S.C. S 1352(c)(1)-(2)(A), any person who makes a prohibited expenditure
or fails to file or amend a required certification or disclosure form shall be subject to a civil penalty
of not less than $10,000 and not more than $100,000 for each such expenditure or failure.]
The Contractor, ' certifies or affirms the truthfulness and accuracy of each
statement of its certification and disclosure, if any. In addition, the Contractor understands and
agrees that the provisions of 31 U.S.C. A 3801, et seq., apply to this certification and disclosure, if
any.
Signature of Contractor's Authorized Official
Name and Title of Contractor's Authorized Official
Date
11. ACCESS TO RECORDS AND REPORTS
49 U.S.C. 5325
18 CFR 18.36 (i)
49 CFR 633.17
Access to Records - The following access to records requirements apply to this Contract:
1. Where the Purchaser is not a State but a local government and is the FT A Recipient or a
subgrantee of the FTA Recipient in accordance with 49 C. F. R. 18.36(i), the Contractor agrees to
provide the Purchaser, the FTA Administrator, the Comptroller General of the United States or any
of their authorized representatives access to any books, documents, papers and records of the
Contractor which are directly pertinent to this contract for the purposes of making audits,
examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C. F. R. 633.17
to provide the FT A Administrator or his authorized representatives including any PMO Contractor
access to Contractor's records and construction sites pertaining to a major capital project, defined
at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs
described at 49 U.S.C. 5307, 5309 or 5311.
2. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA Recipient
in accordance with 49 C.F.R. 633.17, Contractor agrees to provide the Purchaser, the FTA
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CITY OF WOODBURN
Administrator or his authorized representatives, including any PMO Contractor, access to the
Contractor's records and construction sites pertaining to a major capital project, defined at 49
U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at
49 U.S.C. 5307, 5309 or 5311. By definition, a major capital project excludes contracts of less than
the simplified acquisition threshold currently set at $100,000.
3. Where the Purchaser enters into a negotiated contract for other than a small purchase or under
the simplified acquisition threshold and is an institution of higher education, a hospital or other non-
profit organization and is the FT A Recipient or a subgrantee of the FT A Recipient in accordance
with 49 C.F.R. 19.48, Contractor agrees to provide the Purchaser, FTA Administrator, the
Comptroller General of the United States or any of their duly authorized representatives with
access to any books, documents, papers and record of the Contractor which are directly pertinent
to this contract for the purposes of making audits, examinations, excerpts and transcriptions.
4. Where any Purchaser which is the FT A Recipient or a subgrantee of the FT A Recipient in
accordance with 49 U.S.C. 5325(a) enters into a contract for a capital project or improvement
(defined at 49 U.S.C. 5302(a)1) through other than competitive bidding, the Contractor shall make
available records related to this contractto the Purchaser, the Secretary of Transportation and the
Comptroller General or any authorized officer or employee of any of them for the purposes of
conducting an audit and inspection.
5. The Contractor agrees to permit any of the foregoing parties to reproduce by any means
whatsoever or to copy excerpts and transcriptions as reasonably needed.
6. The Contractor agrees to maintain all books, records, accounts and reports required under this
contract for a period of not less than three years after the date of termination or expiration of this
contract, except in the event of litigation or settlement of claims arising from the performance of this
contract, in which case Contractor agrees to maintain same until the Purchaser, the FT A
Administrator, the Comptroller General, or any of their duly authorized representatives, have
disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR
18.39(i)(11 ).
7. FT A does not require the inclusion of these requirements in subcontracts.
Sources of Authority:
149 USC 5325 (a)
249 CFR 633.17
318 CFR 18.36 (i)
12. FEDERAL CHANGES
49 CFR Part 18
Federal Changes - Contractor shall at all times comply with all applicable FT A regulations,
policies, procedures and directives, including without limitation those listed directly or by reference
in the Agreement (Form FTA MA (7) dated October, 2000) between Purchaser and FTA , as they
may be amended or promulgated from time to time during the term of this contract. Contractor's
failure to so comply shall constitute a material breach of this contract.
13. BONDING REQUIREMENTS
Applicabilitv to Contracts -
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...
For those construction or facility improvement contracts or subcontracts exceeding
$100,000, FT A may accept the bonding policy and requirements of the FT A Recipient,
provided that they meet the minimum requirements for construction contracts as follows:
a. A bid guarantee from each bidder equivalent to five (5) percent of the bid price. The "bid
guarantees" shall consist of a firm commitment such as a bid bond, certifies check, or other
negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of
his bid, execute such contractual documents as may be required within the time specified.
b. A performance bond on the part to the Contractor for 100 percent of the contract price. A
"performance bond" is one executed in connection with a contract to secure fulfillment of all the
contractor's obligations under such contract.
c. A payment bond on the part of the contractor for 100 percent of the contract price. A "payment
bond" is one executed in connection with a contract to assure payment, as required by law, of all
persons supplying labor and material in the execution of the work provided for in the contract.
Payment bond amounts required from Contractors are as follows:
(1) 50% of the contract price if the contract price is not more than $1 million;
(2) 40% of the contract price if the contract price is more than $1 million but not more than $5
million; or
(3) $2.5 million if the contract price is more than $5 million.
d. A cash deposit, certified check or other negotiable instrument may be accepted in lieu of
performance and payment bonds, provided the FT A Recipient has established a procedure to
assure that the interest of FTA is adequately protected. An irrevocable letter of credit would also
satisfy the requirement for a bond.
Flow Down
Bonding requirements flow down to the first tier contractors.
Bid Bond Requirements (Construction)
(a) Bid Security
A Bid Bond must be issued by a fully qualified surety company acceptable to the FTA Recipient
and listed as a company currently authorized under 31 CFR, Part 223 as possessing a Certificate
of Authority as described there under.
(b) Rights Reserved
In submitting this Bid, it is understood and agreed by bidder that the right is reserved by the FTA
Recipient to reject any and all bids, or part of any bid, and it is agreed that the Bid may not be
withdrawn for a period of ninety (90) days subsequent to the opening of bids, without the written
consent of the FT A Recipient.
It is also understood and agreed that if the undersigned bidder should withdraw any part or all of
his bid within ninety (90) days after the bid opening without the written consent of the FT A
Recipient, shall refuse or be unable to enter into this Contract, as provided above, or refuse or be
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008 CITY OF WOODBURN
,....
unable to furnish adequate and acceptable Performance Bonds and Labor and Material Payments
Bonds, as provided above, or refuse or be unable to furnish adequate and acceptable insurance,
as provided above, he shall forfeit his bid security to the extent of FTA Recipient's damages
occasioned by such withdrawal, or refusal, or inability to enter into an agreement, or provide
adequate security therefore.
It is further understood and agreed that to the extent the defaulting bidder's Bid Bond, Certified
Check, Cashier's Check, Treasurer's Check, and/or Official Bank Check (excluding any income
generated thereby which has been retained by the FT A Recipient as provided in "Bid Security" of
the Instructions to Bidders) shall prove inadequate to fully recompense the FTA Recipient for the
damages occasioned by default, then the undersigned bidder agrees to indemnify the FT A
Recipient and pay over to the FT A Recipient the difference between the bid security and FT A
Recipient's total damages, so as to make the FT A Recipient whole.
The undersigned understands that any material alteration of any of the above or any of the material
contained on this form, other than that requested will render the bid unresponsive.
Performance and Payment Bonding Requirements (Construction)
The Contractor shall be required to obtain performance and payment bonds as follows:
(a) Performance bonds
1. The penal amount of performance bonds shall be 100 percent of the original contract price,
unless the FT A Recipient determines that a lesser amount would be adequate for the protection of
the FT A Recipient.
2. The FTA Recipient may require additional performance bond protection when a contract price is
increased. The increase in protection shall generally equal 100 percent of the increase in contract
price. The FT A Recipient may secure additional protection by directing the Contractor to increase
the penal amount of the existing bond or to obtain an additional bond.
(b) Payment bonds
1. The penal amount of the payment bonds shall equal:
(i) Fifty percent of the contract price if the contract price is not more than $1 million.
(ii) Forty percent of the contract price if the contract price is more than $1 million but not more than
$5 million; or
(iii) Two and one half million if the contract price is more than $5 million.
2. If the original contract price is $5 million or less, the FTA Recipient may require additional
protection as required by subparagraph 1 if the contract price is increased.
Performance and Payment Bonding Requirements (Non-Construction)
The Contractor may be required to obtain performance and payment bonds when necessary to
protect the FT A Recipient's interest.
(a) The following situations may warrant a performance bond:
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1. the FT A Recipient property or funds are to be provided to the contractor for use in performing
the contract or as partial compensation (as in retention of salvaged material).
2. A contractor sells assets to or merges with another concern, and the FT A Recipient, after
recognizing the latter concern as the successor in interest, desires assurance that it is financially
capable.
3. Substantial progress payments are made before delivery of end items starts.
4. Contracts are for dismantling, demolition, or removal of improvements.
(b) When it is determined that a performance bond is required, the Contractor shall be required to
obtain performance bonds as follows:
1. The penal amount of performance bonds shall be 100 percent of the original contract price,
unless the FT A Recipient determines that a lesser amount would be adequate for the protection of
the FT A Recipient.
2. The FT A Recipient may require additional performance bond protection when a contract price is
increased. The increase in protection shall generally equal 100 percent of the increase in contract
price. The FT A Recipient may secure additional protection by directing the Contractor to increase
the penal amount of the existing bond or to obtain an additional bond.
(c) A payment bond is required only when a performance bond is required, and if the use of
payment bond is in the FT A Recipient's interest.
(d) When it is determined that a payment bond is required, the Contractor shall be required to
obtain payment bonds as follows:
1. The penal amount of payment bonds shall equal:
(i) Fifty percent of the contract price if the contract price is not more than $1 million;
(ii) Forty percent of the contract price if the contract price is more than $1 million but not more than
$5 million; or
(iii) Two and one half million if the contract price is increased.
Advance Payment Bonding Requirements
The Contractor may be required to obtain an advance payment bond if this contractcontains an
advance payment provision and a performance bond is not furnished. The FT A Recipient shall
determine the amount of the advance payment bond necessary to protect the FT A Recipient.
Patent Infringement Bonding Requirements (Patent Indemnity)
The Contractor may be required to obtain a patent indemnity bond if a performance bond is not
furnished and the financial responsibility of the Contractor is unknown or doubtful. The FT A
Recipient shall determine the amount of the patent indemnity to protect the FT A Recipient.
Warranty of the Work and Maintenance Bonds
1. The Contractor warrants to the FT A Recipient, the Architect and/or Engineer that all materials
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" ......
and equipment furnished under this Contract will be of highest quality and new unless otherwise
specified by the FT A Recipient, free from faults and defects and in conformance with this contract.
All work not so conforming to these standards shall be considered defective. If required by the FT A
Recipient, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials
and equipment.
2. The Work furnished must be of first quality and the workmanship must be the best obtainable in
the various trades. The Work must be of safe, substantial and durable construction in all respects.
The Contractor hereby guarantees the Work against defective materials or faulty workmanship for
a minimum period of one (1) year after Final Payment by the FTA Recipient and shall replace or
repair any defective materials or equipment or faulty workmanship during the period of the
guarantee at no cost to the FTA Recipient. As additional security for these guarantees, the
Contractor shall, prior to the release of Final Payment, furnish separate Maintenance (or
Guarantee) Bonds in form acceptable to the FTA Recipient written by the same corporate surety
that provides the Performance Bond and Labor and Material Payment Bond for this Contract.
These bonds shall secure the Contractor's obligation to replace or repair defective materials and
faulty workmanship for a minimum period of one (1) year after Final Payment and shall be written
in an amount equal to ONE HUNDRED PERCENT (100%) of the CONTRACT SUM, as adjusted (if
at all).
14. CLEAN AIR
42 U.S.C. 7401 et seq
40 CFR 15.61
49 CFR Part 18
Clean Air - (1) The Contractor agrees to comply with all applicable standards, orders or regulations
issued pursuant to the Clean Air Act, as amended, 42 U.S.C. 997401 et sea. The Contractor
agrees to report each violation to the Purchaser and understands and agrees that the Purchaser
will, in turn, report each violation as required to assure notification to FT A and the appropriate EPA
Regional Office.
(2) The Contractor also agrees to include these requirements in each subcontract exceeding
$100,000 financed in whole or in part with Federal assistance provided by FTA.
15. RECYCLED PRODUCTS
42 U.S.C. 6962
40 CFR Part 247
Executive Order 12873
Recovered Materials - The contractor agrees to comply with all the requirements of Section 6002
of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including
but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as
they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247.
16. DAVIS-BACON ACT
40 USC ~ 167; 276a -276a-5 (1998)
29 CFR ~ 5 (1999)
Applies to construction contracts over $2,000.00 and requirements apply to third party contractors
and subcontractors
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..
(The language in this clause is mandated under the DOL regulations at 29 C.F.R. 95.5.)
(1) Minimum wages - (i) All laborers and mechanics employed or working upon the site of the
work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the
construction or development of the project), will be paid unconditionally and not less often than
once a week, and without subsequent deduction or rebate on any account (except such payroll
deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland
Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents
thereof) due at time of payment computed at rates not less than those contained in the wage
determination of the Secretary of Labor which is attached hereto and made a part hereof,
regardless of any contractual relationship which may be alleged to exist between the contractor
and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section
1 (b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to
such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also,
regular contributions made or costs incurred for more than a weekly period (but not less often than
quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to
be constructively made or incurred during such weekly period. Such laborers and mechanics shall
be paid the appropriate wage rate and fringe benefits on the wage determination for the
classification of work actually performed, without regard to skill, except as provided in 29 CFR Part
5.5(a)(4). Laborers or mechanics performing work in more than one classification may be
compensated at the rate specified for each classification for the time actually worked therein:
Provided, That the employer's payroll records accurately set forth the time spent in each
classification in which work is performed. The wage determination and the Davis-Bacon poster
(WH-1321) shall be posted at all times by the contractor and its subcontractors at the site of the
work in a prominent and accessible place where it can be easily seen by the workers.
(ii)(A) The contracting officer shall require that any class of laborers or mechanics, including
helpers, which is not listed in the wage determination and which is to be employed under the
contract shall be classified in conformance with the wage determination. The contracting officer
shall approve an additional classification and wage rate and fringe benefits therefore only when the
following criteria have been met:
(1) Except with respect to helpers as defined as 29 CFR 5.2(n)(4), the work to be performed by the
classification requested is not performed by a classification in the wage determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable
relationship to the wage rates contained in the wage determination; and
(4) With respect to helpers as defined in 29 CFR 5.2(n)(4), such a classification prevails in the area
in which the work is performed.
(B) If the contractor and the laborers and mechanics to be employed in the classification (if known),
or their representatives, and the contracting officer agree on the classification and wage rate
(including the amount designated for fringe benefits where appropriate), a report of the action
taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division,
Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The
Administrator, or an authorized representative, will approve, modify, or disapprove every additional
classification action within 30 days of receipt and so advise the contracting officer or will notify the
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-
...
contracting officer within the 30-day period that additional time is necessary.
(C) In the event the contractor, the laborers or mechanics to be employed in the classification or
their representatives, and the contracting officer do not agree on the proposed classification and
wage rate (including the amount designated for fringe benefits, where appropriate), the contracting
officer shall refer the questions, including the views of all interested parties and the
recommendation of the contracting officer, to the Administrator for determination. The
Administrator, or an authorized representative, will issue a determination within 30 days of receipt
and so advise the contracting officer or will notify the contracting officer within the 30-day period
that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs
(a)(1)(ii) (B) or (C) of this section, shall be paid to all workers performing work in the classification
under this contract from the first day on which work is performed in the classification.
(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or
mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall
either pay the benefit as stated in the wage determination or shall pay another bona fide fringe
benefit or an hourly cash equivalent thereof.
(iv) If the contractor does not make payments to a trustee or other third person, the contractor may
consider as part of the wages of any laborer or mechanic the amount of any costs reasonably
anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the
Secretary of Labor has found, upon the written request of the contractor, that the applicable
standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the
contractor to set aside in a separate account assets for the meeting of obligations under the plan or
program.
(v)(A) The contracting officer shall require that any class of laborers or mechanics which is not
listed in the wage determination and which is to be employed under the contract shall be classified
in conformance with the wage determination. The contracting officer shall approve an additional
classification and wage rate and fringe benefits therefor only when the following criteria have been
met:
(1) The work to be performed by the classification requested is not performed by a classification in
the wage determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable
relationship to the wage rates contained in the wage determination.
(B) If the contractor and the laborers and mechanics to be employed in the classification (if known),
or their representatives, and the contracting officer agree on the classification and wage rate
(including the amount designated for fringe benefits where appropriate), a report of the action
taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division,
Employment Standards Administration, Washington, DC 20210. The Administrator, or an
authorized representative, will approve, modify, or disapprove every additional classification action
within 30 days of receipt and so advise the contracting officer or will notify the contracting officer
within the 30-day period that additional time is necessary.
(C) In the event the contractor, the laborers or mechanics to be employed in the classification or
their representatives, and the contracting officer do not agree on the proposed classification and
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wage rate (including the amount designated for fringe benefits, where appropriate), the contracting
officer shall refer the questions, including the views of all interested parties and the
recommendation of the contracting officer, to the Administrator for determination. The
Administrator, or an authorized representative, will issue a determination with 30 days of receipt
and so advise the contracting officer or will notify the contracting officer within the 30-day period
that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs
(a)(1 )(v) (B) or (C) of this section, shall be paid to all workers performing work in the classification
under this contract from the first day on which work is performed in the classification.
(2) Withholding - The FT A Recipient shall upon its own action or upon written request of an
authorized representative of the Department of Labor withhold or cause to be withheld from the
contractor under this contract or any other Federal contract with the same prime contractor, or any
other federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is
held by the same prime contractor, so much of the accrued payments or advances as may be
considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers,
employed by the contractor or any subcontractor the full amount of wages required by the contract.
In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper,
employed or working on the site of the work (or under the United States Housing Act of 1937 or
under the Housing Act of 1949 in the construction or development of the project), all or part of the
wages required by the contract, the FTA Recipient may, after written notice to the contractor,
sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of
any further payment, advance, or guarantee of funds until such violations have ceased.
(3) Payrolls and basic records - (i) Payrolls and basic records relating thereto shall be maintained
by the contractor during the course of the work and preserved for a period of three years thereafter
for all laborers and mechanics working at the site of the work (or under the United States Housing
Act of 1937, or under the Housing Act of 1949, in the construction or development of the project).
Such records shall contain the name, address, and social security number of each such worker, his
or her correct classification, hourly rates of wages paid (including rates of contributions or costs
anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in
section 1 (b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions
made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR
5.5(a)(1 )(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably
anticipated in providing benefits under a plan or program described in section 1 (b)(2)(B) of the
Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide
such benefits is enforceable, that the plan or program is financially responsible, and that the plan
or program has been communicated in writing to the laborers or mechanics affected, and records
which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors
employing apprentices or trainees under approved programs shall maintain written evidence of the
registration of apprenticeship programs and certification of trainee programs, the registration of the
apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.
(ii)(A) The contractor shall submit weekly for each week in which any contract work is performed a
copy of all payrolls to the FT A Recipient for transmission to the Federal Transit Administration. The
payrolls submitted shall set out accurately and completely all of the information required to be
maintained under 29 CFR part 5. This information may be submitted in any form desired. Optional
Form WH-347 is available for this purpose and may be purchased from the Superintendent of
Documents (Federal Stock Number 029-005-00014-1), U.S. Government Printing Office,
Washington, DC 20402. The prime contractor is responsible for the submission of copies of
payrolls by all subcontractors.
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,.-
..
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the
contractor or subcontractor or his or her agent who pays or supervises the payment of the persons
employed under the contract and shall certify the following:
(1) That the payroll for the payroll period contains the information required to be maintained under
29 CFR part 5 and that such information is correct and complete;
(2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on
the contract during the payroll period has been paid the full weekly wages earned, without rebate,
either directly or indirectly, and that no deductions have been made either directly or indirectly from
the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR part
3'
,
(3) That each laborer or mechanic has been paid not less than the applicable wage rates and
fringe benefits or cash equivalents for the classification of work performed, as specified in the
applicable wage determination incorporated into the contract.
(C) The weekly submission of a properly executed certification set forth on the reverse side of
Optional Form WH-347 shall satisfy the requirement for submission of the "Statement of
Compliance" required by paragraph (a)(3)(ii)(B) of this section.
(D) The falsification of any of the above certifications may subject the contractor or subcontractor to
civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United
States Code.
(iii) The contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of
this section available for inspection, copying, or transcription by authorized representatives of the
Federal Transit Administration or the Department of Labor, and shall permit such representatives to
interview employees during working hours on the job. If the contractor or subcontractor fails to
submit the required records or to make them available, the Federal agency may, after written
notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to
cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure
to submit the required records upon request or to make such records available may be grounds for
debarment action pursuant to 29 CFR 5.12.
(4) Apprentices and trainees - (i) Apprentices - Apprentices will be permitted to work at less than
the predetermined rate for the work they performed when they are employed pursuant to and
individually registered in a bona fide apprenticeship program registered with the U.S. Department
of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with
a State Apprenticeship Agency recognized by the Bureau, or if a person is employed in his or her
first 90 days of probationary employment as an apprentice in such an apprenticeship program, who
is not individually registered in the program, but who has been certified by the Bureau of
Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible
for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen
on the job site in any craft classification shall not be greater than the ratio permitted to the
contractor as to the entire work force under the registered program. Any worker listed on a payroll
at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be
paid not less than the applicable wage rate on the wage determination for the classification of work
actually performed. In addition, any apprentice performing work on the job site in excess of the
ratio permitted under the registered program shall be paid not less than the applicable wage rate
on the wage determination for the work actually performed. Where a contractor is performing
construction on a project in a locality other than that in which its program is registered, the ratios
and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the
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contractor's or subcontractor's registered program shall be observed. Every apprentice must be
paid at not less than the rate specified in the registered program for the apprentice's level of
progress, expressed as a percentage of the journeymen hourly rate specified in the applicable
wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of
the apprenticeship program. If the apprenticeship program does not specify fringe benefits,
apprentices must be paid the full amount of fringe benefits listed on the wage determination for the
applicable classification. If the Administrator of the Wage and Hour Division of the U.S. Department
of Labor determines that a different practice prevails for the applicable apprentice classification,
fringes shall be paid in accordance with that determination. In the event the Bureau of
Apprenticeship and Training, or a State Apprenticeship Agency recognized by the Bureau,
withdraws approval of an apprenticeship program, the contractor will no longer be permitted to
utilize apprentices at less than the applicable predetermined rate for the work performed until an
acceptable program is approved.
(ii) Trainees - Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than
the predetermined rate for the work performed unless they are employed pursuant to and
individually registered in a program which has received prior approval, evidenced by formal
certification by the U.S. Department of Labor, Employment and Training Administration. The ratio
of trainees to journeymen on the job site shall not be greater than permitted under the plan
approved by the Employment and Training Administration. Every trainee must be paid at not less
than the rate specified in the approved program for the trainee's level of progress, expressed as a
percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees
shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee
program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits
listed on the wage determination unless the Administrator of the Wage and Hour Division
determines that there is an apprenticeship program associated with the corresponding journeyman
wage rate on the wage determination which provides for less than full fringe benefits for
apprentices. Any employee listed on the payroll at a trainee rate who is not registered and
participating in a training plan approved by the Employment and Training Administration shall be
paid not less than the applicable wage rate on the wage determination for the classification of work
actually performed. In addition, any trainee performing work on the job site in excess of the ratio
permitted under the registered program shall be paid not less than the applicable wage rate on the
wage determination for the work actually performed. In the event the Employment and Training
Administration withdraws approval of a training program, the contractor will no longer be permitted
to utilize trainees at less than the applicable predetermined rate for the work performed until an
acceptable program is approved.
(iii) Equal employment opportunity - The utilization of apprentices, trainees and journeymen under
this part shall be in conformity with the equal employment opportunity requirements of Executive
Order 11246, as amended, and 29 CFR part 30.
(5) Compliance with Copeland Act requirements - The contractor shall comply with the
requirements of 29 CFR part 3, which are incorporated by reference in this contract.
(6) Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses
contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as the Federal Transit
Administration may by appropriate instructions require, and also a clause requiring the
subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall
be responsible for the compliance by any subcontractor or lower tier subcontractor with all the
contract clauses in 29 CFR 5.5.
(7) Contract termination: debarment - A breach of the contract clauses in 29 CFR 5.5 may be
grounds for termination of the contract, and for debarment as a contractor and a subcontractor as
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..
provided in 29 CFR 5.12.
(8) Compliance with Davis-Bacon and Related Act requirements - All rulings and
interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1,3, and 5 are
herein incorporated by reference in this contract.
(9) Disputes concerning labor standards - Disputes arising out of the labor standards provisions
of this contract shall not be subject to the general disputes clause of this contract. Such disputes
shall be resolved in accordance with the procedures of the Department of Labor set forth in 29
CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the
contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor,
or the employees or their representatives.
(10) Certification of eligibility - (i) By entering into this contract, the contractor certifies that
neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a
person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-
Bacon Act or 29 CFR 5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a
Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C.
1001
17. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
40 U.S.C. ~~ 327 -333 (1999)
29 C.F.R. ~ 5 (1999)
29 C.F.R. ~ 1926 (1998)
Applies to:
- all construction contracts in excess of $2,000 and;
- all turnkey, rolling stock and operational contracts (excluding contracts for transportation services)
in excess of $2,500.
(The dollar threshold for this requirement is contained in the current regulation 29 C.F.R. S 5.5(a).)
Section 107 of the Act which deals with OSHA requirements applies to construction contracts in
excess of $2,000 only. The requirements of this section do not apply to contracts or subcontracts
for the purchase of supplies or materials or articles normally available on the open market.
Requirement applies to third party contractors and subcontractors.
Model Clauses/LanC1uaae
Pursuant to Section 102 (Overtime):
( These clauses are specifically mandated under DOL regulation 29 C.F.R. S 5.5 and when
preparing a construction contract in excess of $2,000 these clauses should be used in conjunction
with the Davis-Bacon Act clauses as discussed previously. For nonconstruction contracts, this is
the only section required along with the payroll section.)
(1) Overtime requirements - No contractor or subcontractor contracting for any part of the
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contract work which may require or involve the employment of laborers or mechanics shall require
or permit any such laborer or mechanic in any workweek in which he or she is employed on such
work to work in excess of forty hours in such workweek unless such laborer or mechanic receives
compensation at a rate not less than one and one-half times the basic rate of pay for all hours
worked in excess of forty hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages - In the event of any violation of
the clause set forth in paragraph (1) of this section the contractor and any subcontractor
responsible therefor shall be liable for the unpaid wages. In addition, such contractor and
subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages
shall be computed with respect to each individual laborer or mechanic, including watchmen and
guards, employed in violation of the clause set forth in paragraph (1) of this section, in the sum of $
10 for each calendar day on which such individual was required or permitted to work in excess of
the standard workweek of forty hours without payment of the overtime wages required by the
clause set forth in paragraph (1) of this section.
(3) Withholding for unpaid wages and liquidated damages - The FT A Recipient shall upon its
own action or upon written request of an authorized representative of the Department of Labor
withhold or cause to be withheld, from any moneys payable on account of work performed by the
contractor or subcontractor under any such contract or any other Federal contract with the same
prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and
Safety Standards Act, which is held by the same prime contractor, such sums as may be
determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid
wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section.
(4) Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses set
forth in this section and also a clause requiring the subcontractors to include these clauses in any
lower tier subcontracts. The prime contractor shall be responsible for compliance by any
subcontractor or lower tier subcontractor with the clauses set forth in this section.
( Section 102 nonconstruction contracts should also have the following provision:)
(5) Payrolls and basic records - (i) Payrolls and basic records relating thereto shall be maintained
by the contractor during the course of the work and preserved for a period of three years thereafter
for all laborers and mechanics working at the site of the work (or under the United States Housing
Act of 1937, or under the Housing Act of 1949, in the construction or development of the project).
Such records shall contain the name, address, and social security number of each such worker, his
or her correct classification, hourly rates of wages paid (including rates of contributions or costs
anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in
section 1 (b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions
made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR
5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably
anticipated in providing benefits under a plan or program described in section 1 (b)(2)(B) of the
Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide
such benefits is enforceable, that the plan or program is financially responsible, and that the plan
or program has been communicated in writing to the laborers or mechanics affected, and records
which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors
employing apprentices or trainees under approved programs shall maintain written evidence of the
registration of apprenticeship programs and certification of trainee programs, the registration of the
apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.
Section 107 (OSHA):
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(This section is applicable to construction contracts only)
Contract Work Hours and Safety Standards Act - (i) The Contractor agrees to comply with
section 107 of the Contract Work Hours and Safety Standards Act, 40 U.S.C. section 333, and
applicable DOL regulations, " Safety and Health Regulations for Construction" 29 C.F.R. Part
1926. Among other things, the Contractor agrees that it will not require any laborer or mechanic to
work in unsanitary, hazardous, or dangerous surroundings or working conditions.
(ii)Subcontracts - The Contractor also agrees to include the requirements of this section in each
subcontract. The term "subcontract" under this section is considered to refer to a person who
agrees to perform any part of the labor or material requirements of a contract for construction,
alteration or repair. A person who undertakes to perform a portion of a contract involving the
furnishing of supplies or materials will be considered a "subcontractor" under this section if the
work in question involves the performance of construction work and is to be performed: (1) directly
on or near the construction site, or (2) by the employer for the specific project on a customized
basis. Thus, a supplier of materials which will become an integral part of the construction is a
"subcontractor" if the supplier fabricates or assembles the goods or materials in question
specifically for the construction project and the work involved may be said to be construction
activity. If the goods or materials in question are ordinarily sold to other customers from regular
inventory, the supplier is not a "subcontractor." The requirements of this section do not apply to
contracts or subcontracts for the purchase of supplies or materials or articles normally available on
the open market.
18. COPELAND ANTI-KICKBACK ACT
40 U.S.C. i 276c (1999)
29 C.F.R. i 3 (1999)
29 C.F.R. i 5 (1999)
Applies to all construction contracts in excess of $2,000 and is applicable to all third party
contractors and subcontractors.
DOL has included a section on the Copeland Act in the mandatory language of the Davis-Bacon
provisions. The language can be found at S 5.5(a)(5) of the Davis-Bacon model clauses.
Compliance with Copeland Act requirements - The contractor shall comply with the
requirements of 29 CFR part 3, which are incorporated by reference in this contract.
Since there are no specific statutory or regulatory requirements for additional mandatory language,
no additional clauses are necessary for this provision.
19. NO GOVERNMENT OBLIGATION TO THIRD PARTIES
No Obligation by the Federal Government.
(1) The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence
by the Federal Government in or approval of the solicitation or award of the, absent the express
written consent by the Federal Government, the Federal Government is not a party to this contract
and shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or any other
party (whether or not a party to that contract) pertaining to any matter resulting from the contract.
(2) The Contractor agrees to include the above clause in each subcontract financed in whole or in
part with Federal assistance provided by FT A. It is further agreed that the clause shall not be
modified, except to identify the subcontractor who will be subject to its provisions.
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20. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS
AN 0 RELATED ACTS
31 U.S.C. 3801 et seq.
49 CFR Part 31 18 U.S.C. 1001
49 U.S.C. 5307
Program Fraud and False or Fraudulent Statements or Related Acts.
(1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of
1986, as amended, 31 U.S.C. 9 3801 et seQ . and U.S. DOT regulations, "Program Fraud Civil
Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the
contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has
made, it makes, it may make, or causes to be made, pertaining to this contract or the FTA assisted
project for which this contract work is being performed. In addition to other penalties that may be
applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false,
fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government
reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the
Contractor to the extent the Federal Government deems appropriate.
(2) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or
fraudulent claim, statement, submission, or certification to the Federal Government under a
contract connected with a project that is financed in whole or in part with Federal assistance
originally awarded by FTA under the authority of 49 U.S.C. ~ 5307, the Government reserves the
right to impose the penalties of 18 U.S.C. ~ 1001 and 49 U.S.C. ~ 5307(n)(1) on the Contractor, to
the extent the Federal Government deems appropriate.
(3) The Contractor agrees to include the above two clauses in each subcontract financed in whole
or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be
modified, except to identify the subcontractor who will be subject to the provisions.
21. TERMINATION
49 U.S.C.Part 18
FT A Circular 4220.1 D
a. Termination for Convenience (General Provision) The FTA Recipient may terminate this
contract, in whole or in part, at any time by written notice to the Contractor when it is in the
Government's best interest. The Contractor shall be paid its costs, including contract close-out
costs, and profit on work performed up to the time of termination. The Contractor shall promptly
submit its termination claim to the FT A Recipient to be paid the Contractor. If the Contractor has
any property in its possession belonging to the FTA Recipient, the Contractor will account for the
same, and dispose of it in the manner the FTA Recipient directs.
b. Termination for Default [Breach or Cause] (General Provision) If the Contractor does not
deliver supplies in accordance with the contract delivery schedule, or, if this contractis for services,
the Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to
comply with any other provisions of the contract, the FT A Recipient may terminate this contract for
default. Termination shall be effected by serving a notice of termination on the contractor setting
forth the manner in which the Contractor is in default. The contractor will only be paid the contract
price for supplies delivered and accepted, or services performed in accordance with the manner of
performance set forth in the contract.
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If it is later determined by the FT A Recipient that the Contractor had an excusable reason for not
performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the
control of the Contractor, the FT A Recipient, after setting up a new delivery of performance
schedule, may allow the Contractor to continue work, or treat the termination as a termination for
convenience.
c. Opportunity to Cure (General Provision) The FTA Recipient in its sole discretion may, in the
case of a termination for breach or default, allow the Contractor ten (10) days in which to cure the
defect. In such case, the notice of termination will state the time period in which cure is permitted
and other appropriate conditions
If Contractor fails to remedy to the FT A Recipient's satisfaction the breach or default or any of the
terms, covenants, or conditions of this Contract within ten (10) days after receipt by Contractor or
written notice from the FT A Recipient setting forth the nature of said breach or default, the FT A
Recipient shall have the right to terminate this contractwithout any further obligation to Contractor.
Any such termination for default shall not in any way operate to preclude the FT A Recipient from
also pursuing all available remedies against Contractor and its sureties for said breach or default.
d. Waiver of Remedies for any Breach In the event that the FTA Recipient elects to waive its
remedies for any breach by Contractor of any covenant, term or condition of this Contract, such
waiver by the FTA Recipient shall not limit the FTA Recipient's remedies for any succeeding
breach of that or of any other term, covenant, or condition of this Contract.
e. Termination for Convenience (Professional or Transit Service Contracts) The FTA
Recipient, by written notice, may terminate this contract, in whole or in part, when it is in the
Government's interest. If this contract is terminated, the Recipient shall be liable only for payment
under the payment provisions of this contract for services rendered before the effective date of
termination.
f. Termination for Default (Supplies and Service) If the Contractor fails to deliver supplies or to
perform the services within the time specified in this contract or any extension or if the Contractor
fails to comply with any other provisions of this contract, the FT A Recipient may terminate this
contract for default. The FT A Recipient shall terminate by delivering to the Contractor a Notice of
Termination specifying the nature of the default. The Contractor will only be paid the contract price
for supplies delivered and accepted, or services performed in accordance with the manner or
performance set forth in this contract.
If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was
not in default, the rights and obligations of the parties shall be the same as if the termination had
been issued for the convenience of the Recipient.
g. Termination for Default (Transportation Services) If the Contractor fails to pick up the
commodities or to perform the services, including delivery services, within the time specified in this
contract or any extension or if the Contractor fails to comply with any other provisions of this
contract, the FTA Recipient may terminate this contract for default. The FTA Recipient shall
terminate by delivering to the Contractor a Notice of Termination specifying the nature of default.
The Contractor will only be paid the contract price for services performed in accordance with the
manner of performance set forth in this contract.
If this contract is terminated while the Contractor has possession of Recipient goods, the
Contractor shall, upon direction of the FT A Recipient, protect and preserve the goods until
surrendered to the Recipient or its agent. The Contractor and the FT A Recipient shall agree on
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payment for the preservation and protection of goods. Failure to agree on an amount will be
resolved under the Dispute clause.
If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was
not in default, the rights and obligations of the parties shall be the same as if the termination had
been issued for the convenience of the FT A Recipient.
h. Termination for Default (Construction) If the Contractor refuses or fails to prosecute the work
or any separable part, with the diligence that will insure its completion within the time specified in
this contract or any extension or fails to complete the work within this time, or if the Contractor fails
to comply with any other provisions of this contract, the FT A Recipient may terminate this contract
for default. The FT A Recipient shall terminate by delivering to the Contractor a Notice of
Termination specifying the nature of the default. In this event, the Recipient may take over the work
and compete it by contract or otherwise, and may take possession of and use any materials,
appliances, and plant on the work site necessary for completing the work. The Contractor and its
sureties shall be liable for any damage to the Recipient resulting from the Contractor's refusal or
failure to complete the work within specified time, whether or not the Contractor's right to proceed
with the work is terminated. This liability includes any increased costs incurred by the Recipient in
completing the work.
The Contractor's right to proceed shall not be terminated nor the Contractor charged with damages
under this clause if-
1. the delay in completing the work arises from unforeseeable causes beyond the control and
without the fault or negligence of the Contractor. Examples of such causes include: acts of God,
acts of the Recipient, acts of another Contractor in the performance of a contract with the
Recipient, epidemics, quarantine restrictions, strikes, freight embargoes; and
2. the contractor, within ten (10) days from the beginning of any delay, notifies the FT A Recipient in
writing of the causes of delay. If in the judgment of the FT A Recipient, the delay is excusable, the
time for completing the work shall be extended. The judgment of the FTA Recipient shall be final
and conclusive on the parties, but subject to appeal under the Disputes clauses.
If, after termination of the Contractor's right to proceed, it is determined that the Contractor was not
in default, or that the delay was excusable, the rights and obligations of the parties will be the same
as if the termination had been issued for the convenience of the Recipient.
i. Termination for Convenience or Default (Architect and Engineering) The FTA Recipient may
terminate this contract in whole or in part, for the Recipient's convenience or because of the failure
of the Contractor to fulfill the contract obligations. The FT A Recipient shall terminate by delivering
to the Contractor a Notice of Termination specifying the nature, extent, and effective date of the
termination. Upon receipt of the notice, the Contractor shall (1) immediately discontinue all services
affected (unless the notice directs otherwise), and (2) deliver to the Contracting Officer all data,
drawings, specifications, reports, estimates, summaries, and other information and materials
accumulated in performing this contract, whether completed or in process.
If the termination is for the convenience of the Recipient, the Contracting Officer shall make an
equitable adjustment in the contract price but shall allow no anticipated profit on unperformed
services.
If the termination is for failure of the Contractor to fulfill the contract obligations, the Recipient may
complete the work by contact or otherwise and the Contractor shall be liable for any additional cost
incurred by the Recipient.
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If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was
not in default, the rights and obligations of the parties shall be the same as if the termination had
been issued for the convenience of the Recipient.
j. Termination for Convenience of Default (Cost-Type Contracts) The FTA Recipient may
terminate this contract, or any portion of it, by serving a notice or termination on the Contractor.
The notice shall state whether the termination is for convenience of the FT A Recipient or for the
default of the Contractor. If the termination is for default, the notice shall state the manner in which
the contractor has failed to perform the requirements of the contract. The Contractor shall account
for any property in its possession paid for from funds received from the FT A Recipient, or property
supplied to the Contractor by the FT A Recipient. If the termination is for default, the FT A Recipient
may fix the fee, if this contractprovides for a fee, to be paid the contractor in proportion to the
value, if any, of work performed up to the time of termination. The Contractor shall promptly submit
its termination claim to the FTA Recipient and the parties shall negotiate the termination settlement
to be paid the Contractor.
If the termination is for the convenience of the FT A Recipient, the Contractor shall be paid its
contract close-out costs, and a fee, if this contractprovided for payment of a fee, in proportion to
the work performed up to the time of termination.
If, after serving a notice of termination for default, the FT A Recipient determines that the Contractor
has an excusable reason for not performing, such as strike, fire, flood, events which are not the
fault of and are beyond the control of the contractor, the FT A Recipient, after setting up a new work
schedule, may allow the Contractor to continue work, or treat the termination as a termination for
convenience.
22. GOVERNMENT-WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
49 CFR Part 29
Executive Order 12549
The certification and instruction language is contained at 29 CFR Part 29, Appendix 8, and must
be included in IFB's and RFP's for inclusion by contractors in their bids or proposals for all
contracts over $100,000, regardless of the type of contract to be awarded.
Certification Reaardina Debarment. Suspension. and Other Responsibilitv Matters
Lower Tier Covered Transactions (Third Party Contracts over $100,000).
Instructions for Certification
1. By signing and submitting this bid or proposal, the prospective lower tier participant is
providing the signed certification set out below.
2. The certification in this clause is a material representation of fact upon which reliance was
placed when this transaction was entered into. If it is later determined that the prospective lower
tier participant knowingly rendered an erroneous certification, in addition to other remedies
available to the Federal Government, the FT A Recipient may pursue available remedies, including
suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate written notice to the FTA Recipient
if at any time the prospective lower tier participant learns that its certification was erroneous when
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...
submitted or has become erroneous by reason of changed circumstances.
4. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered
transaction," :"participant," "persons," "lower tier covered transaction," "principal," "proposal," and
"voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and
Coverage sections of rules implementing Executive Order 12549 [49 CFR Part 29]. You may
contact the FT A Recipient for assistance in obtaining a copy of those regulations.
5. The prospective lower tier participant agrees by submitting this proposal that, should the
proposed covered transaction be entered into, it shall not knowingly enter into any lower tier
covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily
excluded from participation in this covered transaction, unless authorized in writing by the FT A
Recipient.
6. The prospective lower tier participant further agrees by submitting this proposal that it will
include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary
Exclusion - Lower Tier Covered Transaction", without modification, in all lower tier covered
transactions and in all solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective participant in
a lower tier covered transaction that it is not debarred, suspended, ineligible, or voluntarily
excluded from the covered transaction, unless it knows that the certification is erroneous. A
participant may decide the method and frequency by which it determines the eligibility of its
principals. Each participant may, but is not required to, check the Nonprocurement List issued by
u.S. General Service Administration.
8. Nothing contained in the foregoing shall be construed to require establishment of system of
records in order to render in good faith the certification required by this clause. The knowledge and
information of a participant is not required to exceed that which is normally possessed by a prudent
person in the ordinary course of business dealings.
9. Except for transactions authorized under Paragraph 5 of these instructions, if a participant in a
covered transaction knowingly enters into a lower tier covered transaction with a person who is
suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in
addition to all remedies available to the Federal Government, the FT A Recipient may pursue
available remedies including suspension and/or debarment.
"Certification Regarding Debarment. Suspension. Ineligibility and Voluntarv
Exclusion - Lower Tier Covered Transaction"
(1) The prospective lower tier participant certifies, by submission of this bid or proposal, that neither
it nor its "principals" [as defined at 49 C.F.R. S 29.1 05(p)] is presently debarred, suspended,
proposed for debarment, declared ineligible, or voluntarily excluded from participation in this
transaction by any Federal department or agency.
(2) When the prospective lower tier participant is unable to certify to the statements in this
certification, such prospective participant shall attach an explanation to this proposal.
23. PRIVACY ACT
5 U.S.C. 552
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Contracts Involving Federal Privacy Act Requirements - The following requirements apply to
the Contractor and its employees that administer any system of records on behalf of the Federal
Government under any contract:
(1) The Contractor agrees to comply with, and assures the compliance of its employees with, the
information restrictions and other applicable requirements of the Privacy Act of 1974,
5 U.S.C. 9 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 this
contract.
(2) The Contractor also agrees to include these requirements in each subcontract to administer
any system of records on behalf of the Federal Government financed in whole or in part with
Federal assistance provided by FTA.
24. CIVIL RIGHTS REQUIREMENTS
29 U.S.C. ~ 623, 42 U.S.C. ~ 2000
42 U.S.C. ~ 6102, 42 U.S.C. ~ 12112
42 U.S.C. ~ 12132, 49 U.S.C. ~ 5332
29 CFR Part 1630, 41 CFR Parts 60 et seq.
Civil Rights - The following requirements apply to this contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. 9
2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. 96102, section
202 of the Americans with Disabilities Act of 1990, 42 U.S.C. 9 12132, and Federal transit law at
49 U.S.C. 95332, the Contractor agrees that it will not discriminate against any employee or
applicant for employment because of race, color, creed, national origin, sex, age, or disability. In
addition, the Contractor agrees to comply with applicable Federal implementing regulations and
other implementing requirements FTA may issue.
(2) Equal Emplovment Opportunity - The following equal employment opportunity requirements
apply to this contract:
(a) Race, Color, Creed. National Oriqin, Sex - In accordance with Title VII of the Civil Rights Act, as
amended, 42 U.S.C. 9 2000e, and Federal transit laws at 49 U.S.C. 9 5332, the Contractor agrees
to comply with all applicable equal employment opportunity requirements of U.S. Department of
Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et sea ., (which implement
Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No.
11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S,G.
S 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal
policies that may in the future affect construction activities undertaken in the course of the Project.
The Contractor agrees to take affirmative action to ensure that applicants are employed, and that
employees are treated during employment, without regard to their race, color, creed, national
origin, sex, or age. Such action shall include, but not be limited to, the following: employment,
upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates
of payor other forms of compensation; and selection for training, including apprenticeship. In
addition, the Contractor agrees to comply with any implementing requirements FT A may issue.
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
(b) AQe - I n accordance with section 4 of the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. S S 623 and Federal transit law at 49 U.S.C. S 5332, the Contractor agrees to
refrain from discrimination against present and prospective employees for reason of age. In
addition, the Contractor agrees to comply with any implementing requirements FTA may issue.
(c) Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended,
42 U.S.C. S 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal
Employment Opportunity Commission, "Regulations to Implement the Equal Employment
Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment
of persons with disabilities. In addition, the Contractor agrees to comply with any implementing
requirements FTA may issue.
(3) The Contractor also agrees to include these requirements in each subcontract financed in
whole or in part with Federal assistance provided by FT A, modified only if necessary to identify the
affected parties.
25. BREACHES AND DISPUTE RESOLUTION
49 CFR Part 18
FT A Circular 4220.1 D
Disputes - Disputes arising in the performance of this Contract which are not resolved by
agreement of the parties shall be decided in writing by the authorized representative of the FT A
Recipient's Business Services Director. This decision shall be final and conclusive unless within
ten (10) days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a
written appeal to the Business Services Director. In connection with any such appeal, the
Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its
position. The decision of the Business Services Director shall be binding upon the Contractor and
the Contractor shall abide be the decision.
Performance During Dispute - Unless otherwise directed by the FT A Recipient, Contractor shall
continue performance under this Contract while matters in dispute are being resolved.
Claims for Damages - Should either party to this contract suffer injury or damage to person or
property because of any act or omission of the party or of any of his employees, agents or others
for whose acts he is legally liable, a claim for damages therefor shall be made in writing to such
other party within a reasonable time after the first observance of such injury of damage.
Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other
matters in question between the FTA Recipient and the Contractor arising out of or relating to this
agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of
competent jurisdiction within the State in which the FTA Recipient is located.
Rights and Remedies - The duties and obligations imposed by this contract and the rights and
remedies available thereunder shall be in addition to and not a limitation of any duties, obligations,
rights and remedies otherwise imposed or available by law. No action or failure to act by the FTA
Recipient, (Architect) or Contractor shall constitute a waiver of any right or duty afforded any of
them under the Contract, nor shall any such action or failure to act constitute an approval of or
acquiescence in any breach thereunder, except as may be specifically agreed in writing.
26. PATENT AND RIGHTS IN DATA
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
37 CFR Part 401
49 CFR Parts 18 and 19
CONTRACTS INVOLVING EXPERIMENTAL, DEVELOPMENTAL, OR RESEARCH WORK.
A. Rights in Data - This following requirements apply to each contract involving experimental,
developmental or research work:
(1) The term "subject data" used in this clause means recorded information, whether or not
copyrighted, that is delivered or specified to be delivered under the contract. The term includes
graphic or pictorial delineation in media such as drawings or photographs; text in specifications or
related performance or design-type documents; machine forms such as punched cards, magnetic
tape, or computer memory printouts; and information retained in computer memory. Examples
include, but are not limited to: computer software, engineering drawings and associated lists,
specifications, standards, process sheets, manuals, technical reports, catalog item identifications,
and related information. The term "subject data" does not include financial reports, cost analyses,
and similar information incidental to contract administration.
(2) The following restrictions apply to all subject data first produced in the performance of this
contractto which this Attachment has been added:
(a) Except for its own internal use, the Purchaser or Contractor may not publish or reproduce
subject data in whole or in part, or in any manner or form, nor may the Purchaser or Contractor
authorize others to do so, without the written consent of the Federal Government, until such time
as the Federal Government may have either released or approved the release of such data to the
public; this restriction on publication, however, does not apply to any contract with an academic
institution.
(b) In accordance with 49 C.F.R. 9 18.34 and 49 C.F.R. 9 19.36, the Federal Government reserves
a royalty-free, non-exclusive and irrevocable license to reproduce, publish, or otherwise use, and
to authorize others to use, for "Federal Government purposes," any subject data or copyright
described in subsections (2)(b)1 and (2)(b)6. of this clause below. As used in the previous
sentence, "for Federal Government purposes," means use only for the direct purposes of the
Federal Government. Without the copyright owner's consent, the Federal Government may not
extend its Federal license to any other party.
1. Any subject data developed under that contract, whether or not a copyright has been obtained;
and
2. Any rights of copyright purchased by the Purchaser or Contractor using Federal assistance in
whole or in part provided by FT A.
(c) When FTA awards Federal assistance for experimental, developmental, or research work, it is
FT A's general intention to increase transportation knowledge available to the public, rather than to
restrict the benefits resulting from the work to participants in that work. Therefore, unless FT A
determines otherwise, the Purchaser and the Contractor performing experimental, developmental,
or research work required by this contract to which this Attachment is added agrees to permit FT A
to make available to the public, either FT A's license in the copyright to any subject data developed
in the course of that contract, or a copy of the subject data first produced under this contractfor
which a copyright has not been obtained. If the experimental, developmental, or research work,
which is the subject of this contract, is not completed for any reason whatsoever, all data
developed under that contract shall become subject data as defined in subsection (a) of this clause
and shall be delivered as the Federal Government may direct. This subsection (c), however, does
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
,,; I "......
..
not apply to adaptations of automatic data processing equipment or programs for the Purchaser or
Contractor's use whose costs are financed in whole or in part with Federal assistance provided by
FT A for transportation capital projects.
(d) Unless prohibited by state law, upon request by the Federal Government, the Purchaser and
the Contractor agree to indemnify, save, and hold harmless the Federal Government, its officers,
agents, and employees acting within the scope of their official duties against any liability, including
costs and expenses, resulting from any willful or intentional violation by the Purchaser or
Contractor of proprietary rights, copyrights, or right of privacy, arising out of the publication,
translation, reproduction, delivery, use, or disposition of any data furnished under that contract.
Neither the Purchaser nor the Contractor shall be required to indemnify the Federal Government
for any such liability arising out of the wrongful act of any employee, official, or agents of the
Federal Government.
(e) Nothing contained in this clause on rights in data shall imply a license to the Federal
Government under any patent or be construed as affecting the scope of any license or other right
otherwise granted to the Federal Government under any patent.
(f) Data developed by the Purchaser or Contractor and financed entirely without using Federal
assistance provided by the Federal Government that has been incorporated into work required by
this contract to which this Attachment has been added is exempt from the requirements of
subsections (b), (c), and (d) of this clause, provided that the Purchaser or Contractor identifies that
data in writing at the time of delivery of the contract work.
(g) Unless FTA determines otherwise, the Contractor agrees to include these requirements in each
subcontract for experimental, developmental, or research work financed in whole or in part with
Federal assistance provided by FT A.
(3) Unless the Federal Government later makes a contrary determination in writing, irrespective of
the Contractor's status (i.e., a large business, small business, state government or state
instrumentality, local government, nonprofit organization, institution of higher education, individual,
etc.), the Purchaser and the Contractor agree to take the necessary actions to provide, through
FT A, those rights in that invention due the Federal Government as described in
U.S. Department of Commerce regulations, "Rights to Inventions Made by Nonprofit Organizations
and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," 37
C.F.R. Part 401.
(4) The Contractor also agrees to include these requirements in each subcontract for experimental,
developmental, or research work financed in whole or in part with Federal assistance provided by
FTA.
B. Patent Rights - The following requirements apply to each contract involving experimental,
developmental, or research work:
(1) General - If any invention, improvement, or discovery is conceived or first actually reduced to
practice in the course of or under the contract to which this Attachment has been added, and that
invention, improvement, or discovery is patentable under the laws of the United States of America
or any foreign country, the Purchaser and Contractor agree to take actions necessary to provide
immediate notice and a detailed report to the party at a higher tier until FTA is ultimately notified.
(2) Unless the Federal Government later makes a contrary determination in writing, irrespective of
the Contractor's status (a large business, small business, state government or state
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
l" , ".....
instrumentality, local government, nonprofit organization, institution of higher education, individual),
the Purchaser and the Contractor agree to take the necessary actions to provide, through FTA,
those rights in that invention due the Federal Government as described in U.S. Department of
Commerce regulations, "Rights to Inventions Made by Nonprofit Organizations and Small Business
Firms Under Government Grants, Contracts and Cooperative Agreements," 37 C.F.R. Part 401.
(3) The Contractor also agrees to include the requirements of this clause in each subcontract for
experimental, developmental, or research work financed in whole or in part with Federal assistance
provided by FT A.
27. TRANSIT EMPLOYEE PROTECTIVE AGREEMENTS
49 U.S.C. ~ 5310, ~ 5311, and ~ 5333
29 CFR Part 215
Transit Employee Protective Provisions. (1) The Contractor agrees to comply with applicable
transit employee protective requirements as follows:
(a) General Transit Emplovee Protective Requirements - To the extent that FTA determines that
transit operations are involved, the Contractor agrees to carry out the transit operations work on
this contract in compliance with terms and conditions determined by the U.S. Secretary of Labor to
be fair and equitable to protect the interests of employees employed under this contract and to
meet the employee protective requirements of 49 U.S.C. A 5333(b), and U.S. DOL guidelines at 29
C.F.R. Part 215, and any amendments thereto. These terms and conditions are identified in the
letter of certification from the U.S. DOL to FTA applicable to the FTA Recipient's project from which
Federal assistance is provided to support work on this contract. The Contractor agrees to carry out
that work in compliance with the conditions stated in that U.S. DOL letter. The requirements of this
subsection (1), however, do not apply to any contract financed with Federal assistance provided by
FT A either for projects for elderly individuals and individuals with disabilities authorized by 49
U.S.C. 9 5310(a)(2), or for projects for nonurbanized areas authorized by 49 U.S.C. 95311.
Alternate provisions for those projects are set forth in subsections (b) and (c) of this clause.
(b) Transit Employee Protective Requirements for Proiects Authorized bv 49 U.S.C. & 5310(a)(2)
for Elderly Individuals and Individuals with Disabilities - If the contract involves transit operations
financed in whole or in part with Federal assistance authorized by 49 U.S.C. 9 5310(a)(2), and if
the U.S. Secretary of Transportation has determined or determines in the future that the employee
protective requirements of 49 U.S.C. 9 5333(b) are necessary or appropriate for the state and the
public body sub recipient for which work is performed on this contract, the Contractor agrees to
carry out the Project in compliance with the terms and conditions determined by the U.S. Secretary
of Labor to meet the requirements of 49 U.S.C. 9 5333(b), u.s. DOL guidelines at 29 C.F.R. Part
215, and any amendments thereto. These terms and conditions are identified in the U.S. DOL's
letter of certification to FT A, the date of which is set forth Grant Agreement or Cooperative
Agreement with the state. The Contractor agrees to perform transit operations in connection with
this contract in compliance with the conditions stated in that U.S. DOL letter.
(c) Transit Employee Protective Requirements for Proiects Authorized by 49 U.S.C. ~ 5311jn
Nonurbanized Areas - If the contract involves transit operations financed in whole or in part with
Federal assistance authorized by 49 U.S.C. 9 5311, the Contractor agrees to comply with the
terms and conditions of the Special Warranty for the Nonurbanized Area Program agreed to by the
U.S. Secretaries of Transportation and Labor, dated May 31, 1979, and the procedures
implemented by U.S. DOL or any revision thereto.
(2) The Contractor also agrees to include the any applicable requirements in each subcontract
involving transit operations financed in whole or in part with Federal assistance provided by FT A.
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008 CITY OF WOODBURN
"........ ..
28. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
49 CFR Part 26
See contract terms, above, and 49 CFR Part 26.
29. STATE AND LOCAL LAW DISCLAIMER
State and Local Law Disclaimer - Nothing herein shall be deemed to eliminate the applicability of
State or local laws or ordinances to the extent that the same are not in conflict with Federal
requirements.
30. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS
FTA Circular 4220.1E
Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions
include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly
set forth in the preceding contract provisions. All contractual provisions required by DOT, as set
forth in FTA Circular 4220.1 E, as modified or amended, are hereby incorporated by reference.
Anything to the contrary herein notwithstanding, all FT A mandated terms shall be deemed to
control in the event of a conflict with other provisions contained in this Agreement. The Contractor
shall not perform any act, fail to perform any act, or refuse to comply with any requests by the FT A
Recipient, which would cause the FT A Recipient to be in violation of the FT A terms and conditions.
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",' .....
31. DRUG AND ALCOHOL TESTING
49 U.S.C. S5331
49 CFR Parts 653 and 654
Drug and Alcohol Testing
The contractor agrees to establish and implement a drug and alcohol testing program that
complies with 49 CFR Parts 653 and 654, produce any documentation necessary to establish its
compliance with Parts 653 and 654, and permit any authorized representative of the United States
Department of Transportation or its operating administrations, the State Oversight Agency of
Oregon, or the FTA Recipient, 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. The contractor agrees further to certify annually its compliance
with Parts 653 and 654 before a date established by the FT A Recipient and to submit the
Management Information System (MIS) reports before March 1 to the Contract Officer of the FT A
Recipient. To certify compliance the contractor shall use the "Substance Abuse Certifications" in
the "Annual List of Certifications and Assurances for Federal Transit Administration Grants and
Cooperative Agreements," which is published annually in the Federal Register. The Contractor
agrees further to comply with one of the following requirements, as may be required by the FTA
Recipient: (a) submit before a date established by the FTA Recipient a copy of the Policy
Statement developed to implement its drug and alcohol testing program; OR (b) adopt the Policy
Statement, which the FT A Recipient designates the contractor to use, as its policy statement as
required under 49 CFR 653 and 654; OR (c) submit for review and approval before a date
established by the FT A Recipient a copy of its Policy Statement developed to implement its drug
and alcohol testing program. In addition, the contractor agrees to comply with such additional
reasonable requirements for compliance with 49 CFR Parts 653 and 654 as may be established by
the FT A Recipient from time to time such as: the selection of the certified laboratory I substance
abuse professional, or Medical Review Officer, or the use of a consortium.
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
....
PROVIDER: CITY OF WOODBURN
Award Control Number: JARC
EXHIBIT B
Project Name: CITY OF WOODBURN
Project Manager: RANDY ROHMAN
Mailing Address: 270 MONTGOMERY ST
WOODBURN, OR 97071-4730
Telephone Number: 503-982-5222
Section 1
Operating Statistics
Month that reporting period covers:
Days operated in reporting period:
Weekdays:
Weekend Days:
Total:
Vehicle service miles
this month?
Vehicle service
hours this month?
Vehicle revenue miles
this month?
Vehicle revenue
hours this month?
Volunteer Miles
this month?
Volunteer Hours
this month?
Disabled Clients:
General Public:
Senior Citizens:
Children 1:
How many one-way trips did you provide the past month?
How many unduplicated clients did you provide service in the past month?
How many of the above trips were subcontracted?
How many trips did you turn down during the reporting period?
How many trips did you cancel during the reporting period?
How many "no-shows" did you record the past month?
1 General public passengers who are less than 19 years of age.
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008 CITY OF WOODBURN
,.. ,..... .....
Approved Budget Current Month Year-to-Date
Section 2 Administrative Expenses Expenses Expenses Expenses
ADMINISTRATIVE EXPENSES
Salary & Fringe Benefits:
Executive Director $ $ $
Fiscal Officer
Administrative Assistant
Program Manager
Secretary/Clerical
Fringe Benefits
Rent/Leases:
Facility
Office Equipment
Overhead/Utilities/Jan itorial:
Telephone
Facility Maintenance
Administrative Employee Training:
Travel
Training
Marketing/Public Involvement:
Advertising
Professional Services
Printing
Contract Services:
Legal
Audit
Other Professional Services
Admin Drug/Alcohol Testing:
Drug Testing
Other Admin Expenses:
Mileage Reimbursement
Postage
Office Supplies
Miscellaneous Expenses
Total Administrative Expenses $ $ $
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
,-
Approved Current Month Year-to-Date
Section 3 Operation Expenses Expenses Expenses Expenses
Salary/Fringe Benefits
Dispatch/Transit Coordinator Personnel $ $ $
Paid Drivers
Volunteer Drivers
Maintenance Personnel
Fringe Benefits
Operations Employee Training:
Travel
Training
Vehicle Maintenance:
Tires
Fuel and Oil
Spare parts
Transit Service Contracts
Transit Vehicle Maintenance Contract
Vehicle Insurance
Other Operating Expenses:
License/Fees
Volunteer Reimbursement
Uniforms
Total Operating Expenses $ $ $
Section 4 Capital Expenses
Vehicle Purchase/Rehabilitation
Capital Reserve Account
Vehicle Lease
Total Capital Expenses $ $ $
Section 5: Planning Expenses
Administrative (Agency Expenses)
Consu~antExpenses
Total Planning Expenses $ $ $
TOTAL OPERATING EXPENSES $ $ $
TOTAL ADMINISTRATIVE EXPENSES $ $ $
TOT AL PROGRAM BUDGET $ $ $
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
Section 6 Program Revenues
1. Federally Generated Revenue
Section 3037 (Job Access)
Section 5307
Section 5309
Section 5310
Section 5311
STP Surface Transportation Program
OMAQ-Congestion Mlt. Air Quality
OTIB-OR Transportation Infrastructure
Other:
2. State Generated Revenue
Other State Grant Awards: (List)
3. Locally Generated Revenue
F ou ndations/Donations
In-Lieu/General Fund
STF Special Transportation Fund
Local Taxes and Fees
Interest Earnings
Advertising
Package Delivery
Service Contract Revenue: (List)
4. Operating Revenue
Fare Box
Charter Bus Revenue
Special Service Revenue
5. Capital Related Revenue
Sale-Surplus Vehicles/EquipmenUFacilities
Approved
Revenue
$
Current Month
Revenue
$
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
Year-to-Date
Revenue
$
CITY OF WOODBURN
l" I ,.......
Section 6: Program Revenues
(continued)
6. Non-Cash Contributions
Non-Cash Contributions (List)
Approved
Revenue
Current Month
Revenue
Year-to-Date
Revenue
Value of Volunteer Services: (List)
Value of Services or Supplies: (List)
Value of Admin Overhead: (List)
TOTAL PROGRAM REVENUES
$
$
$
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
.
CURRENT
MONTH YEAR- TO-DATE
$ $
$ $
$ $
$ $
$ $
$ $
$ $
Section 7 Program Reimbursement Request
1) Total Administrative Expenses (Section 2)
2) Total Operating Expenses (Section 3)
3) Total Capital Expenses (Section 4)
4) Gross Program Budget (Section 5)
5) Total Program Revenues (Section 6)
6) Net Program Expenditures
7) JARC Reimbursement Request
The above information is true and accurate to the best of my knowledge.
Signed:
Date:
Specialized Transportation Division:
Signed:
Date:
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
EXHIBIT C
General Guidelines
Crimes Affecting Fitness for Driver Qualification
Type of Offense*
Class of Offense Time Frame to
Consider
Felony Forever
Misdemeanor 10 years
Felony 20 years
Misdemeanor 5 years
Felony 15 years
Misdemeanor 5 years
Felony 15 years
Misdemeanor 5 years
Felony 15 years
Misdemeanor 10 years
Felony 15 years
Misdemeanor 10 years
Offenses against persons
Offenses against property
Offenses involving fraud or deception
Offenses against public order; firearms and other
weapons; racketeering
Offenses against public health, decency, and
animals
Offenses involving controlled substances, illegal
drug cleanup, paraphernalia, precursors**
* Any offense committed with a weapon or which results in serious injury to any person shall
be considered forever.
** Consideration of crimes involving drugs shall include an appropriate current risk
assessment, prior treatment, proof of recovery from an established and proven disability,
and confidence of the decision maker based on the totality of information received that the
applicant has no current connection with illegal controlled substances and drug activity.
The burden of establishing absence of risk factors is on the subject individuals.
APPEAL PROCEDURE
An applicant who has been denied qualification to drive based on criminal record has the right to
appeal. The affected individual may challenge the accuracy or completeness of a report or you
may appeal the District's decision.
If the affected individual believes that criminal offender information is inaccurate or incomplete, the
affected individual must request a review with the source of the information:
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
----------------------------------------,
Oregon State Police OSP procedures adopted under ORS 181.555(3) give the
individual the right to inspect, challenge and correct his own criminal offender
information. A written request for review, with proof of identity (name, date of birth, and
rolled ink fingerprints) is required within 15 calendar days. Mail or deliver the request
to:
Oregon State Police
Identification Services Section
3772 Portland Road, NE
Salem, OR 97303
The OSP division and the person will have a pre-hearing meeting to review information
and determine the need for a hearing.
Federal Bureau of Investigation Under federal law, an individual can challenge the
report, but cannot review or obtain a copy of the actual FBI record. To challenge the
accuracy or completeness of any entry obtained from an FBI criminal records check, file a
challenge with:
Assistant Director
FBI Identification Division
Washington, DC 20537-9700
----------------------------------------
APPEAL THE DECISION
The appeal process allows an applicant to gather additional information that will help the District
determine whether the disqualification based on a criminal records check should stand
A written appeal affords an applicant a reasonable opportunity to present relevant information,
evidence, and supporting statements. An applicant has ten (10) days from the date of receiving
your disqualification letter to submit an appeal. Failure to submit a written appeal constitutes
waiver of the right to an appeal.
Guidelines for appeals under the criminal records policy are as follows:
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
.. ....
Guidelines for Written Appeal of an Ineligible Determination
based upon Criminal Records History
If you believe that a denial of driver qualification based upon a criminal record check
warrants reconsideration, you have the right to appeal. Your packet includes
guidelines and the Appeal Form.
INSTRUCTIONS AND PROCESS
An appeal will be in writing from either the applicant or the Contractor and will
contain the name of the person requesting reconsideration, a statement of the
reason(s) why it is believed that a disqualification is invalid, and the signature of
the requester.
You may attach documents and other evidence to be included with the record
and considered in deciding the appeal.
Submit the written appeal and supporting documents within ten calendar days
after receiving written notice of disqualification to the District's Human
Resources Director. If an appeal is not filed within ten calendar days, the
applicant has waived the right of appeal.
- The appeal and supporting documents are sent to the Human Resources
Director (hereinafter "Hearings Officer").
The Hearings Officer reviews the appeal and any supporting evidence,
researches the incident if necessary, and interprets the conviction designation &
level. The Hearings Officer may also conduct a hearing, if requested, to afford
the person a reasonable opportunity to present witnesses and other evidence.
_ The Hearings Officer will render a written decision that shall be final if adopted
and approved by the General Manager.
- The Hearings Officer conveys the General Manager's decision to the Contractor
who conveys the decision to the applicant.
The District will keep a record of the appeal, findings, and final decision.
GUIDELINES
These guidelines govern issues, evidence, and documents:
The primary issue is fitness for employment, or qualification, as prescribed and
intended by ORS 267.237. The balance of the evidence must weigh in favor of
protecting our customers, many of who are vulnerable Oregonians.
We also afford due process under the law and will be attentive to:
~ Circumstances surrounding the crime
~ Relevance of the crime to the position
~ Intervening time and behavior
~ Supporting statements and documents
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JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
Appeal Form
Your Name:
Employer Name:
Date of Crime and Class of Offense (felony, misdemeanor): State Where
Conviction: Convicted:
Description of your sentence (jail time, fine, probation, community service)
(Add another sheet if there is more than one conviction.)
In re-evaluating fitness for driver qualification, the District will consider:
. the criminal history check (see Criminal Offenses that Affect Qualification in this packet)
. the nature and circumstances of the crime
. the facts that support the conviction or pending indictment
. intervening circumstances since the crime (for example, work history, training, education,
restitution)
. the relevancy, if any, of each crime to the job, position, or license
. the likelihood of the crime being repeated
. time since conviction
. employer (or other) recommendations
In preparing your appeal, consider whether any of the items listed above apply to you, explain
them in your comments, and attach supporting documents or statements, if you can. For example:
. You might want to describe extenuating circumstances around the conviction that you
believe we should consider.
. Statements from a witness, employer(s), parole officer, or teacher may support your case.
. Documents such as school records or verification of community service demonstrate what
you have accomplished or contributed since your conviction.
Circumstances and Comments - Describe in your own words what happened during the event that
resulted in your conviction. What have you done since your conviction that should be considered in your
appeal? You may write comments on the form or you may attach explanations, evidence, and letters of
recommendation.
(continue on back if necessary)
Signature Date
Please return this form within ten (10) calendar days to Salem Area Mass Transit District, Attn:
Human Resources Director, 555 Court St NE, Suite 5230, Salem, OR 97301-3736
59
JOB ACCESS REVERSE COMMUTE AGREEMENT 2006 - 2008
CITY OF WOODBURN
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