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Res 1502 - Grant Agrmt #16467 COUNCIL BILL NO. 1915 RESOLUTION NO. 1502 A RESOLUTION ENTERING INTO GRANT AGREEMENT NO: 16467 WITH THE STATE OF OREGON AND AUTHORIZING THE MAYOR TO SIGN SUCH AGREEMENT. WHEREAS, the State of Oregon acting through the Oregon Transportation Commission is authorized to enter into agreements and disburse funds for the purpose of supporting public transportation pursuant to ORS 184.670 to 184.733, and WHEREAS, the City of Woodburn has applied for public transportation operating assistance funds for Fiscal Year 1998-99 under Title 49, United States Code, Chapter 53, and WHEREAS, the State of Oregon, Department of Transportation, has been designated to evaluate and select recipients of assistance and to coordinate grant application, and WHEREAS, the State of Oregon, Department of Transportation, has approved the city application for $33,178 to support public transportation, NOW THEREFORE; THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. That the City of Woodburn enter into Grant Agreement No: 16467, which is affixed as Attachment II A II and by this reference incorporated herein, with the State of Oregon acting by and through its Department of Transportation to secure Federal funds through Title 49, United States Code, Chapter 53 for the purpose of supporting public transportation. Section 2. That the Mayor of the City of Woodburn is authorized to sign said agreement on behalf of the City. Page 1- COUNCIL BILL NO. 1915 RESOLUTION NO. 1502 lu T Approved as to formm ~~ City Attorney [-1- i~ Date ~ APPROVED NCY A. KI SE, Mayor Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: mcu-;-J'~ ~ary T~ant, Recorder City of Woodburn, Oregon July 13, 1998 July 14, 1998 July 14, 1998 July 14, 1998 Page 2 - COUNCIL BILL 1915 RESOLUTION NO. 1502 'T _'_" ~ .~, .. ". ""<0,,, '''''''_ ,"..__,..~____.. .__ _,____'",'" ___" 'f T EA No. OR184015Z56 5311 0perating 0~ OEP-4t;>h ~(j ~~ Hn ~ ~, A:1tvspo~~~ ODOT GRANT AGREEMENT No: 16467 THIS AGREEMENT is made and entered into by and between THE STATE OF OREGON, acting by and through its Department of Transportation, hereinafter referred to as "ODOr; and Woodburn, hereinafter referred to as "Recipient". Recipient enters into this Agreement with ODOT to secure financial assistance to complete the activities described in Exhibit A, attached hereto and by this reference made a part hereof. RECITALS By the authority granted in ORS 190.110 and 283.110, state agencies may enter into Agreements with units of local government or other state agencies for the performance of any or all functions and activities that a party to the Agreement, its officers, or agents have the authority to perform. The State of Oregon acting through the Oregon Transportation Commission is authorized to enter into Agreements and disburse funds for the purpose of supporting public transportation pursuant to ORS 184.670 to 184.733. This Agreement is based upon and is subject to Oregon Revised Statutes (ORS), Oregon Administrative Rules, and Federal Transit Administration regulations as contained in ORS 323.455, ORS 391.800 through 391.830 and FTA Circular 9040.10 and 5010.1B. From time to time these laws, rules and regulations may be amended. OOOT reserves the right to amend this Agreement if it is affected. OOOT will provide thirty (30) days notice of impending changes and will prepare a supplemental Agreement incorporating the changes to be executed by the parties to this Agreement. NOW THEREFORE, the premises being in general as stated in the foregoing recitals, it is agreed by and between the parties hereto as follows: TERMS OF AGREEMENT: 1. Payment shall not exceed $33,178, as described in Exhibit A, Project Description and Budget. 2. This Agreement is to begin on July 1, 1998, or upon execution of the Agreement by all parties, whichever is later and shall expire on June 30, 1999. I T IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their seals as the of the day and year hereinafter written. The Oregon Transportation Commission on February 18, 1998, approved Subdelegation Order No.2, in which the Director grants authority to the Branch and Region Managers to approve and execute Agreements for projects included in the Statewide Transportation Improvement Program. Recipient: Woodburn BY:~Y Title~ Mayor Agency Address: 270 t-bntqc:rrerv Street. Woodburn. OR 97071 Date: 7. - l :{ /' t ~ STATE OF OREGON, by and through its Department of Transportation, By: ~ ~ Date: {,-l1-qi Craig r' enleaf Title: Deputy Director, Transportation Development Branch 2 T 'T ...... ......>> .......,.....,....,..... '.~..T.....' ,. ....."'..,.......-.." _..",~,.,....,..... ....... ..,. I. RECIPIENT OBLIGATIONS A. General Requirements 1. Recipient shall conduct activities which substantially conform to the description in Exhibit A, Project Description and Budget. Recipient shall notify ODOT in writing of changes in these activities prior to performing any changes and will not perform any changes to the activities listed in Exhibit A without specific written approval from ODOT. 2. Recipient agrees to comply with all federal, state, and local laws, regulations, executive orders and ordinances applicable to the work under this Agreement, including, without limitation, the provisions of ORS 279.312, 279.314,279.316,279.320,279.555, and OAR Chapter 125 which hereby are incorporated by reference. Without limiting the generality of the foregoing, recipient expressly agrees to comply with (i) Title VI of Civil Rights Act of 1964; (ii) Section V of the Rehabilitation Act of 1973; (Hi) the Americans with Disabilities Act of 1990 and ORS 659.425; (iv) all regulattons and administrative rules established pursuant to the foregoing laws; and (v) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. 3. Recipient shall permit ODOT, the Secretary of the State, the Comptroller General of the United States, the US Department of Transportation, or their authorized representatives, upon reasonable notice, to inspect all vehicles, real property, facilities, equipment purchased by the recipient as part of the project, and/or transportation services rendered by recipient, and/or any subcontractor acting on behalf of the recipient. Recipient shall permit the above named persons to audit the books, records, and accounts of recipient relating to the project. 4. Recipient shall maintain all required records for at least three years after ODOT's final payment, final disposition of grant financed property or equipment, and all other pending matters have been resolved, whichever comes later. 5. Recipient shall defend, save and hold harmless the State of Oregon, including the Oregon Transportation Commission, the Department of Transportation, and their members, officers, agents, and employees from all claims, suits, actions of whatsoever nature resulting from or arising out of the activities of Recipient or its subcontractors, agents or employees under this contract. Recipient shall not be required to indemnify the State for any such liability arising out of negligent acts or omissions of the State of Oregon, its employees, or representatives. This provision is subject to the limitations, if applicable, set forth in Article XI, Section 10 of the Oregon Constitution and in the Oregon Tort Claims Act, ORS 30.260 to 30.300. 3 1 r 6. Recipient shall perform the service under this Agreement as an independent contractor and shall be exclusively responsible for all costs and expenses related to its employment of individuals to perform the work under this Agreement, including but not limited to PERS contributions, workers compensation, unemployment taxes, and state and federal income tax withholdings. B. Audit Requirements 1. Annual Audit. Recipient shall, at Recipient's own expense, submit to OOOT, Public Transit Section, 555 13th St. NE, Salem, OR 97310, an annual audit covering the funds expended under this Agreement and shall submit or cause to be submitted, the annual audit of any subcontractor of Recipient responsible for the financial management of funds received under this Agreement. Said audit(s) shall meet the standards for audits set out in OMB Circular A-133, Audits of States, Local Governments, Non-profit Institutions. FTA has not required an annual audit of a subrecipient when assistance is provided solely in the form of capital equipment procured directly through the State.2. 2. Management letter. Recipient shall also, at Recipient's own expense, submit to OOOT, Public Transit Section, 555 13th St. NE, Salem, OR 97410, a copy of the management letter and/or management report provided by Recipient's auditor to the Recipient, that accompanies an annual audit covering the funds expended under this Agreement and shall submit or cause to be submitted, a copy of the management letter and/or management report provided by Recipient's auditor to the Recipient, that accompanies an annual audit of any subcontractor of Recipient responsible for the financial management of funds received under this Agreement. 3. Audits. Recipient shall permit OOOT to conduct an audit of Recipient's financial and management systems and associated records, including financial records. 4. Pre-Award and Post-Delivery Review. Every Recipient who purchases rolling stock, other than sedans or unmodified vans, must certify that a pre- award and post-deliver review has been conducted to assure compliance with its bid specification, Buy America requirements, and Federal Motor Vehicle Safety requirements as specified in the "Conducting Pre-Award and Post- Oelivery Reviews for Bus Procurements" manual published in May, 1995 and 49 CFR Part 663. Visual inspection and road testing is required when purchasing unmodified vans, cars, or ten or fewer buses. Purchase of more than ten vehicles for the same Recipient requires in-plant inspection. 4 T "T" '. ",- .," ."". ". ...... .,., .,....-'_......''''.~......."...-T.'.'.''." ."" ,-."''''..,-....-,,,...---,..-.,,,,-, C. Federal Requirements 1. Recipient shall comply with Title VI of the Civil Rights Act of 1964 (78 Stat 252; 42 USC 2000d) and the regulations of the United States Department of Transportation (49 CFR 21, Subtitle A), issued pursuant thereto. Recipient shall exclude no person on the grounds of race, religion, color, sex, age, national origin, or disability from the benefits of aid received under this Agreement. 2. Recipient shall Comply with FTA regulation in Title 49 C.F.R. 27.9, "Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance" which implements the Rehabilitation Act of 1973, as amended, and the Americans with Disabilities Act of 1990, and 49 CFR party 37 and 38. 3. Recipient shall comply with FTA "Drug Free Workplace Requirement", Title 49 C.F.R. 29.630 4. Recipient will manage and account for funds and property received under this Agreement in accordance with the provisions of Office of Management and Budget Circular A-1 02, "Uniform Administrative Requirement for Grants-in-Aid to State and Local Governments", Office of Management and Budget Circular A - 87, "Cost Principles for State and Local Government", and 49 CFR Part 18. 5. Recipient's officers, employees, or agents shall neither solicit nor accept gratuities, favors, or anything of monetary value from contractors, potential contractors, or parties to subagreements. No member or delegate to the Congress of the United States of State of Oregon employee shall be admitted to any share or part of this Agreement or any benefit arising therefrom. 6. Recipient will correct any condition which State or FTA believes "creates a serious hazard of death or injury" in accordance with Section 22 of the Federal Transit Act of 1964, as amended. II. ODOT OBLIGATIONS A. State shall reimburse eligible costs incurred in carrying out the project subject to the grant limitation set out in Exhibit A. Such reimbursement shall not exceed the Agreement Amount. Reimbursement to Recipient shall be made on the basis of a quarterly report which shall be compiled and submitted to the State in the format supplied by the State. Said reimbursement may be subject to the satisfactory compliance with Federal Requirements as described herein. Project funds beyond those"required to match this grant shall be considered to be non-participating funds for the purpose of federal-aid matching requirements. 5 T T .."'~ d_,_ ..........'..-'..-....,.........-.T"""-. _......._..._--~.._--""._"-,.. ,..,,"...' B. OOOT certifies, at the time this agreement is executed, that sufficient funds are available and authorized for expenditure to finance costs of this agreement within OOOT's current appropriation or limitation of current biennial budget. III. GENERAL PROVISIONS A. Recipient, its subcontractors, if any, and all employers working under this agreement are subject employers 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. B. This agreement may be terminated by mutual written consent. OOOT may terminate this agreement, in whole or in part, effective upon delivery of written notice to Recipient, or at such later date as may be established by OOOT, under any of the following conditions, but not limited to these conditions. Any termination of this Agreement shall not prejudice any rights or obligations accrued to the parties prior to termination. 1. If recipient fails to provide services called for by this agreement within the time specified herein or any extension thereof, or 2. If Recipient fails to perform any of the other provisions of this agreement, or so fails to pursue the work as to endanger performance of this agreement in accordance with its terms, and after receipt of written notice from OOOT fails to . correct such failures within 10 days or such longer period as OOOT may authorize, or a) If OOOT fails to receive funding, or appropriations, limitations or . other expenditure authority at levels sufficient to pay for the work provided in the agreement, or b) The requisite local funding to continue this project becomes unavailable to Recipient; or, c) Federal or State Laws, rules, regulation or guidelines are modified, changed, or interpreted in such a way that the financial assistance or purchase of equipment provided for in the Agreement is no longer allowable or is no longer eligible for funding proposed by this Agreement; orBoth parties agree that continuation of the Project would not produce results commensurate with the further expenditure of funds, or d) Recipient takes any action pertaining to this Agreement without the approval of OOOT and which under the provisions of this Agreement would have required the approval of OOOT, or 6 T T ". ,",.h ~ -,-,--~ .., "'~.._"-".',,.,.. '-'--"-'T""""'" ,~,--"...'-" ",-.."'..._".....'....,, '..,- e) The commencement, prosecution, or timely completion of the project Recipient is, for any reason, rendered improbable, impossible, or illegal, or f) Recipient is in default under any provision of this Agreement. Any termination of this Agreement shall not prejudice any rights or obligations accrued to the parties prior to termination. 3. Recipient acknowledges and agrees that OOOT, the Secretary of State's Office of the State of Oregon, the federal government, and their duly authorized representatives shall have access to the books, documents, papers, and records of recipient which are directly pertinent to the specific Agreement for the purpose of making audit, examination, excerpts, and transcripts for a period of three years after final payment. Copies of applicable records shall be made available upon request. Payment for costs of copies is reimbursable by OOOT. 4. This Agreement may be revised or amended by a supplemental written Agreement between the parties and executed with the same formalities as this Agreement. 5. This Agreement and attached exhibits constitute the entire Agreement between the parties on the subject matter hereof. There are no understandings, Agreements, or representations, oral or written, not specified herein regarding this Agreement. No waiver, consent, modification or change of terms of this Agreement shall bind either party unless in writing and signed by both parties and all necessary appr9vals have been obtained. Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given. The failure of OOOT to enforce any provision of this Agreement shall not constitute a waiver by ODOT of that or any other provision. 7 f HT' Exhibit A Part I Project Description and Budget Project Description Agreement Local Total Amount Share Operating $23,178 Administration $10,000 TOTAL $33,178 $33,178 $66,356 NOTE: Each project is independent of the others. Completion of one project under budget does not release funds which can be used for the others listed in this program of projects. T .CT. 'T' "T EXHIBIT A Part II Operating Assistance A. Recipient shall bear the cost of insuring vehicles purchased under this agreement. Recipient shall maintain, ifl amounts and form satisfactory to OOOT, such insurance or self-insurance as will be adequate to protect Recipient, vehicle drivers and assistants, vehicle occupants, and protect equipment through the period of use. At a minimum, this shall include comprehensive and collision insurance adequate to repair or replace property and equipment if damaged or destroyed, liability insurance of $10,000 for property damage, $2i,BOO for bodily injury per person, $50,000 bodily injury per occasion, uninsured motorist protection, and personal injury protection as required by ORS, Chapter 806. Recipient shall be responsible for all deductibles or self-insured retention. Recipient shall include the Oregon Department of Transportation, Public Transit Section as "Additional Insured". B. A copy of all executed third party agreements shall be submitted to OOOT. c. Recipient shall submit performance reports. OOOT reserves the right to request such additional information as may be necessary to comply with federal or state reporting requirements. Request for final payment shall include a detailed statement cf revenues and expenditures for the project, including documentation of local match contributions. O. This project is subject to a 50/50 grant/match ratio meaning that the State contributes up to 50% of the approved project cost, not to exceed the Agreement Amount. In the event that actual cost differs from estimated cost, the following applies: 1. Actual cost is less than estimated cost - The State shall contribute up to 50% of the actual cost. 2. Actual cost is more than estimated cost: The State's contribution is limited to 50% of the actual cost or the Agreement Amount, which ever is less. The recipient may elect to contribute local money and continue the project, or discontinue the project. E. Recipient shall submit, approved performance reports, for the duration of the term of agreement. F. Recipient shall provide transportation services to the General Public that can be used effectively. Recipient will exclude no person on the basis of a disability from the benefits of aid received under this Agreement, as required in title 49 C.F.R. Part 27 G. Records of maintenance to manufacturer's specifications shall be kept. Recipient will have to either send copies of maintenance records to the State, and/or provide T T - ,,,., ""-"'"'''''T''' ...,-..'''' records for review at Recipient's site. Equipment shall be maintained to be clean, safe, and mechanically sound. H. Recipient shall ensure that all drivers of equipment have a valid Oregon driver's license and shall have passed a defensive driving course or bus driver's training course. Drivers of equipment designed to carry 16 or more passengers, including the driver, shall have a valid Commerci~1 Driver's License (CDL). I. Recipient shall notify State of its intent to dispose of project equipment. Recipient's interest in equipment is defined to be a share of the fair market value in direct proportion to Recipient's contribution toward purchase cost. Recipient shall follow State's instructions regarding disposition which may includeL:t- 1. Transfer of property to State or another entity with compensation for Recipient's interest in the property; or 2. Transfer to a separate entity with compensation for Recipient interest; or 3. Sale to the public with State and Recipient dividing the proceeds of the sale according to their respective interest in the purchase cost. J. Termination: 1. Upon disposition of all project property and equipment purchased, the State shall notify Recipient that agreement is terminated. 2. For non-use of the equipment for more than ninety (90) consecutive calendar days, the State may, by written notice to Recipient, take possession and process its transfer or disposal. 3. If this Agreement is terminated for cause Recipient shall deliver project property or equipment within twenty-four (24 hours to State at its offices in Salem, or to another agreed upon location. State shall transfer, sell or dispose of the property or equipment and distribute any funds due to Recipient. K. In accepting this Agreement, Recipient certifies that neither Recipient nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participating in this Agreement by any state or federal agency. T T . .... ..' ..,..-~r'" EXHIBIT B SPECIAL SECTION 5333(b) WARRANTY The following language shall be made part of the contract of assistance with the State or other public body charged with allocation and administration of funds provided under 49 U.S.C., Chapter 53: A. General Application The Oregon Department of Transportation (State) agrees that, in the absence of waiver by the Department of Labor, the terms and conditions of this ~prranty, as set forth below, shall apply for the protection of the transportation related employees of any employer providing transportation services assisted by the Project ("Recipient"), and the transportation related employees of any other surface "public transportation providers in the transportation service area of the project. The State shall provide to the Department of Labor and maintain at all times during the Project an accurate, up-to-date listing of all existing transportation providers which are eligible Recipients of transportation assistance funded by the Project in the transportation service area of the Project, and any labor organizations representing the employees of such providers. Certification by the State to the Department of Labor that the designated Recipients have indicated in writing acceptance of the terms and conditions of the warranty arrangement will be sufficient to permit the flow of Chapter 53 funding in the absence of a finding of non-compliance by the Department of Labor. 8. Standard Terms and Conditions (1) The Project shall be carried out in such a manner and upon such terms and conditions as will not adversely affect employees of the Recipient and of any other surface public transportation provider in the transportation service area of the Project. It shall be an obligation of the Recipient and any other legally responsible party designated by the State to assure that any and all transportation services assisted by the Project are contracted for and operated in such manner that they do not impair the rights and interests of affected employees. The term "Project," as used herein shall not be limited to the particular facility, service, or operation assisted by Federal funds, but shall include any changes, whether organizational, operational, technological, or otherwise, which are a result of the assistance provided. The phrase "as a result of the Project" shall when used in this arrangement, include events related to the Project occurring in anticipation of, during, and subsequent to the Project and any program of efficiencies or economies related thereto; provided, however, that volume rises and falls of business, or changes in volume and character of employment brought about by causes other than the Project (including any economies or efficiencies unrelated to the Project) are not within the purview of this arrangement. An employee covered by this arrangement, who is not dismissed, displaced or otherwise worsened in this position with regard to his employment as a result of the T ..,. T (2) (a) (2) (b) (2) (c) Project, but who is dismissed, displaced otherwise worsened solely because of the total or partial termination of the Project, discontinuance of Project services, or exhaustion of Project funding shall not be deemed eligible for a dismissal or displacement allowance within the meaning of paragraphs (6) and (7) of the Model agreement or applicable provisions of substitute comparable arrangements. Where employees of a Recipient are represented for collective bargaining purposes, all Project services provided by that Recipient shall be provided under and in accordance with any collective bargaining agreement applicable to such employees which is then in effect. The RECIPIENT or legally responsible party shall provide~to all affected employees sixty (60) days' notice of intended actions which may result in displacement or dismissals or rearrangements of the working forces. In the case of employees represented by a union, such notice shall be provided by certified mail through their representatives. The notice shall contain a full and adequate statement of the proposed changes, and an estimate of the number of employees affected by the intended changes, and number arid classifications of any jobs in the Recipients employment available to be filled by such affected employees. The procedures of this subparagraph shall apply to cases where notices involve employees represented by a union for collective bargaining purposes. At the request of either the Recipient or the representatives of such employees negotiations for the purposes of reaching agreement with respect to the application of the terms and conditions of this arrangement shall commence immediately. If no agreement is reached within twenty (20) days from the commencement of negotiations, any party to the dispute may submit the matter to dispute settlement procedures in accordan'ce with paragraph (4) of this warranty. The foregoing procedures shall be complied with and carried out prior to the institution of the intended action. (3) For the purpose of providing the statutorily required protections including those specifically mandated by 49 U.S.C. Chapter 531, the State will assure, as a condition of the release of funds, that the Recipient agrees to be bound by the terms and ttttl Such protective arrangements shall include, without being limited to, such provisions as may be necessary for (1) the preservation of rights, privileges, and benefits (including continuation of pension rights and benefits) under existing collective bargaining agreements or otherwise; (2) the continuation of collective bargaining rights; (3) the protection of individual employees against a worsening of their positions with respect to their employment; (4) assurances of employment to employees of acquired mass transportation systems and priority of reemployment of employees terminated or laid off; and (5) paid training and retraining programs. Such arrangements shall include provisions protecting individual employees against a worsening of their positions with respect to their employment which shall in no event provide benefits less than those established pursuant to Section 5(2)(f) of the Act of February 4, 1887 (24 State. 379), as amended. T T'" --"r'" .,,',".....",., .~, .,,, .... ..,..., ,,,",.,,-~-----, -..--.''" conditions of the National (Model) Section 5333(b) Agreement executed July 23, 1975, identified belovl, provided that other comparable arrangements may be substituted therefor, if approved by the Secretary of labor and certified for inclusion in these conditions, . (4) Any dispute or controversy arising regarding the application, interpretation, or enforcement of any of the provisions of this arrangement which cannot be settled by and between the parties to any final and binding disputes settlement procedure acceptable to the parties, or in the event they cannot agree upon such procedure, to the Department of labor or an impartial third party designated by the Department of labor for final and binding determination. The compensation and expenses of the impartial third party, and any other jointly incurred expenses, shall be borne equally by the parties to the proceeding and the party incurring them shall pay all other expenses. In the event of any dispute as to whether or not a particular employee was affected by the Project, it shall be his obligation to identify the Project and specify the pertinent facts of the Project relied upon. It shall then be the burden of either the Recipient of these conditions to prove that factors other than the Project affected the employees. The claiming employee shall prevail if it is established that the Project had an effect upon the employee even if other factors may also have affected the employee. (5) The Recipient or other legally responsible party designated by the State will be financially responsible for the application of these conditions and will make the necessary arrangements so that any employee covered by these arrangements, or the union representative of such employee, may file claim of violation of these arrangements with the Recipient within sixty (60) days of the date he is terminated or laid off as a result of the Project, or within eighteen (18) months of the date his position with respect to his employment is otherwise worsened as a result of the Project. In the latter case, if the events giving rise to the claim has occurred over an extended period, the 18-month limitation shall be measured from the last such event. No benefits shall be payable for any period prior to six (6) months from the date of the filing of any claim. (6) Nothing in this arrangement shall be construed as depriving any employee of any rights or benefits which such employee may have under existing employment or collective bargaining agreements, nor shall this arrangement be deemed a waiver of any rights of any union or of any represented employee derived from any other agreement or provision of federal, state or local law, (7) In the event any employee covered by these arrangements is terminated or laid off as a result of the Project, he shall be granted priority of employment or reemployment to fill any vacant position within the control of the Recipient for which he is, or by training or retraining within a reasonable period, can become qualified. In the event such employment or reemployment requires training or retraining, the Recipient or other ttrr For purposes of this warranty arrangement, paragraphs (1); (2); (5); (15); (22); (23); (24); (26)r-(27); (28); and (29) of the Model Section 13(c) Agreement, executed July 23, 1975 are to be omitted. T T' legally responsible party designated by the State shall provide or provide for such training or retraining at no cost to the employee. (8) The Recipient will post, in a prominent and accessible place, a notice stating that the Recipient has received federal assistance under the Federal Transit Act and has agreed to comply with the provisions of 49 U.S.C. Chapter 53. This notice shall also specify the terms and conditions set forth herein for the protection of employees. The recipient shall maintain and keep on file all relevant books and records in sufficient detail as to provide the basic information necessary to the proper application, administration, and enforcement of these arrangements and to the proper determination of any claims arising thereunder. '_l" (9) Any labor organization which is the collective bargaining representative of employees covered by these arrangements, may become a party to these arrangements by serving written notice of its desire to do so upon the Recipient and the Department of Labor. In the event of any disagreement that such labor organization represents covered employees, or is otherwise eligible to become a party to these arrangements, as applied to the Project, the dispute as to whether such organization shall participate shall be determined by the Secretary of Labor. (10) In the event the Project is approved for assistance under the Act, the foregoing terms and conditions shall be made part of the contract of assistance between the federal government and the State or recipient of federal funds; provided, however, that this arrangement shall not merge into the contract of assistance, but shall be independently binding and enforceable by and upon ',the parties thereto, and by any covered employee or his representative, in accordance with its terms, nor shall any other employee protective agreement merge into this arrangement, but each shall be independently binding and enforceable by and upon the parties thereto, in accordance with its terms. C. Waiver As a part of the grant approval process, either the Recipient or other legally responsible party designated by the State may in writing seek from the Secretary of Labor a waiver of the statutorily required protections, The Secretary will waive these protections in cases, where at the time of the requested waiver, the Secretary determines that there are no employees of the Recipient or any other surface public transportation providers in the transportation service area who could be potentially affected by the project. A 30-day notice of proposed waiver will be given by the Department of Labor and in the absence of timely objection, the waiver will become final at the end of the 30-day notice period. In the event of timely objection, the Department of Labor will review the matter and determine whether a waiver shall be granted, In the absence of waiver, these protections shall apply to the Project. T T '."... 'r~"'''''''' EXHIBIT C DISADVANTAGED BUSINESS ENTERPRISE (DBE) POLICY . In accordance with Title 49, Code of Federal Regulations, Part 23, or as may be amended (49 CFR 23), Contractor shall agree to abide by and take all necessary and reasonable steps to comply with the following statement: ' DBE Policy. It is the policy of the Oregon Department of Transportation (Agency) that Disadvantaged Business Enterprises as defined in 49 CFR 23 shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with federal funds. Consequently, the DBE requirements of 49 CFR 23 apply to this contract, DBE Obligations. Contractor agrees to ensure that Disadvantaged Business Enterprises as defined in 49 CFR 23 have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds. In this regard, Contractor shall take all necessary and reasonable steps in accordance with 49 CFR 23 to ensure that Disadvantaged Business Enterprises have the maximum opportunity to compete for and perform contracts. Contractors shall not discriminate on the basis of race, color, national origin or sex in the award and performance of federally assisted contracts. The DBE Policy Statement shall be included in all subcontracts entered into under this contract, Records and Reports. Contractor shall provide monthly documentation to Agency that it is subcontracting with or purchasing materials from the DBEs identified to meet contract goals. Contractor shall notify Agency and obtain its written approval before replacing a DBE or making any change in the DBE participation listed. If a DBE is unable to fulfill the original obligation to the contract, Contractor must demonstrate to Agency the Affirmative Action steps taken to replace the DBE with another DBE. Failure to do so will result in withholding payment on those items. The monthly Rev 10/01/97 ~ C:\lyndaS\Toots & Forms\EXHIBIT 1.doc T -Y' documentation will not be required after the DBE goal commitment is satisfactory to Agency, Any DBE participation attairtee should be reported to Agency. DBE Certification. Only firms certified by the Office of Minority, Women, & Emerging Small Business (OMWESB) Department of Consumer & Business Services (DCBS) as DBE firms may be utilized to satisfy this obligation. To verify certification status of a DBE firm, contact OMWESB at (503) 947-7976 or by internet access to OMWESB's web site: http://www.cbs.state.or.us/external/omwesb/ind eX.html By signing this contract, Contractor assures that good faith efforts have been made to meet the goal for the DBE participation specified in the Request for.. Proposal/Qualification for this project as required by ORS 200.045. FOR INQUIRY CONCERNING ODOT'S DBE PROGRAM REQUIREMENT, CONTACT OFFICE OF CIVIL RIGHTS AT (503) 986-4354. DBE Program Policy It is the policy of the Oregon Department of Transportation (Agency), its recipients and contractors to provide Disadvantaged Business Enterprises (DBEs), as defined in 49 CFR 23 and the Inter-modal Transportation Efficiency Act of 1991, with the maximum opportunity to participate in the performance of contracts financed in whole or in part with federal funds. Good Faith Efforts: To determine whether a consultant has failed to meet the assigned goal but still may be awarded the contract, Agency must decide if the consultant put forth good faith efforts to meet the goal. Consultants failing to meet the assigned goal must include documentation of good faith efforts in performing the following: ,~~ a. The consultant attended any pre-solicitation or pre-bid meetings scheduled to inform disadvantaged, minority or women business enterprises of contracting and -subcontracting opportunities on the project; b. The consultant identified and selected specific economically feasible project units disadvantaged, minority or women business enterprises could perform; c. The consultant advertised in general circulation, trade association, minority and trade oriented women-focus publications, if any, concerning the subcontracting; d. The consultant provided written notice to a reasonable number of specific disadvantaged, minority or women business enterprises drawn from an Agency list of certified disadvantaged, minority or women business enterprises for selected disciplines in sufficient time to allow the enterprises to participate; e. The consultant followed up initial solicitations to determine whether the enterprises were interested; f. The consultant provided interested disadvantaged, minority or women business enterprises with adequate information about the plans, specifications and requirements for the selected subcontracting; g. The consultant negotiated in good faith with the enterprises, and did not reject any disadvantaged, minority or women business enterprises without justifiable reason; h. Where applicable, the consultant advised and made efforts to help interested disadvantaged, minority or women business enterprises obtain bonding, lines of credit or insurance Agency or contractor requires; 1. The consultant's efforts to obtain disadvantaged, minority or women business enterprise participation were reasonably expected to produce a level of participation sufficient to meet Agency goals or requirements and; J. The consultant used the services of minority community organizations, minority contractor groups, local, state and federal minority business assistance offices and other organizations the Advocate for Minority and Women Business identified that help recruit and place disadvantaged, minority or women business enterprises. T Y" ''''r ,., ." ''1t" . Exhibit D PROVISIONS TO BE INCLUDED IN CONTRACTS One of the principles of contracting with Federal funds received directly or indirectly from FT A is a recognition that. as a condition of receiving the funds, certain specific requirements must be met not only by the recipient but also by the sub-recipients and contractors. To the extent applicable, Federal requirements extend to third party contractors and their contracts at every tier and subrecipients and their subagreements at every tier. In accepting this Agreement, Recipient agrees to comply with all Federal provisions applicable to this agreement. Recipient further agrees to indude applicable dauses in all third-party, subrecipient, and/or subcontractor agreements. The specific requirements for particular grant funds will be found in the Master Agreement incorporC\tep into this Agreement by reference. Failure to comply with these provisions may, in accordance with the terms 'Of your grant or agreement, be grounds for default of that agreement and result in the loss of the funds. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- DRUG AND ALCOHOL TESTING ~5331 CFR Parts 653 and 654 A. Drug and Alcohol Testing Option 1 1. The contractor agrees to: a) participate in (grantee or recipient's) drug and alcohol program established in compliance with 49 CFR 653 and 654. 8. Drug and Alcohol Testing Option 2 1. The contractor agrees to: a) 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 (name of State), or the (insert name of grantee), 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 (insert date) and to submit the Management Information System (MIS) reports before Onsert date before March 15) to Onsert title and address of person responsible for receiving information). To certify compliance the contractor shall use the .Substance Abuse Certifications. in the .Annual Ust of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements," which is published annually. in the Federal Register. c. Drug and Alcohol Testing Option 3 1. The contractor agrees to: a) 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 (name of State), or the (insert name of grantee), 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 E-1 T T' further to certify annually its compliance with Parts 653 and 654 before (insert date) and to submit the Management Information System (MIS) reports before (insert date before March 15) to (insert title and address of person responsible for receiving information). 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 [Select a, b, or c) (a) submit before (insert date or upon request) a copy of the Policy Statement developed to implement its drug and alcohol testing program; OR (6) adopt (insert title of the Policy Statement the recipient wishes the contractor to use) as its policy statement as required under 49 CFR 653 and 654; OR (c) submit for review and approval before ( insert date or upon request) a copy of its Policy Statement developed to implement its drug and alcohol testing program. In addition, the contractor agrees to: (to be determined by the recipient, but may address areas such as: the selection of the certified laboratory, substance abuse professional, or Medical Review Officer, or the use of a consortium). ==========================================================================~~=== CHARTER BUS REQUIREMENTS 5323( d) CFR Part 604 --' I. Model Clause/Language . A. The relevant statutes and regulations do not mandate any specific dause or language. The following clause has been developed by FTA. 1. 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 FTA 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. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- SCHOOL BUS REQUIREMENTS 5323(F) CFR Part 605 I. Model ClauselLanguage A. The relevant statutes and regulations do not mandate any specific dause or language. The following dause has been developed by FT A. 1. 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 exdusively for the transportation of students and school personnel in competition with private school bus operators unless qualified under specified exemptions. When operating exdusive school bus service under an allowable exemption, recipients and subrecipients may not use federally funded equipment, vehides, or facilities, --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- E-2 T T ENERGY CONSERVATION REQUIREMENTS 6321 et seq. CFR Part 18 I. Model Clausellanguage A. No specific dause is recommended in the regulations because the Energy Conservation requirements are so dependent on the state energy conservation plan. The following language has been developed by FT A. 1. 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 Ad. ;0. .,~ --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- CLEAN WATER REQUIREMENTS 1251 I. Model Clause/Language A. While no mandatory dause is contained in the Federal Water Pollution Control Act, as amended, the following language developed by FTA contains all the mandatory requirements. 1. Clean Water - a) 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 tum, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. b) The Contractor also agrees to indude these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. ------------------------------------------------------------------------ ------------------------------------------------------------------------ LOBBYING 1352 CFR Part 19 CFR Part 20 I. Mandatory Clausellanguage A. Clause and specific language therein are mandated by 49 CFR Part 19, Appendix A. B. Modifications have been made to the Clause pursuant to Section 10 of the Lobbying Disdosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. ~ 1601, et seq.) 1. - 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 ~ 20.110(d) 2. - 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. E-3 T Y" C, Modifications have been made to the lobbying Certification pursuant to Section 10 of the lobbying Disdosure Act of 1995. 1. - Use of "Disdosure 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 (1/19196) is mandated by 49 CFR Part 20, Appendix A. 2, Byrd Anti-lobbying Amendment, 31 U.S.C. 1352, as amended by the lobbying Disdosure 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 disdose the~l)Sme of any registrant under the lobbying Disdosure 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 disdosures are forwarded from tier to tier up to the recipient. E-4 T Y' CFR PART 20-CERTIFICA TION 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: 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. 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 Fe~ral contract, grant, loan, or cooperative agreement, the undersigned shall complete and 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 .)] 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. ~ 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. ~ 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, I 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. Date Signature of Contractor's Authorized Official Name and Title of Contractor's Authorized Official E-5 , , 'YO' -r ,.",.,. ACCESS TO RECORDS AND REPORTS 5325 CFR 18.36 CFR 633.17 I. Model ClauselLanguage A. The specified language is not mandated by the statutes or regulations referenced, but the language provided paraphrases the statutory or regulatory language. B. 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 Comptrollec~.eneral of the Unites 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 induding 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 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, an 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 FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 U.S.C. 5325(a) enters into a contract for a capital project or improvement (defined at 49 U,S.C. 5302(a)1) through other than competitive bidding, the Contractor shall make available records related to the contract to the Purchaser, the Secretary of Transportation and the Comptroller General or any authorized officer or employee of any of them for the purposes of conducting an audit and inspection. 5. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. 6. The Contractor agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration ofthis contract, except in the event of litigation or settlement of daims 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, daims or exceptions related thereto. Reference 49 CFR 18.39(i)(11). ================================================================================= FEDERAL CHANGES E~ T T CFR Part 18 I. Model ClauselLanguage A, No specific language is mandated. FTA has developed the following language. 1. Federal Changes - Contractor shall at all times comply with all applicable FT A regulations, policies, procedures and directives, induding without limitation those listed directly or by reference in the Agreement (Form FTA MA (2) dated October, 1995) between Purchaser and FT A , 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. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- CLEAN AIR 7401 et seq CFR 15.61 ."~' CFR Part 18 .ll' I. Model Clauses/Language A. No specific language is required. FTA has proposed the following language. . 1. Clean Air - a) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. ~~ 7401 et seq . The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. b) The Contractor also agrees to indude these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FT A. ================================================================================= RECYCLED PRODUCTS 6962 CFR Part 247 Executive Order 12873 I. Model ClauselLanguage A. No specific dause is mandated, but FTA has developed the following language. 1. 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), induding 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. ------------------------------------------------------------------ ------------------------------------------------------------------ CONTRACT WORK HOURS AND SAFETY STANDARDS ACT ~~ 327 -333 (1995) ~ 5 (1995) ~ 1926 (1995) E-7 T .T Applicability to Contracts A. Section 102 of the Act, which deals with overtime requirements, applies to: 1. - all construction contracts in excess of $2,000 and; 2. - all turnkey, rolling stock and operational contracts (exduding contracts for transportation services) in excess of ~2,500. 3. (The dollar threshold for this requirement is contained in the current regulation 29 C.F.R. ~ 5.15.) 4. 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 artides normally available on the open market. , .." II. Flow Down A. Applies to third party contractors and subcontractors. III. Model ClauseslLanguage A. Pursuant to Section 102 (Overtime): B, (These dauses are specifically mandated under DOL regulation 29 C.F.R. ~ 5.5 and when preparing a construction contract in excess of $2,000 these dauses should be used in conjunction with the Davis-Bacon Act dauses 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 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 dause 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, induding watchmen and guards. employed in violation of the dause 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 dause set forth in paragraph (1) of this section. 3. Withholding for unpaid wages and liquidated damages - The (write in the name of the grantee or 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. 1, Subcontracts - The contractor or subcontractor shall insert in any subcontracts the dauses set forth in this section and also a dause requiring the subcontractors to indude these dauses in any lower tier subcontracts. The prime contractor shall be responsible for E-8 , ''9' ""'""r" 'T'"' compliance by any subcontractor or lower tier subcontractor with the dauses set forth in this section. C, ( Section 102 nonconstruction contracts should also have the following provision:) 1 . Payrolls and basic records - 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 dassification, 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 Secretarycontractor 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 uAder 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 dassification, hourly rates of wages paid (induding 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 (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 project. - D, Section 107 (OSHA): 1. (This section is applicable to construction contracts only) a) Contract Wor1<; Hours and Safety Standards Act - (i) The Contractor agrees to comply with section 107 of the Contract t 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. b) Subcontracts - The Contractor also agrees to indude 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 fumishing 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 subcosubcontract. The term "subcontract" under this section is considered to refer to a person who agrees --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- NO GOVERNMENT OBUGA TION TO THIRD PARTIES I. Model ClauselLanguage E-9 T 'yo A. While no specific language is required, FTA has developed the following language, 1. No Obligation by the Federal Govemment. a) The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the ",nderlying contract. b) The Contractor agrees to include the above dause in each subcontract financed in whole or in part with Federal assistance provided by FT A. It is further agreed that the dause shall not be modified, except to identify the subcontractor who will be subject to its provisions. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- ',,:0 r PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS 3801 et seq. CFR Part 3118 U.S.C. 1001 5307 I. Model Clause/Language 1, These requirements have no specified language, so FTA proffers the following language. 2. Program Fraud and False or Fraudulent Statements or Related Acts. a) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. ~ ~ 3801 et seq . and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or caus~s to be made, pertaining to the underlying contract or the FT A 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 daim, 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. b) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent daim, 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 FT A under the authority of 49 U.S.C. S 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, c) The Contractor agrees to indude the above two dauses in each subcontract financed in whole or in part with Federal assistance provided by FT A. It is further agreed that the dauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. E-10 T I' I TERMINATION U.S.C.Part 18 FTA Circular 4220.10 I. Model Clausellanguage A. FTA does not prescribe the form or content of such dauses, The following are suggestions of dauses to be used in different types of contracts: 1. Termination for Convenience (General Provision) The (Recipient) may terminate this contract, in whole or in part, at any time by written notice to the Contractor when it is in the Govemment's best interest. The Contractor shall be paid its costs, induding contract dose-out costswhole or in part, at any time by written notice to the Contractor when it is in the Govemment's best interest. The Contractor shall be paid its costs, induding contract dose-out costs, and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to (Recipient) to be paid the Contractor ' ,,~ 2. Termination for Default [Breach or Cause] (General Provision) If the Contractor does not deliver supplies in accordance with the contract delivery schedule, or, if the contract is for services, the Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, the (Recipient) may terminate this contract for default. Serving a notice of termination on the contractor setting forth the manner in which the Contractor is in default shall effect termination. 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. a) If it is later determined by the (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 (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. b) Opportunity to Cure (General Provision) The (Recipient) in its sole discretion may, in the case of a termination for breach or default, allow the Contractor [an appropriately short period of time] in which to cure the defect. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions. c) If Contractor fails to remedy to (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 (Recipient) setting forth the nature of said breach or default, (Recipient) shall have the right to tenninate the Contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to predude (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 (Recipient) elects to waive its remedies for any breach by Contractor of any covenant, term or condition of this Contract, such waiver by (Recipient) shall not limit (Recipient)'s remedies for any succeeding breach cff that or of any other term, covenant, or condition of this Contract. 3. Termination for Convenience (Professional or Transit Service Contracts) The (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. 4. 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 (Recipient) may terminate this contract for default. The (Recipient) shall terminate by delivering to the E-11 1 T I."T'.' T 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. a) 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. 5. Termination for Default (Transportation Services) a) If the Contractor fails to piCk up the commodities or to perform the services, induding 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 (Recipient) may terminate this contract for default. The (Recipient) shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of default. The Contractor will only be paid the contr~ct,.Price for services performed in accordance with the manner of performanCe set forth in this contract, b) If this contract is terminated while the Contractor has possession of Recipient goods, the Contractor shall, upon direction of the (Recipient), protect and preserve the goods until surrendered to the Recipient or its agent. The Contractor and (Recipient) shall agree on payment for the preservation and protection of goods. Failure to agree on an amount will be resolved under.the Dispute dause. c) 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). 6. 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 (Recipient) may terminate this contract for default. The (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 indudes any increased costs incurred by the Recipient in completing the work. a) 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 indude: 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 [10] days from the beginning of any delay, notifies the (Recipient) in writing of the causes of delay. If in the judgment of the (Recipient), the delay is excusable, the time for completing the work shall be extended. The judgment of the (Recipient) shall be final and conclusive on the parties, but subject to appeal under the Disputes dauses. b) 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 E-12 'T' obligations of the parties will be the same as if the termination had been issued for the convenience of the Recipient. 7 , Termination for Convenience or Default (Architect and Engineering) a) The (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 obligqtions. The (Recterminate 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 (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, b} 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. c) 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. d) If, after termination for failure to fulfill contract obligations, it is determined1hat 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. 8. Termination for Convenience or Default (Cost-Type Contracts) a) The (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 (Recipient) or for the default of the Contractor. b) 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 (Recipient), or property supplied to the Contractor by the (Recipient). c} If the termination is for default, the (Recipient) may fix the fee, if the contract provides for a fee, to be paid the contractor in proportion to the value, if any, of work performed up to the time of termination. The Contractor shall promptly submit its termination daim to the (Recipient) and the parties shall negotiate the termination settlement to be paid the Contractor. d} If the termination is for the convenience of the (Recipient), the Contractor shall be paid its contract c1ose-out costs, and a fee, if the contract provided for payment of a fee, in proportion to the work performed up to the time of termination, e) If, after serving a notice of termination for default, the (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 (Recipient), after setting up a new work schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience. ------------------------------------------------------------------ ------------------------------------------------------------------ GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) CFR Part 29 Executive Order 12549 E-13 9 'Y' ''''.......,-'-r-....~'~+.+ Model ClauselLanguage A. The certification and instruction language is contained at 29 CFR Part 29, Appendix B, and must be induded in IFB's and RFP's [for indusion by contractors in their bids or proposals] for all contracts over $100,000, regardless of the type of contract to be awarded. 8. Certification Regarding Debarment, Suspension, and Other Responsibility Matters - Lower Tier Covered Transactions (Third Party Contracts over $100,000). C. 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. a) The certification in this dause 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. !,"dered an erroneous certification, in addition to other remedies available to the Federal Government, (Recipient) may pursue available remedies, induding suspension and/or debarment. b) The prospective lower tier participant shall provide immediate written notice to (Recipient) if at any time the prospective lower tier participant leams that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. c) The terms "covered transaction," "debarred: "suspended: "ineligible," "lower tier covered transaction: :"participant: "persons: "lower tier covered transaction: "principal," "proposal," and "voluntarily exduded," as used in this dause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549 (49 CFR Part 29]. You may contact (Recipient) for assistance in obtaining a copy of those regulations. 2. 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, dedared ineligible, or voluntarily exduded from participation in this covered transaction, unless authorized in writing by (Recipient). 3. The prospective lower tier participant further agrees by submitting this proposal that it will indude the dause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exdusion - Lower Tier Covered Transaction", without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 4. 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 exduded 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. 5. 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 dause. 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. 6. 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 exduded from participation in this transaction, in addition to all remedies available to the Federal Government, (Recipient) may pursue available remedies induding suspension and/or debarment. D, "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transaction" E-14 ~ , y' -r""'-~"""""-" .,-_._....._...~..~~_..,..... 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. ~ 29.105(p)) is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily exduded from participation its .principals. [as defined at 49 C.F.R. ~ 29.105(p)) 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. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- PRIVACY ACT 552 I. Model Clause/Language A. The text of the following clause has not been mandated by statute or specific regulafton, but has been developed by FT A. 1, 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: 2. 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, 3. U.S.C. ~ 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 Govemment. The Contractor understands that the requirements of the Privacy Act, induding the civil and criminal penalties for violation of that Ad, apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may result in termination of the underlying contract. 4. The Contractor also agrees to indude 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. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- CIVIL RIGHTS REQUIREMENTS ~ 623, 42 U.S.C. ~ 2000 ~ 6102, 42 U.S.C. ~ 12112 ~ 12132, 49 U.S.C. ~ 5332 CFR Part 1630, 41 CFR Parts 60 et seq. I. Model ClauselLanguage A. The following dause was predicated on language contained at 49 CFR Part Appendix A, but FT A has shorten the lengthy text. B. Civil Rights - The following requirements apply to the underlying contract: 1, Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended. 42 U.s.c. ~ 2000d, section 303 of the Age Discrimination Act of 1975, as amended. 42 U.S.C. ~ 6102, section 202 of the Americans with Disabilities Act of 1990,42 U.S.C. ~ 12132, and Federal transit law at 49 U.S.C. ~ 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue, 2. Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. ~ 2000e, and E-15 T T Federal transit laws at 49 U.S.C. ~ 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S, DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," C.F.R. Parts 60 et seq ., (which implement Executive Order No. 11246, "Equal Employment Opportunity; as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. ~ 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Fede~al 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 FTA may issue. '_ll' 3, Age -In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U,S.C. ~ ~ 623 and Federal transit law at 49 U.S.C, ~ 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. 4, Disabilities -In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. ~ 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630. pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FT A may issue. 5, The Contractor also agrees to indude 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. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- BREACHES AND DISPUTE RESOLUTION CFR Part 18 FT A Circular 4220.10 I. Model Clauses/Language A. FT A does not prescribe the form or content of such provisions. What provisions are developed will depend on the circumstances and the type of contract. Recipients should consult legal counsel in developing appropriate dauses. The following clauses are examples of provisions from various FT A third party contracts. 1. 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 (Recipient)'s [title of employee]. This decision shall be final and conclusive unless within [ten (10)] days from the date of the parties shall be decided in writing by the authorized representative of (Recipient)'s [title of employee]. This decision shall be final and condusive unless within [ten (10)] days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the [title of employee]. In connection with any such appeal, the Contractor shall be afforded 2, Performance During Dispute - Unless otherwise directed by (Recipient), Contractor shall continue performance under this Contract while matters in dispute are being resolved, _3, Claims for Damages - Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of his employees, agents or others for whose acts he is legally liable, a claim for damages E-16 1 T' therefor shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage. 4. Remedies - Unless this contract provides otherwise, all daims, counterdaims, disputes and other matters in question between the (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 (Recipient) is located. 5. Rights and Remedies - The duties and obligations imposed by the Contract Documents and the rights and remedies availa~le 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 (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, , ,. ================================================================================= TRANSIT EMPLOYEE PROTECTIVE AGREEMENTS U.S.C. ~ 5310, ~ 5311, and ~ 5333 CFR Part 215 I. Model ClauselLanguage A. Since no mandatory language is specified, FTA had developed the following language. Transit Employee Protective Provisions, B. The Contractor agrees to the comply with applicable transit employee protective requirements as follows: 1. General Transit Employee Protective Requirements - To the extent that FTA determines that transit operations are involveQ, the Contractor agrees to carry out the transit operations work on the underlying 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 the underlying contract. The Contractor agrees to carry out that work in compliance with the conditions stated in that U.S. DOL letters. 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. ~ 5310(a)(2), or for projects for non urbanized areas authorized by 49 U.S.C. ~ 5311. Alternate provisions for those projects are set forth in subsection (b) and (c) of this dause. 2. Transit Employee Protective Requirements for Projects Authorized by 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. ~ 5310(a)(2), and jfthe U.S. Secretary ofTransportation has determined or determines in the future that the employee protective requirements of 49 U.S.C. ~ 5333(b) are necessary or appropriate for the state and the public body subrecipient for which work is performed on the underlying 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. ~ 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 the underlying contract in compliance with the conditions stated in that U.S. DOL letters. 3. Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C, ~ 5311 in Nonurbanized Areas - If the contract involves transit operations financed in whole or in part with Federal assistance authorized by 49 U.S.C. ~ 5311, the Contractor agrees to E-17 1 T 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. C. The Contractor also agrees to indude the any applicable requirements in each subcontract involving transit operations financed in whole or in part with Federal assistance provided by FTA. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- ....."" E-18 T T 'T -., --r-.. I DISADVANTAGED BUSINESS ENTERPRISE (DBE) CFR Part 23 I. Applicability to Contracts A. DBE provisions only apply to all DOT-assisted contracts. II. Flow Down A. These requirements only flow to FT A recipients who receive at least $250,000 in FT A capital and operating funds, exdusive of funds for transit vehide purchases [reference 49 CFR 23.67], or $100,000 in FTA planning funds. III. Model Clause/Language '..~ A. B. No specific language is mandated, but FTA has induded language developed by Southwest Ohio Regional Transit Authority (SORTA). IV, Disadvantaged Business Enterprise Provision A. The Federal Fiscal Year goal has been set by (name of grantee) in an attempt to match projected procurements with available qualified disadvantaged businesses. (name of grantee) goals for budgeted service contracts, bus parts, and other material and supplies for Disadvantaged Business Enterprises have been established by (name of grantee) as set forth by the Department of Transportation Regulations 49 C.F.R. Part 23, March 31, 1980, and amended by Section 106(c) of the Surface Transportation Assistance Act of 1987, and is considered pertinent to any contract resulting from this request for proposal. B. If a specific DBE goal is assigned to this contract, jt will be dearly stated in the Special Specifications, and if the contractor is found to have failed to exert sufficient, reasonable, and good faith efforts to involve OBE's in the work provided, <name of grantee) may dedare the Contractor noncornplaint and in breach of contract. If a goal is not stated in the Special Specifications, it will be understood that no specific goal is assigned to this contract. 1. Policy - It is the policy of the Department of Transportation and (name of grantee) that Disadvantaged Business Enterprises, as defined in 49 CFR Part 23, and as amended in Section 106(c) of the Surface Transportation and Uniform Relocation Assistance Act of 1987, shall have the maximum opportunity to participate in the performance of Contract financed in whole or in part with federal funds under this Agreement. Consequently, the DBE requirements of 49 CFR Part 23 and Section 106(c) of the STURAA of 1987, apply to this Contract. 2. The Contractor agrees to ensure that DBEs as defined in 49 CFR Part 23 and Section 106(c) of the STURM of 1987, have the maximum opportunity to participate in the whole or in part with federal funds provided under this Agreement. In this regard, the Contractor shall take all necessary and reasonable steps in accordance with the regulations to ensure that DBEs have the maximum opportunity to compete for and perform subcontracts. The Contractor shall not discriminate on the basis of race, color, national origin, religion, sex, age or physical handicap in the award and performance of subcontracts. 3. It is further the policy of (name of grantee) to promote the development and increase the participation of businesses owned and controlled by disadvantaged. DBE involvement in all phases of (name of grantee) procurement activities is encouraged. 4. DBE obligation - The Contractor and its subcontractors agree to ensure that disadvantaged businesses have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with federal funds provided under the Agreement. In that regard, all Contractors and subcontractors shall take all necessary and reasonable steps in accordance with 49 CFR Part 23 as amended, E-19 1 .Y' to ensure that minority business enterprises have the maximum opportunity to compete for and perform contracts. 5. VVhere the Contractor is found to have failed to exert sufficient reasonable and good faith efforts to involve DBE's in the work provided, (name of grantee) may dedare the contractor noncomplaint and in breach of contract. 6. The Contractor will keep records and documents for a reasonable time following performance of this contract to indicate compliance with (name of grantee) DBE program. These records and documents will be made available at reasonable times and places for inspection by any authorized repre,sentative of (name of grantee) and will be submitted to (name of grantee) upon request. 7. (Name of grantee) will provide affirmative assistance as may be reasonable and necessary to assist the prime contractor in implementing their programs for DBE participation. The assistance may indude the following upon request: a) .. Identification of qualified DBE ....:" b) .. Available listing of Minority Assistance Agencies c) .. Holding bid conferences to emphasize requirements C. DBE Program Definitions, as used in the contract: 1, Disadvantaged business "means a small business concern": a) VVhich is at least 51 percent owned by one or more socially and economically disadvantaged individuals, or, in the case of any publicly owned business, at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals; and b) VVhose management and daily business operations are controlled by one or more c) of the socially and economically disadvantaged individuals who own it. or d) VVhich is at least 51 percent owned by one or more women individuals, or in the case of any publidy owned business, at least 51 % of the stock of which is owned by one or more women individuals; and e) VVhose management and daily business operations are controlled by f) one or more women individuals who own it. 2. "Small business concern" means a small business as defined by Section 3 of the Small Business Act and Appendix B - (Section 106(c)} Determinations of Business Size. 3. "Socially and economically disadvantaged individuals" means those individuals who are citizens of the United States (or lawfully admitted permanent residents) and States (or lawfully admitted permanent residents) and who are black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Asian-Indian Americans, or women, and any other minorities or individuals found to be disadvantaged by the Small Business Administration pursuant to section 8(a) ofthe Small Business Act. a) "Black Americans", which indudes perscm~ having origins in any of the Black racial groups of Africa; ':./ b) "Hispanic Americans", which indudes persons of Mexican, Puerto c) Rican, d) Cuba, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race; e) "Native Americans', which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians; E-20 T 'TO " - .".. ......".."" ""--r '"......-~+.,..."..,-"...~.".... ,'. f) "Asian-Pacific Americans", which indudes persons whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the U.S. Trust Territories of Pacific, and the Northem Marianas; g) "Asian-Indian Americans", which indudes persons whose origins are from India, Pakistan, and Bangladesh. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- STATE AND LOCAL LAW DISCLAIMER I. Model ClauselLanguage A. FT A has developed the following language. 1 . State and Local Law Disclaimer - The use of many of the suggested clauses are not govemed by Federal law, but are significantly affected by State law. The language ofthe suggested dauses may need to be modified depending on state law, and that before the suggested dauses are used in the grantees procurement documents, the grantees should consult with their local attorney. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS. FTA Circular 4220.10 I. Applicability to Contracts A. The incorporation of FT A terms applies to all contracts. II. Flow Down A. The incorporation of FT A terms has unlimited flow down. III. Model ClauselLanguage A. FT A has developed the following incorporation of term's language: 1. Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions indude, 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 4220.10, dated April 15, 1996, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any (name of grantee) requests which would cause (name of grantee) to be in violation of the FTA terms and conditions. E-21 '. ~ .."..... . , ...-......+<<---^....---..,.----.."""'""-"'...,. ,.,.......................~"'--',._.......,.............~,..."'-""""..,""'_.'-"""-.""~-"....-.,,~'"'-.,._-~-~~.....,"-.._.._~._+...--,.. EXHIBIT E FINANCIAL INFORMATION The information below will assist auditors prepare a report in compliance with the requirement of Office of Budget and Management (OMB) Circular A-128 and OMB Circular A-133 This grant is financed by the funding source(s) as indicated below: Federal Program Title Federal Funds Available through the following: Federal Grant Number(s): OR184015Z56, OR185014Z56 Total Federal Funding: $33,178 . Federal Funding Agency U.S. Department of Transportation Federal Transit Administration Region X Suite 3142 Federal Building 915 Second Avenue Seattle, WA 98174 T T-