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Res 1495 - Itfd Str/St to Sp As COUNCIL BILL NO. 1904 RESOLUTION NO. 1495 A RESOLUTION CLARIFYING INTERFUND BORROWING FROM THE STREET/STORM CIF FUND TO THE SPECIAL ASSESSMENT FUND DURING FISCAL YEAR 1997-98. WHEREAS, the construction of Parr Road and the Downtown Alley projects are Local Improvement Districts (LIDS); and WHEREAS, a loan from the Street/Storm ClF Fund to the Special Assessment Fund was budgeted in each of these funds; and WHEREAS, the City Council previously acted pursuant to Resolution No. 1488 to authorize interfund borrowing; and WHEREAS, Resolution No. 1488 needs to be clarified to more specifically describe the involved interfund loan; and WHEREAS, interfund loans are authorized by Oregon Revised Statutes 294.460; NOW, THEREFORE, THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. That $335,000 from the Street/Storm ClF Fund shall be loaned to the Special Assessment fund during the fiscal year 1997-1998. Section 2. The loans will bear interest at a rate Y-i% more than the rate the City can earn on monies deposited in the Local Government Investment Pool, as of the date of the previous resolution. Section 3. The loan interest will be repaid by June 30 of each fiscal year on the remaining balance of the principal and the entire principal of the loan shall be returned within a period often years. Section 4. That the funds returned shall be obtained from assessments against the property benefiting from the ~~ 17 /""-... ApproVedastofonn~.~~ c- /, - 93 City Attorney Date Page 1 - COUNCIL BILL NO. 1904 RESOLUTION NO. 1495 r- .. .^..,.~,_~_.......".",... t " _..""_ 'J 11 Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder r ATTEST: fY)~ ----r-~ Mary Te t, City Recorder City ofW oodburn, Oregon APPROVED: 0z fl #'~~ Nan~rksey, Mayor J June 22, 1998 ' June 23, 1998 June 23, 1998 June 23, 1998 Page 2 - COUNCIL BILL NO. 1904 RESOLUTION NO. 1495 r- .'._H.......,,~..~_, , A~"""'''''''''- EA Number: OR180015C56002 5311 Vehicle Purchase II. ODOT OBLIGATIONS A. ODOT shall reimburse eligible costs incurred in carrying out the project subject to the amounts shown in Exhibit A. Such reimbursement shall not exceed the Agreement Amount. 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 ODOT's current appropriation or limitation of current biennial budget. C. ODOT reserves the right to withhold payment of funds if there are unresolved audit findings, or inadequate information concerning recipient activities. ODOT reserves the rights to reallocate any portion of the Agreement Amount which, based on its estimate, will not be used by Recipient. 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. ODOT 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 ODOT, 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 ODOT fails to correct such failures within 10 days or such longer period as ODOT may authorize, or 3. If ODOT fails to receive funding, or appropriations, limitations or other expenditure authority at levels sufficient to pay for the work provided in the agreement, or ~,........'__.n.._~_______~' ... 'T -- EA Number: OR180015C56002 5311 Vehicle Purchase 4. The requisite local funding to continue this project becomes unavailable to Recipient; or, 5. 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; or 6. Both parties agree that continuation of the Project would not produce results commensurate with the further expenditure of funds, or 7. Recipient takes any action pertaining to this Agreement without the approval of ODOT and which under the provisions of this Agreement would have required the approval of OOOT, or 8. The commencement, prosecution, or timely completion of the project by Recipient is, for any reason, rendered improbable, impossible, or illegal, or 9. Recipient is in default under any provision of this Agreement. C. 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. D. This Agreement may be revised or amended by a supplemental written Agreement between the parties and executed with the same formalities as this Agreement. E. 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 approvals 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 OOOT of that or any other provision. I'___C~"""'_C"''''_''''_ I' '1 <- EA Number: OR180015C56002 5311 Vehicle Purchase Exhibit A Part I Project Description and Budget Project Description Agreement Local Total Amou nt Share 1 Modified Van / City of $40,000 $10,000 $50,000 Woodburn TOTAL $40,000.00 $10,000.00 $50,000.00 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. '...'''._..~-_..._'' . -, EA Number: OR180015C56002 5311 Vehicle Purchase EXHIBIT A Part II Vehicle Purchase A. Recipient shall bear the cost of insuring vehicles purchased under this agreement. Recipient shall maintain, in amounts and form satisfactory to ODOT, 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, $25,000 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. This project is subject to an 80/20 grant/match ratio meaning that ODOT contributes up to 80% 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 80% of the actual cost. 2. Actual cost is more than estimated cost: The State's contribution is limited to 80% of the actual cost or the Agreement Amount, which ever is less. C. Recipient shall submit quarterly performance reports as specified by OOOT for the duration of the vehicle's useful life. D. Recipient shall use the equipment to meet the transportation needs of the General Public. E. Recipient shall permit ODOT, the US Department of Transportation, or their authorized representatives, to inspect all vehicles, real property, or equipment purchased by the Recipient or any subcontractor acting on its behalf as part of the project. F. Records of maintenance to manufacturer's specifications shall be kept. Recipient will have to either send copies of maintenance records to OOOT, and/or provide records for review at Recipient's site. Equipment shall be maintained to be clean, safe, and mechanically sound. G. 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 ~ ,-'.--~_. .. 'T ...-.", EA Number: OR180015C56002 5311 Vehicle Purchase driver's training course. Drivers of equipment designed to carry 16 or more passengers, including the driver, shall have a valid Commercial Oriverls License (COL). H. Recipient shall be shown as the owner on the equipment title. ODOT shall be shown as the first security interest holder. The Governing Body shall be shown as the second security interest holder. If Recipient fails to show OOOT as the first security interest holder, Recipient shall pay any expenses to re-submit the necessary documents to OMV. I. Recipient shall notify OOOT 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 OOOT's instructions regarding disposition which may include: 1. Transfer of property to OOOT or another entity with compensation for Recipient's interest in the property; or, 2. Transfer to a separate entity with compensation for Recipient's interest; or, 3. Sale to the public with OOOT 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, OOOT shall notify Recipient that agreement is terminated. 2. For non-use of the equipment for more than ninety (90) consecutive calendar days, OOOT 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 OOOT at its offices in Salem, or to another agreed upon location. OOOT 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. L. OOOT may, with parties' mutual consent, purchase equipment on Recipient's behalf. ,'"".----...-.'- I - EA Number: OR180015C56002 5311 Vehicle Purchase EXHIBIT B FY 1998 - 99 FINANCIAL INFORMATION The information below will assist auditors to prepare a report in compliance with the requirements of the Office of Management and Budget (OMB) Circular A-133. This grant is financed by the funding source(s) as indicated below: Federal Program State Program Title Title State funds available through ORS Federal Funds Available through: 323.455 and ORS 391.800 through 390.830. Special Transportation Discretionary Fund Federal Catalogue Number: Federal Grant Number: State Grant Number: OR180015C56002 N/A Total Federal Funding Total State Funding $40,000 N/A Federal Funding Agency State Funding Agency U.S. Department of Transportation Oregon Department of Transportation Federal Transit Administration Transportation Development Branch Region X Public Transit Section Suite 3142 Mill Creek Office Park Federal Building 555 13th Street NE 915 Second Avenue Salem, OR 97310 Seattle, WA 98174 -r-- ,""-"_._--' , 'J Exhibit C Federal Provisions to be Included in Vehicle Purchase 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 sub-agreements at every tier. In accepting this Agreement, Recipient agrees to comply with all Federal provisions applicable to this agreement. Recipient further agrees to include applicable clauses in all third-party, subreipient, and/or subcontractor agreements. ---------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------- CIVIL RIGHTS REQUIREMENTS, Applies to all contracts, Model Clause/Language The following clause was predicated on language contained at 49 CFR Part Appendix A, but FTA has shorten the lengthy text. Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 USC. S 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U,S,C. S 6102, section 202 of the Americans with Disabilities Act of 1990, 42 US,C. S 12132, and Federal transit law at 49 USC. S 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. S 2000e, and Federal transit laws at 49 USC, S 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S, Department of Labor (US. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," C,FR. 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. S 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age, Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of payor other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue, 3, Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U,S.C, S S 623 and Federal transit law at 49 U,S,C, S 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age, In addition, the Contractor agrees to comply with any implementing requirements FTA may issue, 4, Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U,S,C. S 12112, the Contractor agrees that it will comply with the requirements of U,S, Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.FR, Part 1630, pertaining to employment of persons with disabilities, In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. 5, The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FT A, modified only if necessary to identify the affected parties, BUY AMERICA REQUIREMENTS applies to Contracts and the Acquisition of Rolling Stock (valued at more than $100,000). Mandatory Clause/Language The Buy America regulation, at 49 CFR 661.13, requires notification of the Buy America requirements in FTA-funded contracts, but does not specify the language to be used, The following language has been developed by FTA. Buy America - The contractor agrees to comply with 49 USC, 5323U) and 49 CFR Part 661, which provide that Federal funds may not be obligated unless steel, iron, and manufactured products used in FTA-funded projects are produced in the United States, unless a waiver has been granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 CFR 661,7, and include final assembly in the United States for 15 passenger vans and 15 passenger wagons produced by Chrysler Corporation, microcomputer equipment, software, and small purchases (currently less than $100,000) made with capital, operating, or planning funds, Separate requirements for rolling stock are set out at 5323U)(2)(C) and 49 CFR 661.11, Rolling stock not subject to a general waiver must be manufactured in the United States and have a 60 percent domestic content. A bidder or offeror must submit to the FT A recipient the appropriate Buy America certification (below) with all bids on FT A-funded contracts, except those subject to a general waiver, Bids or offers that are not accompanied by a completed Buy America certification must be rejected as nonresponsive. This requirement does not apply to lower tier subcontractors, E-1 I"~~--"'----"-~ t CERIIFICATION REQUIREMENT FOR PROCUREMENT OF STEEL,IRON, OR MANUFACTURED PRODUCTS. The bidder or offeror hereby certifies that it will meet the requirements of 49 U.S.C. 5323U)(1) and the applicable regulations in 49 CFR Part 661. o Certificate of Compliance with 49 U.S.C. 53230)(1) The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C. 5323U)(1), but it may qualify for an exception pursuant to 49 U,S,C, 53230)(2)(8) or U)(2)(0) and the regulations in 49 CFR 661.7, o Certificate of Non-Compliance with 49 U.S.C. 53230)(1) Date Signature Company Name Title The bidder or offeror hereby certifies that it will comply with the requirements of 49 U.S.C. 5323U)(2)(C) and the regulations at 49 CFR Part 661, o Certificate of Compliance with 49 U.S.C. 53230)(2)(C). o Certificate of Non-Compliance with 49 U.S.C. 53230)(2)(C) The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S,C. 5323U)(2)(C), but may qualify for an exception pursuant to 49 U.S.C. 5323U)(2)(8) or U)(2)(D) and the regulations in 49 CFR 661,7. Date Signature Company Name Title E-2 r----- . -, BU~ ,cSTING Model Clause/Language A. Clause and language therein are merely suggested, 49 CFR Part 665 does not contain specific language to be included in third party contracts but does contain requirements applicable to subrecipients and third party contractors. Bus Testing Certification and language therein are merely suggested. 1, Bus Testing - The Contractor [Manufacturer] agrees to comply with 49 U,S,C. A 5323(c) and FT A's implementing regulation at 49 CFR Part 665 and shall perform the following: a) A manufacturer of a new bus model or a bus produced with a major change in components or configuration shall provide a copy of the final test report to the recipient at a point in the procurement process specified by the recipient which will be prior to the recipient's final acceptance of the first vehicle, b) A manufacturer who releases a report under paragraph 1 above shall provide notice to the operator of the testing facility that the report is available to the public, c) If the manufacturer represents that the vehicle was previously tested, the vehicle being sold should have the identical configuration and major components as the vehicle in the test report. which must be provided to the recipient prior to recipient's final acceptance of the first vehicle, If the configuration or components are not identical, the manufacturer shall provide a description of the change and the manufacturer's basis for concluding that it is not a major change requiring additional tethe id d) If the manufacturer represents that the vehicle is "grandfathered" (has been used in mass transit service in the United States before October 1, 1988, and is currently being produced without a major change in configuration or components), the manufacturer shall provide the name and address of the recipient of such a vehicle and the details of that vehicle's configuration and major components, CERTIFICATION OF COMPLIANCE WITH FTA"S BUS TESTING REQUIREMENTS The undersigned {Contractor/Manufacturer] certifies that the vehicle offered in this procurement complies with 49 U.S.C. A 5323(c) and FTA's implementing regulation at 49 CFR Part 665. The undersigned understands that misrepresenting the testing status of a vehicle acquired with Federal financial assistance may subject the undersigned to civil penalties as outlined in the Department of Transportation's regulation on Program Fraud Civil Remedies, 49 CFR Part 31. In addition, the undersigned understands that FTA may suspend or debar a manufacturer under the procedures in 49 CFR Part 29. Date Signature Company Name Title E-3 'I"-~--- I Lobbying Lobbying requirements apply to Construction/Architectural and Engineering/Acquisition of Rolling Stock/Professional Service ContracUOperational Service ContractlTurnkey contracts, Mandatory Clause/Language: A. Clause and specific language therein are mandated by 49 CFR Part 19, Appendix A, B. Modifications have b.een made to the Clause pursuant to Section 10 of the Lobbying Disclosure Act of 1995, P.L 104-65 [to be codified at 2 U,S.C. S 1601, et seq. ] 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 S 20.11 O(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, C. Modifications have been made to the Lobbying Certification pursuant to Section 10 of the Lobbying Disclosure Act of 1995. 1, - Use of "Disclosure of Lobbying Activities," Standard Form-LLL set forth in Appendix B of 49 CFR Part 20, as amended by "Government wide Guidance For New Restrictions on Lobbying," 61 Fed. Reg, 1413 (1/19/96) is mandated by 49 CFR Part 20, Appendix A, 2, Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure Act of 1995, P.L 104-65 [to be codified at 2 U.S,C, S 1601, et seq,] - Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying," Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S,C, 1352, Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-Federal funds with respect to that Federal contract, grant or award covered by 31 U,S,C, 1352, Such disclosures are forwarded from tier to tier up to the recipient. E-4 T""""".,------,.,.- . CFR PART 20--CERTIFICATION REGARDING LOBBYING Certification for Contracts, Grants, Loans, and Cooperative Agreements (To be submitted with each bid or offer exceeding $100,000) The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that: 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 Federal 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 US.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. S 1352 (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure, [Note: Pursuant to 31 U,S.C. S 1352(c)(1 )-(2)(A), any person who makes a prohibited expenditure or fails to file or amend a required certification or disclosure form shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure or failure,] The Contractor, , certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U,S.C, A 3801, et seq., apply to this certification and disclosure, if any. Date Signature of Contractor's Authorized Official Name and Title of Contractor's Authorized Official E-5 ,._-----' t 'T CON I ~ACT WORK HOURS AND SAFETY STANDARDS ACT Applicability to Contracts, 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 (excluding 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 9 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 articles normally available on the open market. Model Clauses/Language A. Pursuant to Section 102 (Overtime): B. (These clauses are specifically mandated under DOL regulation 29 C.F,R. 9 5.5 and when preparing a construction contract in excess of $2,000 these clauses should be used in conjunction with the Davis-Bacon Act clauses as discussed previously, For nonconstruction contracts, this is the only section required along with the payroll section.) 1. Overtime requirements - No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek, 2, Violation; liability for unpaid wages; liquidated damages - In the event of any violation of the clause set forth in paragraph (1) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States for liquidated damages, Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this section, in the sum of $ 10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section, 3. Withholding for unpaid wages and liquidated damages - The (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. 4. Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses set forth in this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts, The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in this section. 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 classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1 (b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the 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 E-6 ~........~-_.."...,-................--._--'-+.. . -, under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1 (b )(2)(8) 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. TERMINA TION Applicability to Contracts, All contracts (with the exception of contracts with nonprofit organizations and institutions of higher education,) in excess of $10,000 shall contain suitable provisions for termination by the grantee including the manner by which it will be effected and the basis for settlement (For contracts with nonprofit organizations and institutions of higher education the threshold is $100,000.) In addition, such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor. Model Clause/Language A. FTA does not prescribe the form or content of such clauses, The following are suggestions of clauses 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 Government's best interest. The Contractor shall be paid its costs, including contract close-out costswhole or in part, at any time by written notice to the Contractor when it is in the Government's best interest The Contractor shall be paid its costs, including contract close-out costs, and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to (Recipient) to be paid the Contracto 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. Termination shall be effected by serving a notice of termination on the contractor setting forth the manner in which the Contractor is in default. The contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract. 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 jts 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 terminate the Contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude (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 of 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 Contractor a Notice of Termination specifying the nature of the default. The Contractor will only be paid the E-7 ~...,--~".-.-~.- ,--, . 'I 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 GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NON PROCUREMENT), Applicability to Contracts, Executive Order 12549, as implemented by 49 CFR Part 29, prohibits FTA recipients and sub-recipients from contracting for goods and services from organizations that have been suspended or debarred from receiving Federally-assisted contracts, As part of their applications each year, recipients are required to submit a certification to the effect that they will not enter into contracts over $100,000 with suspended or debarred contractors and that they will require their contractors (and their subcontractors) to make the same certification to them. Model Clause/Language A. The certification and instruction language is contained at 29 CFR Part 29, Appendix B, and must be included in IFB's and RFP's [for inclusion by contractors in their bids or proposals] for all contracts over $100,000, regardless of the type of contract to be awarded. B, 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 clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, (Recipient) may pursue available remedies, including 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 learns 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 excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549 [49 CFR Part 29]. You may contact (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, declared ineligible, or voluntarily excluded 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 include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transaction", without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 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 excluded from the covered transaction, unless it knows that the certification is erroneous, A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the Nonprocurement List issued by U,S. General Service Administration, 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 clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. E-8 ~. ,.,_..,~--_. ... Except for transactions authorized under Paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to all remedies available to the Federal Government, (Recipient) may pursue available remedies including suspension and/or debarment. D. "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transaction" 1. The prospective lower tier participant certifies, by submission of this bid or proposal, that neither it nor its "principals" [as defined at 49 C,F.R. ~ 29.105(p)] is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation iits "principals" [as defined at 49 C.F.R. ~ 29.1 05(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. BREACHES AND DISPUTE RESOLUTION, Applicability to Contracts, All contracts in excess of $100,000 shall contain provisions or conditions which will allow for administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as may be appropriate. This may include provisions for bonding, penalties for late or inadequate performance, retained earnings, liquidated damages or other appropriate measures, 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 clauses. The following clauses are examples of provisions from various FTA 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 conclusive unless within [ten (10)] days from the date of receipt of its copy. the Contractor mails or otherwise furnishes a written appeal to the [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 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 claims, counterclaims, 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 available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law, No action or failure to act by the (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. State and Local Law disclaimer Applicability to Contracts Model Clause/Language FT A has developed the following language. State and Local Law Disclaimer - The use of many of the suggested clauses are not governed by Federal law, but are significantly affected by State law. The language of the suggested clauses may need to be modified depending on state law, and that before the suggested clauses are used in the grantees' procurement documents, the grantees should consult with their local attorney, Energy Conservation, Applies to all contracts, Model Clause/Language FTA has developed the following language, These requirements have no specified language, so FTA proffers the following language. Energy Conservation - The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. E-9 I'~"--"'-' -, I 'I .... Recycled Products, Applies to all contracts, Model Clause/Language FTA has developed the following language. These requirements have no specified language, so FTA proffers the following language. Recovered Materials - The contractor agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247. Program Fraud or' Fraudulent Statements, Applies to all contracts, Model Clause/Language FTA has developed the following language. These requirements have no specified language, so FTA proffers the following language, The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S,C. S S 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 causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed, In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate, The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U,S,C. 95307, the Government reserves the right to impose the penalties of 18 U.S.C, 9 1001 and 49 U.S.C. 9 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate. The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. Clean Water applies to each contract and subcontract which exceeds $100,000, Model Clause/Language FTA has developed the following language. These requirements have no specified language, so FTA proffers the following language. The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U,S,C. 1251 et seq . The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office, The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FT A Clean Air applies to each contract and subcontract which exceeds $100,000. Model Clause/Language FTA has developed the following language. These requirements have no specified language, so FTA proffers the following language. 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. SS 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. The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS III. Model Clause/Language A FTA has developed the following incorporation of terms language: 1, Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions, All contractual provisions required by DOT, as set forth in FTA Circular 4220.1 D, 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 E-10 "I'--.-~--"'-'. , 'r-'--- 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-11 .. 'J