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Res 1448 - 97/98 Sm Cty Ann Ope COUNCIL BILL NO. l845 RESOLUTION NO. 1448 A RESOLUTION ENTERING INTO THE FISCAL YEAR 1997-98 SMALL CITY ANNUAL OPERATING ASSISTANCE AGREEMENT WITH THE STATE OF OREGON AND AUTHORIZING THE MAYOR AND THE CITY RECORDER 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 operating assistance funds for Fiscal Year 1997-98 under Title 49, United States Code, Section 5311 of the Federal Transit Laws, 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 $16,700, NOW THEREFORE; THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. That the City of Woodburn enter into the Fiscal Year 1997-98 Small City Annual Operating Assistance Agreement, which is affixed as Attachment "A" and by this reference incorporated herein, with the State of Oregon acting by and through its Department of Transportation, Public Transit Section to secure Federal funds through Title 49, United States Code, Section 5311 of the Federal Transit Laws. Section 2. That the Mayor and City Recorder of the City of Woodburn are authorized to sign said agreement on behalf of the City. Page 1- COUNCIL BILL NO. 1845 RESOLUTION NO. 1448 T- --,......." .....^'''~,_~....'.,. _ """",,,,,_,,,_,_ '~'~" _ ....w_,,'. ""..",,,.~~,"''''^_'~ -4 ~ Approved as to form~ ~~ City Attorney APPROVED: Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: /J~ ~ Marly ~ant, Recorder City of Woodburn, Oregon Page 2 - COUNCIL BILL NO. 1845 RESOLUTION NO. 1448 T" ,.,__c __y--._,__,,,.-_c,~...._.__. _.. \2-4-'11- Date December 8, 1997 December 9, 1997 December 9, 1997 December 9. 1997 ~ .........., Misc. Contracts & Agreements # PTS Agreement # OR180014040Q02 FY 1997-98 Small City Annual Operating Assistance Agreement CITY OF WOODBURN THIS AGREEMENT is made and entered into by and between the State of Oregon, acting by and through its Department of Transportation, Public Transit Section, hereinafter referred to as "State" and City of Woodburn hereinafter referred to as "Recipient". Purpose Recipient, having submitted application #FY98-Q-40-002 which describes the activities to be conducted, enters into this Agreement with State to secure financial assistance for eligible operating and administrative expenses as put forth in the Project Description and Budget as shown in Exhibit A as attached, and described in application # FY98-0-40-002, which is hereby incorporated by reference. Effective Date and Duration This contract shall become effective on July 1, 1997 (or on the date at which every party has signed this Agreement) and shall expire, unless otherwise terminated pursuant to this Agreement, on June 30, 1998, whichever comes first. The time period stipulated between the beginning date and the end date shall hereinafter be known as the Term of Agreement. Consideration State agrees to pay Recipient a sum not to exceed $16,700 hereinafter to be known as the Agreement Amount, for accomplishment of work and allowable expenses. Compliance State and Recipient agree to comply with applicable obligations, requirements, and provisions as stipulated in Exhibit A, Exhibit B, Exhibit E, and Exhibit F, As federal funds are involved in the funding of this project, Recipient agrees to comply with the "Federal Transit Administration Master Agreement", the "Federal Transit Administration Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements; Notice", as well as 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 and 279.555, which hereby are incorporated by reference. In addition Recipient agrees to include all federal, state, and local laws, regulations, executive orders and ordinances as applicable under this agreement in all agreements with subrecipients and vendors. Attachments As Marked, Attached Hereto And By This Reference Made A Part Hereof, [8JExhibit A-Project Description and Budget D Special Transportation Grant Program D Section 5310 [8J Section 5311 [8JExhibit B-Recitals and Obligations, ~Exhibit C-Section 5333 Warranty [8JExhibit D-Disadvantaged Business Enterprise Statement [8J Exhibit E- Copy of All Federal Clauses for inclusion in subcontracts & procurements [8J Exhibit F- Auditor's Information PAGE 1 OF 2 ,-----------'-------r-~----.'-''-... ..~"-,-.-,-... Misc. Contracts & Agreements # PTS Agreement # OR180014040002 The terms of this Agreement shall not be waived, altered, modified, supplemented, or amended, in any manner whatsoever, except by written instrument signed by the parties. The Oregon Transportation Commission on March 7, 1996, adopted Delegation Order 2, which grants authority to branch and region managers to approve and execute agreements for work in the current approved workplan budget. City of Woodburn 270 Montgomery Street Woodburn OR 97071 Oregon Department of Transportation Public Transit Section 555 13th St. NE, Salem Oregon 97310 - Na~~ Title~ Date . - 1 L{),fYVJ- ~ Recipient's Legal Counsel Date \ I-i5 -'11 /y!()-{j~-~ Name MafY Tennant Title City Rpr.nrnpr Date /;;;'-7-97 Name Title Date PAGE 2 OF 2 f""'----'"------ T'- - PTS Agreement # OR180014040002 Exhibit A PART I PROJECT DESCRIPTION FY 1997-98 CITY OF WOODBURN SMALL CITY OPERATING ASSISTANCE AGREEMENT I. This a Title 49 CFR Section 5311 Operating Assistance Agreement to sustain the public transportation related activities provided by Recipient. II. Recipient shall submit quarterly reports to State in a format as supplied by State. State 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 of revenues and expenditures for the project, including documentation of local match contributions. III. Costs incurred in carrying out the project. subject to the grant limitations as shown below, are eligible for reimbursement based on reports submitted by Recipient. The State will reimburse up to eighty (80) percent of Recipient's administration expenses, and up to fifty (50) percent of the net operating deficit of Recipient's project. IV. In the event that the actual cost of the approved project differs from the estimated cost of the project, State and Recipient shall abide by the following: A. Actual Project Cost is Less Than Estimated Project Cost 1. The State will reimburse up to eighty (80) percent of Recipient's administration expenses, and up to fifty (50) percent of the net operating deficit of Recipient's project up to the limit of the grant as set out in the Agreement Amount regardless of project's actual cost. B. Actual Project Cost is More Than Estimated Project Cost 1, Recipients may elect to: a) contribute local money and continue the project. State shall contribute no more than the amount specified as the Agreement Amount; or, b) discontinue the project. V. Recipient shall operate equipment under this Agreement to meet the transportation needs of the clientele identified in Recipient's Application for Assistance. However, the equipment may be made available for use by others as space is available, provided this use does not interfere with use by identified clientele. VI. Recipient shall maintain, in amounts and form satisfactory to State, such insurance or self insurance as will be adequate to protect Recipient, vehicle drivers and assistants, vehicle occupants, and project equipment throughout the period of use. Recipient shall bear the cost of said insurance. At a minimum, this shall include comprehensive and collision insurance adequate to repair or replace project property and equipment in the event it is 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 insurance as required by ORS Chapter 806. Recipient shall be responsible for all deductibles or self-insured retentions. Recipient shall PAGE A-1 r-< m"'_' ,---".- . PTS Agreement # OR180014040002 include the Oregon Department of Transportation, Public Transit Section, as Additional Insured on the above insurance policies. VII. Recipient shall operate project facilities and/or equipment in a high level of cleanliness, safety, and mechanical soundness. VIII. All drivers of equipment shall 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 sixteen (16) or more passengers, including the driver, shall have a valid Commercial Driver's License (CDL). IX. When applicable, State shall provide Recipient with guidelines to assist with the project, as requested by Recipient, including the applicable state and federal rules, regulations, and laws. X. Recipient, in accepting this Agreement, 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 or department. XI. Recipient receiving $100,000 or more in Federal funds shall comply with Title 31 U.S.C. Section 1352, which prohibits the use of Federal funds for lobbying any official or employee of any Federal agency, or member or employee of Congress. In addition, even though Recipient uses no Federal funds for lobbying, Recipient shall disclose any lobbying of any official or employee of any Federal agency, or member or employee of Congress in connection with Federal assistance, and to comply with USDOT regulations, "New Restrictions on Lobbying," Title 49 C.F.R. Part 20. PAGE A-2 ~ .'...M____..._.. . - PTS Agreement # OR180014040002 Exhibit A PART II FY 1997-98 NAME SMALL CITY OPERATING ASSISTANCE AGREEMENT OPERATING BUDGET AND GOALS I. The performance objectives listed below are repeated from the Recipient's application. These objectives are advisory and will not be used as a basis for payment for this Agreement. Operating Goals Service Hours: 5,936 Service Mileage: 83,203 Rides: 46,987 II. The operating budget is allocated as follows: Operating Budget Administrative Allocation $8,200 Operation Allocation 8,500 Total Allocation $16,700 PAGE A-3 ,---'-"--"'--' .. - I. II. III. IV. V, VI. ~., STATE EXHIBIT B PART I RECITALS 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, The Governor of the State of Oregon designated State to evaluate and select projects and to coordinate the grant application, '..=" State certifies that sufficient funds are available in the State's current budget to finance costs of this agreement as described in the agreement application and in Exhibit A, not to exceed the stipulated Agreement Amount. Special Transportation Grant Program provides assistance funding to govefTling bodies that meet the transportation needs of individuals who are elderly and persons with disabilities pursuant to ORS 323.455 and ORS 391.800 through 391,830, This Agreement is based upon and is subject to Oregon Revised Statutes, Oregon Administrative Rules. These laws and regulations are contained in ORS 323.455, ORS 391.800 through 391.830. From time to time, these laws, rules and regulations may be amended. State reserves the right to amend this Agreement if it is affected. State 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, Information concerning the financial assistance used to finance this grant is shown in Exhibit F. B-1 Y' .... ':II Exhibit B PART II RECIPIENT OBLIGATIONS I. Recipient shall conduct activities which substantially conform to the description contained in Exhibit A and in the Recipient's application to Public Transit Section for public funding which is the foundation for this agreement. Recipient shall notify State 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 State, State shall concur, or otherwise respond to Recipient, in writing within thirty (30) working days. ',,'" II. Recipient shall request, receive, and disburse funds authorized under this Agreement to conduct and/or complete the project activities approved by the State and the Oregon Transportation Commission as described in Exhibit A, Project Description and Budget. III, Recipient shall permit State, the Secretary of State of Oregon, or their authorized representatives, upon reasonable notice, to inspect all vehicles, real property, facilities, equipment purchased by Recipient as part of the project, and/or the transportation services rendered by Recipient, and/or any subcontractor acting on Recipient's behalf as applicable, Recipient shall permit the above named persons to audit the books, records, and accounts of Recipient relating to the project, IV, Recipient shall maintain all required records for at leastthree (3) years after State's final payment, final disposition of grant-financed property or equipment, and all other pending matters have been resolved, whichever comes later. V. Recipient shall submit proposed third party agreements relating to proVISion or operation of transit service to State for review, State shall concur, or otherwise respond to Recipient, in writing within thirty (30) working days, A copy of all executed third-party agreements and any amendments to the third- party agreements that may occur dunng the performance of this agreement shall be submitted to State, VI, Recipient's purchasing documents and contracts financed by this Agreement must contain State required clauses or conditions relating to the material below A. Contracts for more than $25,000 should contain provision for administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms. These provisions should provide for such sanctions and penalties as may be appropriate, B. Contracts for more than $10,000, should contain provision for termination for cause and for convenience by the Recipient including the manner by which it will be effected and the basis for settlement. C. Every third party and/or public contract (purchases of supplies and equipment, public works contracts, and contracts for personal services) must contain a clause or condition that relates to the material below. 1, All employers working under the contract are subject employers that will comply with ORS 656,017 this prescribes the means by which employers must "maintain assurance" that their subject workers will receive compensation for compensable injuries under the Workers' Compensation Law. B-2 T'. ...........'. .... ... l 2, Notice of requirements and regulations pertaining to reporting, or all State of Oregon rules and regulations as applicable, 3, Access by the State, Recipient, or any of their duly authorized representatives to any books, documents, papers, and records of the contractor which are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions. 4, Retention of all required records for three (3) years after Recipient makes the final payment and all other pending matters are closed. '..~ VII. 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, or 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 the 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, VIII. Recipient shall make purchases of any equipment, materials, or services pursuant to this Agreement under procedures consistent with Administrative Rules (OAR Chapter 125) for the Oregon Department of Administrative Services and Oregon State Law; and shall complete all purchases of project property or equipment prior to the date specified on page 1 of this Agreement. IX. Recipient shall provide transportation services to persons who are elderly and/or disabled 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. X, Recipient, all subcontractors if any, and all employees working under this Agreement are subject employers under the Oregon Worker's Compensation Law and shall comply with ORS 656,017, which requires employers to provide worker's compensation coverage for all subject workers. XI. 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 Governments", and 49 CFR Part 18. XII. 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 or State of Oregon employee shall be admitted to any share or part of this Agreement or any benefit arising therefrom, XIII. Recipient will correct any condition which State believes "creates a serious hazard of dl:!ath or injury" in accordance with Section 22 of the Federal Transit Act of 1964, as amended. XIV, This Agreement shall be executed by those officials authorized to execute this agreement on the recipient's behalf. In the event Recipient's governing body delegates signature of the agreement, B-3 .' .,,_.~. II" ..... Recipient shall attach to this Agreement a copy of the motion or resolution which authorizes said officials to execute this Agreement, and shall also certify its authenticity. XV. Audit Requirements. A Recipient shall, at Recipient's own expense, submit to Oregon Department of Transportation, Public Transit Section, 555 13th St. NE, Salem, Oregon, 97310, an annual audit covering the monies 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 audit set out in OMS Circular A-128, Audits of State and Local Governments or OMS CirClltar A-133, Audits of Institutions of Higher Education and Nonprofit Organizations. 8, Recipient shall also, at Recipient's own expense, submit to Oregon Department of Transportation, Public Transit Section, 555 13th S1. NE, Salem, Oregon, 97310, 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 monies 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 the annual audit of any subcontractor of Recipient responsible for the financial management of funds received under this Agreement. C. Recipient's auditor shall complete the form supplied by State and return the completed form to Public Transit Section, 555 13th St. NE, Salem, Oregon, 9731, verifying information which may include but is not limited to: 1, Vehicles, Equipment, and/or Facilities a) the condition and/or mileage as appropriate, of grant funded vehicles, equipment, and/or facilities b) The grant funded vehicles, equipment, and/or facilities are being used for the purposes intended c) if applicable a verification of the passenger counts and the process used to collect this information for grant funded vehicles d) that the grant funded vehicles, equipment, and/or facilities has the appropriate level of insurance e) that the required maintenance and/or upkeep is being completed and recorded appropriately, 2, Driver training and Certifications a) all drivers of vehicles carrying 16 or more passengers (including the driver) have a Commercial Drivers License b) drivers will be trained in the areas of passenger assistance and passenger safety, with attention during training given to various disabling conditions, D, Pre-Grant-Award, Recipient shall permit State, when state judges appropriate, to conduct at State's own expense a pre-grant-award audit of Recipient's financial and management systems. Such pre-grant-award audit will ensure that Recipient's financial management procedures comply with the state and federal requirements applicable to this Agreement. If a pre-grant- award is deemed necessary, funds available under this Agreement cannot be requested by Recipient until such time as the pre-grant-award audit has been completed. State shall notify 8-4 T' .... _...... ..., t ,.,......__"'_,._~.....,~~"_,"'._,,___'""', ... Recipient in writing of the decision to conduct a pre-grant-award audit at the time of agreement execution. E. Pre-Award and Post-Delivery Review. Every Recipient who purchases rolling stock must certify to the State that a pre-award and post-delivery review has been conducted to assure compliance with its bid specifications, Buy America requirements, and Federal Motor Vehicle Safety requirements as specified in the .Conducting Pre-Award and Post-Delivery 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. Recipient shall submit a copy of all inspection documentation andlor certifica!~s to Public Transit Section, 555 13th Street North East, Salem, Oregon, 97301. 8-5 "." .. y+- - Exhibit B PART III STATE'S OBLIGATIONS I. 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 quarter1y report which shall be compiled and submitted to State in the format supplied by State. Said reimbursement may be subject to the satisfactory completion of an audit of this grant. 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, '.,=" II. State reserves the right to withhold payment offunds if all required reporting has not been submitted, or if there are any unresolved audit findings. III. State reserves the right to reallocate any portion of the Agreement Amount which, based upon State's estimates, will not be used during the Term Of Agreement. 8-6 -..., ._..~' .....' -- Exhibit B Part IV GENERAL OBLIGATIONS I. State and Recipient agree to comply with any additional provisions, clauses or conditions as shown in Exhibit A, II. This Agreement may be revised or amended by a supplemental written agreement between the parties and executed with the same formalities as this Agreement. III. Termination. A. The State may terminate the project and cancel the agreement in whole or in part whenever: 1, The requisite state and/or federal funding becomes unavailable through failure of appropriation Of otherwise; Of, 2. The requisite local funding to continue this project becomes unavailable to Recipient; or, 3. Federal or State Laws, rules, regulations 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, 4, Both parties agree that continuation of the Project would not produce results commensurate with the further expenditure of funds, B. The State may, by written notice to Recipient, terminate the Project and cancel the agreement for any of the following reasons: 1, Recipient takes any action pertaining to this Agreement without the approval of State and which under the provisions of this Agreement would have required the approval of State; or, 2. The commencement, prosecution, or timely completion of the Project by Recipient is, for any reason, rendered improbable, impossible, or illegal; or, 3, Federal or State laws, rules, regulations or guidelines are modified, changed, or interpreted in such a way that the financial assistance provided for in this Agreement is no longer allowable or is no longer eligible for funding proposed by this Agreement; or, 4. Recipient is in default under any provision of this Agreement. B-7 '""_.,.._~".~-_.--'., . Exhibit C SPECIAL SECTION 5333 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., Section 5311: 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 warranty, as set forth below, shall apply for the protection of the transport~tipn 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 tenns and conditions of the warranty arrangement will be sufficient to pennit the flow of Section 5311 funding in the absence of a finding of non-compliance by the Department of Labor. B. 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 lias 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 effici~ncies or economies related thereto; provided, however, that C-1 ... ......~ ~ ~ ... .'-.--1 (2) (a) (2) (b) (2) (c) ..'.... ."-'-"" >'~.-'_. 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 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) o~ 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 and classifications of any jobs in the Recipient's 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 resp~ct 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 accordance with paragraph (4) of this warranty. The foregoing procedures shall be complied with and carried out prior to the institution of the intended action. C-2 ,J For the purpose of providing the statutorily required protections including those specifically mandated by 49 U.S.C. Section 53111, the State will assure, as a condition of the release of funds, that the Recipient agrees to be bound by the terms and conditions of the National (Model) Section 5333 Agreement executed July 23, 1975, identified below2, 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 agr~e~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 all other expenses shall be paid by the party incurring them. 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. 0 (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 have occurred over an extended period, the 18-month limitation shall be measured 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, 2 For purposes ofthis warranty arrangement, paragraphs (1); (2); (5); (15); (22); (23); (24); (26); (27); (28); and (29) of the Model Section 5333 Agreement. executed July 23, 1975 are to be omitted. C-3 ~ 'O-T '-, 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 ~cipient for which he is, or by training or retraining within a reasonable period, can become qualified. In the event training or retraining is required by such employment or reemployment, the Recipient or other 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. Section 5311. 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. (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 C-4 .,..,. .._. - ...~..,...... .,., -. . ......". .." "''IJ --- .1 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. C-5 ..~ .. Exhibit 0 DISADVANTAGED BUSINESS ENTERPRISES (DSE) POLICY STATEMENT It is ODOTs intent to establish and implement a program to encourage the utilization of disadvantaged businesses enterprises (DBE's) by the Public Transit Section by creating for such businesses the maximum possible opportunity to compete for and participate in federally-funded public transit-related contracting activities, Through the DBE Program, the Public Transit Section: 1. Expresses its strong commitment to provide maximum opportunity to disadvantaged businesses in contracting; 2. Informs all employees, government agencies and the general public of its intent to implement this policy statement; and '-=" 3, Assures conformity with applicable federal regulations as they exist or may be amended. It is the policy of the Public Transit Section to provide equal opportunity to all persons to access and participate in the projects, programs and services of the Public Transit Section, The Public Transit Section, its contractors, and subcontractors will not discriminate against any person or firm on the basis of race, color, national origin, sex, sexual orientation, age, religion, physical handicap, political affiliation or marital status, The policies, practices and procedures established by the DBE Program shall apply to all parts of the Public Transit Section and project areas except as expressly provided in the DBE Program, The objectives of the DBE Program shall be: 1, To assure that provisions of the DBE Program are adhered to by all Public Transit Section employees, contractors, and USDOT subrecipients and contractors; and 2, To initiate and maintain efforts to increase DBE Program participation by disadvantaged businesses, E. The Public Transit Section accepts and agrees to the statements of 49 CFR 23.43(a)(1) and (2) These statements will be included in all USDOT agreements with USDOT subrecipients and in all USDOT- assisted contracts between the Public Transit Section or USDOT subrecipients and any contractor. Contractors, subcontractors and subrecipients of the Public Transit Section accepting contracts or grants under the DBE Program which are USDOT-assisted shall be advised that failure to carry out the requirements set forth in 49 CFR 23.42(a) shall constitute a breach of contract and, after notification by the Public Transit Section, may result in termination of the agreement or contract by the Public Transit Section or such remedy as the Public Transit Section deems appropriate, A Disadvantaged Business Liaison Officer, appointed by the Manager of the Public Transit Section, administers the DBE program. In addition to the responsibilities of the Liaison Officer, all program managers shall have the responsibility to assure implementation of the DBE Program, VI. Directory A. A directory of DBEs as certified by ODOT shall be maintained by the Liaison Officer to facilitate identifying such businesses with capabilities relevant to general contracting requirements and particular solicitations. B. The directory shall be available to contract bidders and proposes in their efforts to meet DBE Program requirements, VII. DBE-Owned Banks 0-1 .,.. "--r--'.--'-"- ...... .~ , , The Public Transit Section will seek to identify DBE~ banks and make the greatest feasible use of their services, B. In addition, the Public Transit Section will encourage prime contractors, subcontractors and consultants to utilize such services by sending them brochures and service information on certified DBE Banks. VIII. Affirmative Action and Equal Opportunity Procedures The Public Transit Section shall use affirmative actio(l techniques to facilitate DBE and participation in contracting activities. These techniques include: A. Arranging solicitations, time for presentation of bids, quantities specifications and delivery schedules so as to facilitate the participation of DBEs. B. Referring DBEs in need of management assistance to established agencies 'tt1'at provide direct management assistance to such businesses, C, Carrying out information and communications programs on contracting procedures and specific contracting opportunities in a timely manner, with such programs being bilingual where appropriate. D, Distribution of copies of the DBE Program to organizations and individuals concerned with DBE Programs. E. Periodic reviews with program managers to insure that they are aware of the DBE Program goals and desired activities on their parts to facilitate reaching the goals. F, Public Transit Sections efforts toward and success in meeting DBE goals for section contracts shall be factors considered during annual performance evaluations of the program managers, G. Monitor and insure that Disadvantaged planning centers and likely DBE contractors are receiving requests for bids, proposals and quotes. H. Study the feasibility of certain US DOT-assisted contracts and procurements being set aside for DBE participation. I. Distribution of lists to potential DBE contractors of the types of goods and services which the Public Transit Section regularly purchases, J. Specifying purchases by generic title rather than specific brand name whenever feasible, K. Establish an interdepartmental; contract management committee: 1, Which will meet regularly to monitor and discuss, among other Issues, potential DBE participation in contracts, 2. In an effort to become more knowledgeable regarding DBE resources, the committee shall also invite potential DBE contractors to attend selected meetings, L Requiring that at least one DBE vendor or contractor be contacted for all contract awards which are not exempt form the Public Transit Sections contract selection procedures and which are: 1, for more than $500 but not more than $15,001 for personal services contracts, and 2. for more than $2,500 but not more than $10,001 for personal services contracts. 3. The Liaison officer may waive this requirement if he/she determines that there are no DBEs on the certification list capable of providing the service or item, . 0-2 ~' .......-...-.--' 4, For contracts over the dollar amounts indicated in this section, aU known DBEs in the business of providing the service{s) or item(s) required shall be maited bid or proposal information. M. The Public Transit Section Manager, or hislher designee, may establish and implement additional affirmative action techniques which are designed to facilitate participation of DBEs in the Public Transit Section's contracting activities. IX. Certification of Disadvantaged Business Eligibility A. To participate in the DBE Program as a DBE, contractors, subcontractors and joint ventures must have been certified by an authorized certifying agency as described in subsection B. of this section. B. The Public Transit Section will not perform certification or recertification of businesses or consider challenges to socially and economically disadvantaged status. '..l" 1, The Public Transit Section will rely upon the certification and recertification processes established by the Office of Minority, Women, and Emerging Small Business (OMWESB) and will utilize OMWESB's list in determining whether a prospective contractor or subcontractor is certified as a DBE. 2 A prospective contractor or subcontractor must be certified as a DBE by OMWESB and appear on OMWESB's certification list, prior to the pertinent bid opening or proposal submission date to be considered by the Public Transit Section to be an eligible DBE and be counted toward meeting goals, C. Prospective contractors or subcontractors which have been denied certification may appeal such denial to OMWESB pursuant to applicable law, Such appeal shall not cause a delay in any contract award by the Public Transit Section, 2, Decertification procedures for US DOT-assisted contractor or potential contractors will comply with the requirements of Appendix A, .Section by Section Analysis. of the July 21, 1983, Federal Register, Vol. 45, No, 130, p. 45287, and will be administered by the agency which granted certification, 0, Challenges to certification or to any presumption of social or economic disadvantage with regard to the USDOT-assisted portion of the DBE Program, as provided for in 49 CFR 23.69, shall conform to and be processed under the procedures prescribed by OMWESB, That challenge procedure provides that: 1. Any third party may challenge the socially and economically disadvantaged status of any individual (except an individual who has a current 8(a) certification from the Small Business Administration) presumed to be socially and economically disadvantaged if that individual is an owner of a firm certified by or seeking certification from the certifying agency as a disadvantaged business, The challenge shall be made in writing to the recipient. 2. With its letter, the challenging party shall include all information available to it relevant to a determination of whether the challenged party is in fact socially and economically disadvantaged, 3, The recipient shall determine, on the basis of the information provided by the challenging party, whether there is reason to believe that the challenged party, whether there is reason to believe that the challenged party is in fact not socially and economically disadvantaged, a, If the recipient determines that there is not reason to believe that the challenged party is not socially and economically disadvantaged, the recipient shall so inform the challenging party in writing. This terminates the proceeding, 0-3 -.' '''.....- ...... .. ',," If the recipient determines that there is reason to believe that the challenged party is not .' socially and economically disadvantaged, the recipient shall begin a proceeding as provided in paragraphs B, 4, 5, and 6 of this section. 4. The recipient shall notify the challenged party in writing that his or her status as a socially and economically disadvantaged individual has been challenged. The notice shall identify the challenging party and summarize the grounds for the challenge, The notice shall also require the challenged party to provide to the recipient, within a reasonable time, information sufficient to permit the recipient to evaluate his or her status as a socially and economically disadvantaged individual. 5, The recipient shall evaluate the information available to it and make a proposed determination of the social and economic disadvantage of the challenged party. The recipient shall notify both parties of this proposed determination in writing, setting forth the reasons for its proposal. The recipient shall provide an opportunity to the parties for an informal hearing, at which they can respond to this proposed determination in writing and in person, ".~ 6. Following the informal hearing, the recipient shall make a final determination, The recipient shall inform the parties in writing of the final determination, setting forth the reasons for its decision, 7, During the pendency of a challenge under this section, the presumption that the challenged party is a socially and economically disadvantaged individual shall remain in effect. x. Annual Disadvantaged Business Goals: A. The Public Transit Section shall, each June, establish annual DBE goals for the ensuing fiscal year. Such annual goals shall be established separately for construction contracts, labor and materials contracts, personal services contracts, procurement contracts and US DOT-assisted contracts regardless of type. B, Annual goals will be established taking into consideration the following factors: 1. Projection of the number and types of contracts to be awarded by the Public Transit Section; 2, Projection of the number, expertise and types of DBEs likely to be available to compete for the contracts; 3. Past results of the Public Transit Section's efforts under the DBE Program; and 4, Existing goals of other local USDOT recipients and their experience in meeting these goals, c. Annual goals for US DOT-assisted contracts must be approved by the United States Department of Transportation, D. The Public Transit Section will publish notice that the USDOT -assisted contract goals are available for inspection when they are submitted to USDOT or other federal agencies, They will be available for 30 days following publication of notice~ Public comment will be accepted for 45 days following publication of the notice. XI. Contract Goals A. The annual goals established for construction contracts shall apply as individual goals for construction contracts over $50,000, B. The'Liaison Officer may set a contract goal for any contract other than construction contracts over $25,000, 1. The setting of such contract goal shall be made in writing prior to the solicitation of bids for such contract. 0-4 '-....,...... .-." 2, Contract goals for contracts other than construction contracts over $50,000 shall be at thl discretion of the Liaison Officer and shall not be tied, necessarily, .to the annual goal for such contract type. C. Even though no DBE goals are established at the time that bicllproposal documents are drafted, the Liaison Officer may direct the inclusion of a clause in any RFP or bid documents for any contract described in this section which requires that the prime contractor, prior to entering into any subcontracts, make good faith efforts, as defined in Section XIII, to achieve DBE participation in the same goal amount as the current annual goal for that contract type. D, Contract goals may be complied with pursuant to Section XIII or XVI. The extent to which DBE participation will be counted toward contract goals is governed by the latter section. XII. Contract Award Criteria , ~l" A. To be eligible for award of contracts containing a DBE goal, prime contractors must either meet or exceed the specific goal for DBE participation, or prove that they have made good faith efforts to meet the goal prior to the time bids are opened or proposals are due. Bidders/Proposers are required to utilize the most current list of DBEs certified by Office of minority. Women and Emerging Small Business (OMWESB) in all of the bidders'/proposers' good faith efforts solicitations. The address where certified lists may be obtained shall be inCluded in all applicable bid/proposal documents. B. All invitations to bid or request for proposals on contracts for which goals have been established shall require all bidders/proposers to submit with their bids and proposals a statement indicating that they will comply with the contract goal or that they have made good faith efforts as defined in Section XUl to do so. To document the intent to met the goals, all bidders and proposers shall complete and endorse a disadvantaged Business Program Compliance form and include said form with bid or proposal documents, The form shall be provided by the Public Transit Section with bid/proposal; solicitations. C, Agreements between a bidder/proposer and a DBE in the DBE promises not to provide subcontracting quotations to other bidders/proposers are prohibited. D, Apparent low bidders/proposers shall, by the close of the next working day following bid opening (or proposal submission date when no public opening is had)., submit to the Public Transit Section detailed DBE Utilization forms listing names of DBEs who will be utilized and the nature and dollar amount of their participation, This form will be binding upon the bidder/proposer. Within five working days of bid opening or proposal submission date, such bidders/proposers shall submit to the Public Transit Section signed Letters of Agreement between the bidder/proposer and OBE subCOntractors and suppliers to be utilized, A sample Letter of Agreement will be provided by the Public Transit Section, The DBE Utilization forms shall be provided by the Public Transit Section with bid/proposal documents, E. An apparent low bidder/proposer who states in its bid/proposal that the DBE goals were not met but that good faith efforts were performed shall submit written evidence of such good efforts within two working days of bid opening or proposal submission, The Public Transit System reserves the right to determine the sufficiency of such efforts, F, Except as provided in paragraph G of this section, apparent low bidders or apparent successful proposers who state in their bids/proposals that they will meet the goals or will show good faith efforts to meet the-goals, but who fail to comply with paragraph D or E of this section, shall have their bids or proposals rejected and shall forfeit any required bid security or bid bond. 0-5 -.'" ~...,... ^_ ',. ..........." ..,_ ~""<' .., " u,_._ " ~ '" "", In that event the next lowest bidder or, for personal services contracts, the firm which scores the second " 'highest shall, within two days of notice of such ineligibility of the low bidder, submit evidence of goal compliance or good faith effort as provided above. This process shall be repeated until a bidder or proposer is determined to meet the provisions of this section or until the Public Transit Section determines that the remaining bids are not acceptable because of amount of bid or otherwise. G. The Liaison officer, at hislher discretion, may waive minor irregularities in a bidder's or proposer's compliance with the requirements of this s~on provided, however, that the bid or proposal substantially complies with public bidding requirements as required by applicable law. XIII. Determination of Good Faith Efforts A. Bidders or Proposers on USDOT-assisted contracts to which DBE goals apply must, to be eligible for contract award, comply with the applicable contract goal or show that good faith effotU have been made to comply with the goal. Good faith efforts should include at least the following standards established In the amendment to 49 CFR 23.45(h), Appendix A, dated Monday, April 27, 1981, A showing of good faith efforts must include written evidence of at least the following: 1. Attendance at any pre-solicitation or pre-bid meetings that were scheduled to the Public Transit Section to inform disadvantaged business enterprises of contracting. and subcontracting or material supply opportunities available on the project 2. Advertisement in trade association, general circulation, disadvantaged and trade-oriented, if any and through a disadvantaged-owned newspaper or disadvantaged owned trade publication concerning the subcontracting or material supply opportunities at least 10 days before bids or proposals are due, 3. Written notification to a reasonable number but no less than five DBE firms that their interest in the contract is solicited, Such efforts should include the segmenting of work to be subcontracted to the extent consistent with the size and capability of DBE firms in order to provide reasonable subcontracting opportunities. Each bidder should send solicitation letters inviting quotes or proposals from DBE firms, segmenting portions of the work and specifically describing, as accurately as possible, the portions of the work for which the quotes or proposals are solicited from DBE firms and encouraging inquiries for further details, Letters that are general and do not describe specifically the portions of the work for which quotes or proposals are desired are discouraged, as such letters generally do not bring responses, it is expected that such letters will be sent in a timely manner so as to allow DBE sufficient opportunity to develop quotes or proposals for the work described. 4, Evidence of follow-up to initial solicitations of interest, including the following: a, The names, addresses, telephone numbers of all DBE contacted; b, A description of the information provided to DBE firms regarding the plans and specifications for portions of the work to be performed; and c, A statement of the reasons for non-utilization of DBE firms, if needed to meet the goaL 5, Negotiation in good faith with DBE firms, The bidder shall not, without justifiable reason, reject as unsatisfactory bids prepared by any DBE firms. 6. Where applicable, the bidder must provide advice and assistance to interested DBE firms in obtaining bonding, lines of credit or insurance required by the Public Transit Section or the bidder. D-6 1" ..., ----, "'" 7~ Overall, the bidder's efforts to obtain DBE participation must be reasonably expected to produc( a level of participation sufficient to meet the Public Transit Section's goals, 8, The bidder must use the services of minority community organizations, minority contractor groups, local, state, and federal minority business assistance offices and other organizations identified by the Executive Departmenfs Advocate for minority and Women and Emerging Small Business that provide assistance in the recruitment and placement of DBEs, XIV. Replacement of DBE Contractors Prime contractors shall not replace a DBE subcontractor with another subcontractor, either before contract award or during contract performance, without the Public Transit Section's approval. Prime contractors who replace a DBE subcontractor shall replace such a DBE subcontractor with another certified DBE subcontractor or make good faith efforts as described in the preceding section to do so. XV. Reports & Records '..:> A. The Public Transit Section shall develop and maintain a record keeping system to identify and assess DBE contract awards, prime contractor's progress in achieving goals and affirmative action efforts. Specifically, the following records will be maintained: 1. Awards to DBEs by number, percentage and dollar amount; 2. A description of the types of contracts awarded; and 3. The extent to which goals were exceeded or not met and reason therefor. B. All DBE records will be separately maintained, Required DBE information will be provided to federal agencies and administrators on request. C, The Liaison Officer shall prepare reports, at least semiannually, on DBE participation to include the following: 1. The number of contracts awarded, 2. Categories of contracts awarded; 3, Dollar value of contracts awarded; 4. Percentage of the dollar value of all contracts awarded to DBE firms in the reporting period; and 5. The extent to which goals have been met or exceeded. XVI. Counting Disadvantaged Business Participation Toward Meeting Goals: A. DBE participation shall be counted toward meeting the goals on each contract as follows: 1, Subject to the limitations indicated in paragraphs 2 through 8, below, the total dollar value of a prime contract or subcontract to be performed by DBEs is counted toward the applicable goal for contract award purposes as well as annual goal compliance purposes, 2. The total dollar value of a contract to a disadvantaged business owned and controlled by both disadvantaged males and non-disadvantaged females is counted toward the goals fo~ disadvantaged businesses and women, respectively, in proportion to the percentage of ownership'and control of each group in the business, The total dollar value of a contract with a disadvantaged business owned and controlled by disadvantaged women is counted is counted toward either the disadvantaged business goal or 0-7 T" ,~ r the goal for women, but not to both. The ~ublic Transit Section shall choose the goal to which " the contract value is applied. 3, The Public Transit Section shall count toward its goals a portion of the total dollar value of a contract with an eligible joint venture equal to the percentage of the ownership and control of the disadvantaged business partner in the joint venture. 4. The Public Transit Section shall count toward its goals only the expenditures to DBEs that perform a commercially useful function in the work of a contract. A DBE is considered to perform a commercially useful function when it is responsible for execution of a distinct element of the work of a contract and canying out its responsibilities by actually performing, managing and supervising the work involved, To determine whether a DBE is performing a commercially useful function, the Public Transit Section shall evaluate the amount of work subcontracted, industry practices and other relevant factors. 5, Consistent with normal industry practices, a DBE may enter into subcdntracts. If a DBE contractor subcontracts a significantly greater portion of the work than would be expected on the basis of normal industry practices, the DBE shall be presumed not to be performing a commercially useful function, The DBE may present evidence to the Public Transit Section to rebut this presumption, The Public Transit Section's decision on the rebuttal of this presumption is subject to review by USDOT for USDOT-assisted contracts, 6, A DBE which provides both labor and materials may count toward its disadvantaged business goals expenditures for materials and supplies obtained from other than DBE suppliers and manufacturers, provided that the DBE contractor assumes the actual and contractual responsibilities for the provision of the materials and supplies, 7, The Public Transit Section shall count its entire expenditure to a DBE manufacturer (i.e" a supplier that produces goods from raw materials or substantially alters them before resale,) 8. The Public Transit Section shall count toward the goals 60 percent of its expenditures to DBE suppliers that are not manufacturers, provided that the DBE supplier performs a commercially useful function in the supply process, 9. When USDOT funds are passed-through by the Public Transit Section to other agencies, any contracts made with those funds and any DBE participation in those contracts shall only be counted toward the Public Transit Section's goals. Likewise, any USDOT funds passed-through to the Public Transit Section from other agencies and then used for contracting shall count only toward that agency's goals, Project managers responsible for administration of pass-through agreements shall include the following language in those agreements: a, Policy, It is the policy of the Department of Transportation that disadvantaged business enterprises as defined in 49 CFR Part 23 shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with federal funds under this agreement. Consequently, the DBE requirements of 49 CFR Part 23 apply to this agreement. b, DBE Obligation, The recipient or its contractor agrees to ensure that disadvantaged business enterprises as defined in 49 CFR Part 23 have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with federal funds provided under this agreement. In this regard, all recipients or contractors shall take all necessary and reasonable steps in accordance with 49 CFR Part 23 to ensure that disadvantaged business enterprises have the maximum opportunity to compete for and perform contracts, 0-8 T '"'TO' - .- . .1 Recipients and their contractors shall not discriminate on the basis of race, color, national origin or sex in the award and performance of USDOT -assisted contracts.' b, DBE participation shall be counted toward meeting annual goals as follows: 1, Except al otherwise provided below, the total dollar value of any contract which is to be performed by a DBE is counted toward meeting annual goals. 2. The provisions of paragraphs Kl. through A8 of this section, pertaining to contract goals. shall apply equally to annual goals. XVII. Compliance and Enforcement A, The Public Transit Section shall reserve the right, at all times during the period of any contract, to monitor compliance with the terms of this program and the contract and with any representation made by a contractor prior to contract award pertaining to DBE participation in the contract. B. The Liaison Officer may require, at any stage of contract completion, documented proof from the contractor of actual DBE participation, 0-9 r- .-.-.-.'---..' . Exhibit E PROVISIONS TO BE INCLUDED IN CONTRACTS One of the principles of contracting with Federal funds r~ directly or indirect1y from FTA 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 include applicable dauses in all third-party. subreipient. and/or subcontractor agrements. The specific requirements for particular grant funds will be found in the Master Agreement Incorporated 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 t5331 CFR Parts 653 and 654 I. Applicability to Contracts A. The Drug and Alcohol testing provisions apply to Operational Service Contracts. II. Flow Down Requirements A. Anyone who performs a safety-sensitive function for the recipient or subrecipient is required to comply with 49 CFR 653 and 654, unless the contract is for maintenance services, Maintenance contractors for non-urbanized area formula program grantees are not subject to the rules. Also, the rules do not apply to maintenance subcontractors, III. Model ClauselLanguage A. Introduction 1. FTA's drug and alcohol rules, 49 CFR 653 and 654, respectively, are unique among the regulations issued by FT A. First, they require recipients to ensure that any entity performing a safety-sensitive function on the recipient's behalf (usually subrecipients and/or contractors) implement a complex drug and alcohol testing program that complies with Parts 653 and 654. Second, the rules condition the receipt of certain kinissued by FTA. .: 2, How a recipient does so depends on several factors, including whether the contractor is covered independently by the drug and alcohol rules of another Department of Transportation operating administration, the nature ofthe relationship that the recipient has with the contractor, and the financial resources available to the recipient to oversee the contractor's drug and alcohol testing program, In short, there are a variety of ways a recipient can ensure that its subrecipients and contractors comply with the rules, 3, Therefore, FTA has developed three model contract provisions for recipients to use "as is" or to modify to fit their particular situations. 8. Explanation of Model Contract Clauses 1. Under Option 1, the recipient ensures the contractor's compliance with the rules by requiring the contractor to participate in a drug and alcohol program administered by the E-1 T '''''''-T'' _ . ._.'"__.."__ ........... _' ,,,.,__. ,.._,..~..._,,_...'~ ..... ......_.... "___'.~.. ," "'''4,~"_.~'_k~_''-",'_'''''''V.,___'''' 1.."".,....",. recipient The advantages of doing this are obvious: the recipient maintains total control over its compliance with 49 CFR 653 and 654. The disadvantage is that the recipient. which may not diredIy employ any safety-sensitive employees, has to Implement a complex testing program. Therefore, this may be a practical option only for those recipients which have a testing program for their employees, and can add the contractor's safety-sensitive employees to that program. 2. Under Option 2, the recipient relies on the contractor to implement a drug and alcohol testing program that compfles with 49 CFR 653 and 654, but retains the ability to monitor the contractor's testing program; thus, the recipient has less control overs its compliance with the drug and alcohol testing rules than it does under option 1. The advantage of this approach is that it places the responsibility for compiying with the rules on the entity that is actually performing the safety-sensitive function. Moreover, it reserves to the recipient the power to ensure that the contractor complies with the program. The disadvantage of Option 2 is that without adequate monitoring of the contractor's program, the recipient may find itself out of compliance with the rules, 3. Under option 3, the recipient specifies some or all of the specific features of a contractor's drug and alcohol compliance program. Thus, it requires the recipient to decide what it wants to do and how it wants to do it. The advantage of this option is that the recipient has more control over the contractor's drug and alcohol testing program, yet it is not actually administering the testing program, The disadvantage is that the recipient has to specify and understand c1earty what it wants to do and why, C, Drug and Alcohol Testing Option 1 1 . The contractor agrees to: a) participate in ( grantee's or recipient's) drug and alcohol program established in compliance with 49 CFR 653 and 654, D. 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 (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. ..:'" > E. 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 6~, produce any documentation necessary to establish its compliance with Parts 653 and 654, and permit any authorized representative ofthe 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 E-2 or'. .,_......- (InSert date before March 15) to (insert title and addreaa of person responsible for receiving information). To certify compr.ance the contractor shall use the "Substance Abuse Ceftifications- In the -Annual Ust of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements,- which Is pubrlShed aMually 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 (b) 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). ===================8=================================================z=========== BUY AMERICA REQUIREMENTS 53230) CFR Part 661 I. Applicability to Contracts A. The Buy America requirements apply to the following types of contracts: Construction Contracts and Acquisition of Goods or Rolling Stock (valued at more than $100,000), II. Flow Down A. The Buy America requirements flow down from FTA recipients and subrecipients to first tier contractors, who are responsible for ensuring that lower tier contractors and subcontractors are in compliance. III. Mandatory ClauselLanguage A, The Buy America regulation, at 49 CFR 661.13, requires notification of the Buy America requirements in FT A-funded contracts, but does not specify the language to be used, The following language has been developed by FT A. B, Buy America - The contractor agrees to comply with 49 U.S.C. 5323(j) and 49 CFR Part 661, which provide that Federal funds may not be obligated unless steel, iron, and manufactured products used in FT A-funded projects are produced in the United States, unless a waiver has been granted by FT A 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, SepalC!.te requirements for rolling stock are set out at 5323(J)(2)(C) and 49 CFR 661.11. Rolling stock'tldt subject to a general waiver must be manufactured in the United States and have a 60 percent domestic content. C. A bidder or offeror must submit to the FTA 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-3 r '...T"...'.. 'If" .' CERTIFICATION REQUIREMENT FOR PROCUREMENT OF STEEL, IRON, OR MANUFACTURED PRODUCTS. Certificate of Compliance with 49 U.S.C. 53230)(1) The bidder or offeror hereby certifies that it will meet the requirements of 49 U.S.C. 53230)(1) and the applicable regulations in 49 CFR Part 661. Date Signature Company Name Title Certificate of Non-Compliance with 49 U.S.C. 5323(j)(1) The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C. 53230)(1), but it may qualify for an exception pursuant to 49 U.S.C. 53230)(2)(8) or 0)(2)(0) and the regulations in 49 CFR 661.7. Date Signature .: '-, Company Name Title E-4 l' T 'If" _.. CERTIFICATION R.EQUIREMENT FOR PROCUREMENT QF BUSES, OTHER ROLLING STOCK AND ASSOCIATED EQUIPMENT. Certificate of Compliance with 49 U.S.C. 5323(j)(2)(C). The bidder or offeror hereby certifies that it will comply with the requirements of 49 U.S.C. 53230)(2)(C) and the regulations at 49 CFR Part 661. Date Signature Company Name Title Certificate of Non-Compliance with 49 U.S.C. 5323(j)(2)(C) The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C. 53230)(2)(C), but may qualify for an exception pursuant to 49 U.S.C. 53230)(2)(8) or 0)(2)(0) and the regulations in 49 CFR 661.7, Date Signature <((", Company Name Title E-5 T' "-'''.r..' t__,^",."".,, ,...,...m"'"_" ....-.,.....,....~.,^;.j.,.."."..,......,-"..,"~~~.,".. .....~..~_.~..~......,-"._.~~~.......~.~"...~......_, CHARTER BUS REQUIREMENTS 5323( d) CFR Part 604 I. Applicability to Contracts A. The Charter Bus requirements apply to the following type of contract: 1. Operational Service Contracts. II. Flow Down Requirements A. The Charter Bus requirements flow down from FTA recipients and subrecipients to first tier service contractors, III. Model ClauselLanguage A, The relevant statutes and regulations do not mandate any specific clause 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 FT A assistance are prohibited from providing charter service using federally funded equipment or facilities if there is at least one private charter operator willing and able to provide the service, except under one of the exceptions at 49 CFR 604,9. Any charter service provided under one of the exceptions must be "incidental," Le" it must not interfere with or detract from the provision of mass transportation, --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- SCHOOL BUS REQUIREMENTS 5323(F) CFR Part 605 I. Applicability to Contracts A. The School Bus requirements apply to the following type of contract: 1 . Operational Service Contracts, II. Flow Down Requirements A. The School Bus requirements flow down from FT A recipients and subrecipients to first tier service contractors, III. Model ClauseL:anguage A. The relevant statutes and regulations do not mandate any specific clause or language, The following clause 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 exclusively for the transportation of students and school personnel in competition with private school bus operators unless qualified under specified exemptions, When operating exclusive school bus service under an allowable exemption, recipients and subrecipients may not use federally funded equipment, vehicles, or facilities. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- E-6 'T' , 'y- CARGO PREFERENCE REQUIREMENTS 1241 CFR Part 381 I. Applicability to Contracts A. The Cargo Preference requirements apply to all contracts involving equipment, materials, or commodities which may be transported by ocean vessels. II. Flow Down A. The Cargo Preference requirements apply to all subcontracts when the subcontract may be involved with the transport of equipment, material, or commodities by ocean vessel. III. Model ClauselLanguage A. The MARAD regulations at 46 CFR 381.7 contain suggested contract clauses. The following language is proffered by FT A, 1, Cargo Preference - a) Use of United States-Flag Vessels - The contractor agrees: (1) to use privately owned United States-Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers. dry cargo liners, and tankers) involved, whenever shipping any equipment. material, or commodities pursuant to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States-Flag commercial vessels; (2) to furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 working days following the date of leading for shipments originatin.g outside the United States, a legible copy of a rated, "on-board" commercial ocean bill-of -lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development. Maritime Administration, Washington, DC 20590 and to the FT A recipient (through the contractor in the case of a subcontractor's bill-of-Iading.) (3) to include these requirements in all subcontracts issued pursuant to this contract when the subcontract may involve the transport of equipment. material, or commodities by ocean vessel. ------------------------------------------------------------------------ ------------------------------------------------------------------------ SEISMIC SAFETY REQUIREMENTS 0;:", 7701 et seq. 49 CFR Part 41 I. Applicability to Contracts A. The Seismic Safety requirements apply only to contracts for the construction of new buildings or additions to existing buildings, II. Flow Down A. The Seismic Safety requirements flow down from FTA recipients and subrecipients to first tier contractors to assure compliance. with the applicable building standards for Seismic Safety, including the work performed by all subcontractors, E-7 r -Y' - III. Model ClauseslLanguage A. The regulations do not provide suggested language for third-party contract dauses. The following language has been developed by FT A. 1. Seismic Safety - The contractor agrees that any new building or addition to an existing building will be designed and constructed in accordance with the standards for Seismic Safety required in Department of Transportation Seismic Safety Regulations 49 CFR Part 41 and will certify to compliance to the extent required by the regulation, The contractor also agrees to ensure that all work performed under this contract induding work perfonned by a subcontractor is in compliance with the standards required by the Seismic Safety Regulations and the certification of compliance issued on the project, ---------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------- ENERGY CONSERVATION REQUIREMENTS 6321 et seq. CFR Part 18 I. Applicability to Contracts A. The Energy Conservation requirements are applicable to all contracts. II. Flow Down A. The Energy Conservation requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subagreements at every tier. III. 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 Act. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- CLEAN WATER REQUIREMENTS 1251 I. Applicability to Contracts A. The..ctean Water requirements apply to each contract and subcontract which exceeds $100,000, II. Flow Down A, The Clean Water requirements flow down to FT A recipients and subrecipients at every tier. III. Model Clause/Language A. While no mandatory clause 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 - E-8 T T' /' a) The Contractor agrees to comply with aU applicable standards, orders or regutatlons 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 FT A and the appropriate EPA Regional Office. b) 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. ======================================================================== BUS TESTING 5323{c) CFR Part 665 I. Applicability to Contracts A. The Bus Testing requirements pertain only to the acquisition of Rolling StockfTurnkey. II. Flow Down A. The Bus Testing requirements should not flow down, except to the turnkey contractor as stated in Master Agreement III. 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 FTA'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, E-9 T yo ~RTIFICATION OF COMPLIANCE WITH FTA'S BUS TESTING REQUIREMENTS The undersigned [ContractorlManufacturerl 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-10 T -"r PRE-AWARD AND POST DEUVERY AUDITS REQUIREMENTS 5323 CFR Part 663 L Applicability to Contracts A. These requirements apply only to the acquisition of Rolling StocklTumkey. II, Flow Down A, These requirements should not flow down, except to the tumkey contractor as stated in Master Agreement. III. Model ClauselLanguage A. Clause and language therein are merely suggested. 49 C.F.R. Part 663 does not contain specific language to be included in third party contracts but does contain requirements applicable to subrecipients and third party contractors. 1. Buy America certification is mandated under FTA regulation, "Pre-Award and Post- Delivery Audits of Rolling Stock Purchases," 49 C,F,R. 663.13. 2. Specific language for the Buy America certification is mandated by FTA regulation, 3, "Buy America Requirements--Surface Transportation Assistance Act of 1982, as amended," 4, C.F,R. 661,12, but has been modified to include FTA's Buy America requirements codified at 49 U.S.C, A 53230), 5. Pre-Award and Post-Delivery Audit Requirements - The Contractor agrees to comply with 49 U.S,C. ~ 5323(1) and FTA's implementing regulation at 49 C,F.R. Part 663 and to submit the following certifications: a) Buy America Requirements: The Contractor shall complete and submit a declaration certifying either compliance or noncompliance with Buy America. If the Bidder/Offeror certifies compliance with Buy America, it shall submit documentation which lists 1) component and subcomponent parts of the rolling stock to be purchased identified by manufacturer of the parts, their country of origin and costs; and 2) the location of the final assembly point for the rolling stock, including a description of the activities that will take place at the final assembly point and the cost of final assembly, b) Solicitation Specification Requirements: The Contractor shall submit evidence that it will be capable of meeting the bid specifications, c) Federal Motor Vehicle Safety Standards (FMVSS): The Contractor shall submit: ~..~ (1 ) manufacturer's FMVSS self-certification sticker information that the vehicle complies with relevant FMVSS or (2) manufacturer's certified statement that the contracted buses will not be subi,ect to FMVSS regulations, E-11 T '-y-'" BUY AMERICA CERTIFICATE OF COMPLIANCE WITH FTA REQUIREMENTS " FOR BUSES, OTHER ROLLING STOCK, OR ASSOCIATED EQUIPMENT (To be submitted with a bid or offer exceeding the small purchase threshold for Federal assistance programs, currently set at $100,000.) Certificate of Compliance The bidder hereby certifies that it will comply with the requirements of 49 U.S.C. Section 5323(j)(2)(C), Section 165(b)(3) of the Surface Transportation Assistance Act of 1982, as amended, and the regulations of49 C.F.R. 661.11: Date Signature Company Name Title Certificate of Non-Compliance The bidder hereby certifies that it cannot comply with the requirements of 49 U.S.C, Section 5323(j)(2)(C) and Section 165(b)(3) of the Surface Transportation Assistance Act of 1982, as amended, but may qualify for an exception to the requirements consistent with 49 U.S.C. Sections 53230)(2)(8) or (j)(2)(D), Sections 165(b)(2) or (b)(4) of the Surface Transportation Assistance Act, as amended, and regulations in 49 C.F.R. 661.7. Date Signature ,," , Company Name Title E-12 T' ""''"r. LOBBYING 1352 CFR Part 19 CFR Part 20 I. Applicability to Contracts A. The Lobbying requirements apply to Construction/Architectural and Engineering/Acquisition of Rolling StocklProfessional Service ContractlOperatlonal Service ContractfTumkey contracts. II. Flow Down A. The Lobbying requirements mandate the maximum flow down, pursuant to Byrd Anti-Lobbying Amendment, 31 U.S.C. ~ 1352{b){5) and 49 C.F.R. Part 19, Appendix A, Section 7. III, Mandatory Clause/Language A, Clause and specific language therein are mandated by 49 CFR Part 19, Appendix A. 8, Modifications have been made to the Clause pursuant to Section 10 of the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. ~ 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 9 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, 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 (1/19196) is mandated by 49 CFR Part 20, Appendix A, 2, Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U,S.C. ~ 1601, et seq.]- Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any ,,"'Other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Ad of 1995 who has made lobbying contads 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-13 ~' yo- v. CFR PART 20-CERTIFICATlON 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. 91352 (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. 3 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 ContraG!E>(s Authorized Official Name and Title of Contractor's Authorized Official E-14 T '-'T'" - r------'-.-'""-.... ~.".., /~ ACCESS TO RECORDS AND REPORTS 5325 CFR 18.36 CFR 633.17 I. Applicability to Contracts A, Reference Chart .Requirements for Access to Records and Reports by Type of Contracts. II. Flow Down A, FT A does not require the inclusion of these requirements in subcontracts. III. 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 FT A Recipient in accordance with 49 C. F, R. 18.36(i), the Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the 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 including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a) 1 , which is receiving federal financial assistance through the programs described at 49 U,S,C, 5307, 5309 or 5311. 2. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 633.17, Contractor agrees to provide the Purchaser, the FTA 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 FTA Recipient in accordance with 49 C.F.R. 19.48, Contractor agrees to provide the Purchaser, FTA Administrator, the Comptroller General of the United States or any of their duly authorized representatives with access to any books, documents, papers and .:" 'record of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. 4, Where any Purchaser which is the FT A Recipient or a subgrantee of the FT A Recipient in accordance with 49 U.S.C. 5325(a) enters into a contract for a capital project or improvement (defined at 49 U.S.C. 5302(a)1) through other than competitive bidding, the Contractor shall make available records related to 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 co!,!ducting 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. E-15 r T 6. The Contractor agrees to maintain all books, records, accounts and reports required under this contract for 8 period of not less than three years after the date of termination or expiration of this contract, except In the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FT A Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11). ================================================================================= FEDERAL CHANGES CFR Part 18 I. Applicability to Contracts A. The Federal Changes requirement applies to all contracts, II. Flow Down A. The Federal Changes requirement flows down appropriately to each applicable changed requirement. III. Model Clause/Language A, No specific language is mandated, The following language has been developed by FT A. 1, Federal Changes - Contractor shall at all times comply with all applicable FT A regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Agreement (Form FTA MA (2) dated October, 1995) between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- BONDING REQUIREMENTS I, Applicability to Contracts A, For those construction or facility improvement contracts or subcontracts exceeding $100,000, FT A may accept the bonding policy and requirements of the recipient. provided that they meet the minimum requirements for construction contracts as follows: 1, A bid guarantee from each bidder equivalent to five (5) percent of the bid price, The "bid guarantees. shall consist of a firm commitment such as a bid bond, certifies check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of his bid, execute such contractual documents as may be required within the time specified. ,,:" , 2, A performance bond on the part to the Contractor for 100 percent of the contract price. A .performance bond" is one executed in connection with a contract to secure fulfillment of all the contractor's obligations under such contract. 3, A payment bond on the part ofthe contractor for 100 percent of the contract price, A "payment bond. is one executed in connection with a contract to assure payment, as required by law, of all persons supplying labor and material in the execution of the work provided for in the contract. Payment bond amounts required from Contractors are as follows: . a) of the contract price if the contract price is not more than $1 million; b) of the contract price if the contract price is more than $1 million but not more than $5 million; or E-16 ... "..'T ..... ....-~--- I c) million if the contract price is more than $5 million. 4. A cash deposit. ceItified check or other negotiable instrument may be accepted by a grantee In lieu of performance and payment bonds, provided the grantee has established 8 procedure to assure that the Interest of FTA is adequately protected. An irrevocable letter of credit would 81so satisfy the requirement for a bond. II. Flow Down A, Bonding requirements flow down to the first tier contractors, III. Model ClauseslLanguage A. FT A does not prescribe specific wording to be included in third party contracts, FT A has prepared sample dauses as follows: 1, Bid Bond Requirements (Construction) a) Bid Security (1) A Bid Bond must be issued by a fully qualified surety company acceptable to (Recipient) and listed as a company currently authorized under 31 CFR, Part 223 as possessing a Certificate of Authority as described thereunder. b) Rights Reserved (1) In submitting this Bid, it is understood and agreed by bidder that the right is reserved by (Recipient) to reject any and all bids, or part of any bid, and it is agreed that the Bid may not be withdrawn for a period of [ninety (90)) days subsequent to the opening of bids, without the written consent of (Recipient). (2) It is also understood and agreed that if the undersigned bidder should withdraw any part or all of his bid within [ninety (90)] days after the bid opening without the written consent of (Recipient), shall refuse or be unable to enter into this Contract. as provided above, or refuse or be unable to fumish adequate and acceptable Performance Bonds and Labor and Material Payments Bonds, as provided above, or refuse or be unable to furnish adequate and acceptable insurance, as provided above, he shall forfeit his bid security to the extent of (Recipient's) damages occasioned by such withdrawal, or refusal, or inability to enter into an agreement, or provide adequate security therefor, (3) It is further understood and agreed that to the extent the defaulting bidder's Bid Bond, Certified Check, Cashier's Check, Treasurer's Check, and/or Official Bank Check (excluding any income generated thereby which has been retained by (Recipient) as provided in [Item x "Bid Security" of the Instructions to Bidders}) shall prove inadequate to fully recompense (Recipient) for the damages occasioned by default, then the undersigned bidder agrees to indemnify (Recipient) and pay over to (Recipient) the difference between the bid security and (Recipient's) total damages, so as to make (Recipient) whole, ..:. , (4) The undersigned understands that any material alteration of any of the above or any of the material contained on this form, other than that requested, will render the bid unresponsive, c) Performance and Payment Bonding Requirements (Construction) (1) The Contractor shall be required to obtain performance and payment bonds as follows: (a) Performance bonds E-17 "", ..,'-y.. ~"".....'"t-,,-............,--_.>.........._,-_."-'--- ...' " ..... (I) The penal amount of performance bonds shall be 100 percent of the original contract price. unless the (Recipient) detennines that a lesser amount would be adequate for the protection of the (Recipient), (Ii) The (Recipient) may require additional perfonnance bond protection when a contract price is increased, The increase in protection shall generally equal 1 00 percent of the increase in contract price. The (Recipient) may secure additional protection by directing the Contractor to increase the penal amount of the existing bond or to obtain an additional bond, (2) Payment bonds (a) The penal amount of the payment bonds shall equal: (i) Fifty percent of the contract price if the contract price is not more than $1 million. (ii) Forty percent of the contract price if the contract price is more than $1 million but not more than $5 million; or (iii) Two and one half million if the contract price is more than $5 million. (b) If the original contract price is $5 million or less, the (Recipient) may require additional protection as required by subparagraph 1 if the contract price is increased, d) Performance and Payment Bonding Requirements (Non-Construction) (1) The Contractor may be required to obtain performance and payment bonds when necessary to protect the (Recipient's) interest. (a) The following situations may warrant a performance bond: (i) (Recipient) property or funds are to be provided to the contractor for use in performing the contract or as partial compensation (as in retention of salvaged material). (ii) A contractor sells assets to or merges with another concern, and the (Recipient), after recognizing the latter concern as the successor in interest, desires assurance that it is financially capable. (iii) Substantial progress payments are made before delivery of end items starts, .:" , (iv) Contracts are for dismantling, demolition, or removal of improvements, (2) When it is determined that a performance bond is required. the Contractor shall be required to obtain performance bonds as follows: (a) The penal amount of performance bonds shall be 100 percent of the original contra"ct price, unless the (Recipient) determines that a lesser amount would be adequate for the protection of the (Recipient). (b) The (Recipient) may require additional performance bond protection when a contract price is increased. The increase in E-18 ....~~...~-"'1',.,._,..;-,,~...""'"'.._..-......~.""...""_.,.....__.,."_.~'- .. T protection shaU generaUy equal 1 00 percent of the increase in contract price. The (Recipient) may secure additional protection by directing the Contractor to Increase the penal amount of the existing bond or to obtain an additional bond. e) A payment bond Is required only when a performance bond Is required, and if the use of payment bond is in the (Recipienfs) intereal (1) VVhen it is detennined that a payment bond II required, the Contractor shall be required to obtain payment bonds al follows: (a) The penal amount of payment bonds shall equal: (i) Fifty percent of the contract price if the contract price is not more than $1 million; (ii) Forty percent of the contract price if the contract price is more than $1 million but not more than $5 million: or (iii) Two and one half million if the contract price is increased. f) Advance Payment Bonding Requirements (1) The Contractor may be required to obtain an advance payment bond if the contract contains an advance payment provision and a perfonnance bond is not fumished. The (recipient) shall detennine the amount of the advance payment bond necessary to protect the (Recipient), g) Patent Infringement Bonding Requirements (Patent Indemnity) (1) The Contractor may be required to obtain a patent indemnity bond if a performance bond is not fumished and the financial responsibility of the Contractor is unknown or doubtful. The (recipient) shall determine the amount of the patent indemnity to protect the (Recipient). h) Warranty of the Work and Maintenance Bonds (1) The Contractor warrants to (Recipient), the Architect and/or Engineer that all materials and equipment furnished under this Contract will be of highest quality and new unless otherwise specified by (Recipient), free from faults and defects and in confonnance with the Contract Documents. All work not so confonning to these standards shall be considered defective. If required by the [Project Manager), the Contractor shall fumish satisfactory evidence as to the kind and quality of materials and equipment. (2) The Work fumished must be of first quality and the workmanship must be the best obtainable in the various trades. The Work must be of safe, substantial and durable construction in all respects. The Contractor hereby guarantees the Work against defective materials or faulty workmanship for a minimum period of one (1) year after Final Payment by (Recipient) and shall replace or repair any defective materials or equipment or faulty workmanship during the period of the guarantee at no cost to (Recipient). As additional secUrity for these guarantees. the Contractor shall, prior to the release of Final Payment [as provided in Item X below), furnIsh separateMainteliance (or Guarantee) Bonds in fonn acceptable to (Recipient) written by the same corporate surety that provides the Perfonnance Bonc;l and Labor and Material Payment Bond for this Contract. These bonds shall secure the Contractor's obligation to replace or repair defective materials and faulty workmanship for a minimum period of one (1) year after Final Payment and shall be written in an amount equal to ONE HUNDRED PERCENT (100%) of the CONTRACT SUM, as adjusted (if at all). E-19 ~~~ .~ I.,.... ",.._b,;'"""~""_h"C.,..'~."_,~,_,_""",_,.~"~",,,,",,,,,,,~....."~,_....~~-...~.__....""...,"~~..___.,._..+-._...,~_"u..,,,,"______.__"..~-"".~'" . ' =====================~F_ ;;;;; .... IL n -===================== CLEAN AIR 7401 et seq CFR 15.61 CFR Part 18 I. Applicability to Contracts A, The Clean Air requirements apply to all contracts exceeding $100,000, including indefinite quantities where the amount is expected to exceed $100,000 in any year. II. Flow Down A, The Clean Air requirements flow down to all subcontracts which exceed III. Model Clausesllanguage 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 include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- RECYCLED PRODUCTS 6962 CFR Part 247 Executive Order 12873 I. Applicability to Contracts A, The Bacycled Products requirements apply to all contracts for items designaled by the EPA, when the purchaser or contractor procures $10,000 or more of one of these items during the fiscal year, or has procured $10,000 or more of such items in the previous fiscal year, using Federal funds, New requirements for "recovered materials. will become effective May 1, 1996. These new regulations apply to all procurement actions involving items designated by the EPA, where the procuring agency purchases $10,000 or more of one of these items in a fiscal year, or when the cost of such items purchased during the previous fiscal year was $10,000, II. Flow Down A. These requirements flow down to all to all contractor and subcontractor tiers, III. Model Clausellanguage E-20 ,.. "T' 1"--- A. No specific clause 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), 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. ' ================================================================== I. Applicability to Contract DAVIS-BACON ACT USC &167 276a -276a-5 (1995) CFR ~ 5 (1995) A, Construction contracts over $2,000.00 II. Flow Down A, Applies to third party contractors and subcontractors III. Model Clause/language 1, (The language in this clause is mandated under the DOL regulations at 29 ~ 5.5,) 2. Minimum wages - .,.:", " 'Y' a) All laborers and mechanics employed or working upon the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics, b) Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1 (b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) ofthis section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period, Such laborers the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1 )(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs wrich cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR Part 5,5(a)(4), laborers or mechanics performing work in more than one classification may be compensated at the rate specifiecf for each classification for the time actually worked therin: Provided, Tath the employers payroll records accurately set forth the tim~ spent in each classification in which work is performed, The wage E-21 >~"",_"",."""",""~n"____"""___"""~'''''''._'''~'''~'~~.~""...--,._._---t"--"-,..~,,,,",,,,,,,.~,--,,.,",'"''-~''''''~'''-~'-''' .'-"'.......~ ..' , ~..~T" determination and the Davis-Bacon poster (WH-1321) shall be posted at all times by the contractor and its subcontractors at the site of the wor1t in a prominent and accessible place where it can be easily seen by the workers, c) Whenever the minimum wage rate presaibed in the contract for a class of laborers or mechanics incfudes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. d) If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided. That the Secretary of labor has found, upon the written request of the contractor. that the applicable standards of the Davis- Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. e) The contracting officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination, The contracting officer shall approve an additional classification and wage rate and fringe benefits therefor only when the following criteria have been met: (1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits. bears a reasonable relationship to the wage rates contained in the wage determination. f) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, Washington, DC 20210, The Administrator, or an authorized representative, will.approve. modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30- day period that additional time is necessary. g) In the event the contractor, the laborers or mechanics \0 be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount, designated for fringe benefits, where appropriate), the contracting officer shall refer the questions. including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination with 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 3D-day period that additional time is necessary, ,,;:- , h) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (1 )(iv) (B) or (C) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification, 3. Withholding - a) The [ insert name of grantee] shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to E-22 .. -.,'. -4'-~" ..' be withheld from the contractor under this contract or any other Federal contract with the same prime contractor, 'or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advance. as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic. including any apprentice, trainee, or helper, employed or working on the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), all or part of the wages required by the contract. the [ insert name of grantee) may, after written notice to the contractor. sponsor. applicant, or owner, take such action as may be necessary to"cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. b) Payrolls and basic records - (i) Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project), Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1 (b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5,5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1 (b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits, Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. 4, The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the [insert name of grantee] for transmission to the Federal Transit Administration, The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR part 5. This information may be ~ubmitted in any form desired. Optional Form WH-347 is available for this purpose nd may be purchased from the Superintendent of Documents (Federal Stock Number 029- 005-00014-1), U.S, Government Printing Office, Washington, DC 20402, The prime contractor is responsible for the submission of copies of payrolls by all subcontractors, 5, Each payroll submitted shall be accompanied by a .Statement of Compliance," signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of .:_, the persons employed under the contract and shall certify the following: a) That the payroll for the payroll period contains the information required to be maintained under 29 CFR part 5 and that such information is correct and complete; b) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR part 3; ,c) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work E-23 T -~'-"''''''''''''''T''~'--'''''-'-'''''''''''-''.'^'-''~-'''"-''''''''-'-'''"'''''~ ..' pedormed. as specified in the applicable wage detennination incorporated into the contract. 6, The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the "Statement of Compliance- required by paragraph (3)(ii)(B) of this section. 7. The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 oftille 31 of the United States Code. 8, The contractor or subcontractor shall make the records required under paragraph (3)(i) of this section available for inspection, copying. or transcription by authorized representatives of the Federal Transit Administration or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. 9, If the contractor or subcontractor fails to submit the required records or to make them available, the Federal agency may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. 10. Apprentices and trainees - (i) Apprentices - Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U,S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, or if a person is employed in his or her first days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice, The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed, In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator of the Wage and Hour Division of the U,S. Department of Labor determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, or a State Apprenticeship Agency recognized by the Bureau, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. , , . .. 11 , Trainees - Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration, Every trainee must be paid at not less than the rate specified in the E-24 'T' ...........""..,,'..--.., ~"'~..'.- approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourty rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits. trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of wOt1c actually performed, In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. 12, Equal employment opportunity - The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30, 13. Compliance with Copeland Act requirements - The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract. 14. Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as the Federal Transit Administration may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5, 15. Contract termination: debarment - A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 16, Compliance with Davis-Bacon and Related Act requirements - All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract, 17, Disputes concerning labor standards - Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5. 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives, 18. Certification of eligibility - (i) By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's .. firm is a person or firm ineligible to be awarded Government contracts by virtue of section ..l , 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1), 19. No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section of the Davis-Bacon Act or 29 CFR 5,12(a)(1). 20. The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U,S.C, 1001, ' --------------------------------------------------------------------------------- --------------------------------------------------------~------------------------ E-25 ..' Y. r' .....-.-.......-,.......-,.-"---"~,..,,..,~....-,.,,..,..-,. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT 55 327 --333 (1995) 5 5 (1995) 51926 (1995) . . I. 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 articles normally available on the open market. II. Flow Down A. Applies to third party contractors and subcontractors. III. Model Clauses/Language A. Pursuant to Section 102 (Overtime): B. (These dauses 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 pennit 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 pennitted 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 E-26 .. "'T' ..............._,............._-'"'"_."t"._..._..."'."~...~';""'"....,,..'-"'_".~..___""""""'~'-..."..,_.w.-,_. ~ for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this secIIOn. 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 ofthe 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 under the Housing Act of 1949, in the construction or development of the project), Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1 (b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid, Whenever the Secretary of Labor has found under 29 CFR (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 Work 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 include the requirements of this section in each subcontract, The term "subcontract" under this section is considered to refer to a person who agrees to perform any part of the labor or material requirements of a contract for construction, alteration or repair, A person who undertakes to perform a portion of a contract involving the furnishing of supplies or materials will be considered a "subcontractor" under this section if the work in question involves the performance of construction work and is to be ~", performed: (1) directly on or near the construction site, or (2) by the employer for the specific project on a customized basis, Thus, a supplier of materials which will become an integral part of the construction is a "subcontractor" if the supplier fabricates or assembles the goods or materials in question specifically for the construction project and the work involved may be said to be construction activity, If the goods or materials in question are ordinarily sold to other customers from regular inventory, the supplier is not a "subcontractor." The requirements of this section do not apply to contracts or subcosubcontract. The term "subcontract" under this section is considered to refer to a person who agrees E-27 ~ .".'T' ===========--====--~-==== -============================== . . COPELAND ANTI-KICKBACK ACT S 276c (1995) S 3 (1995) S 5 (1995) I. Applicability to Contracts A All construction contracts in excess of $2,000. II. Flow Down A Applicable to all third party contractors and subcontractors. III, Model ClauseslLanguage A of the Copeland Act makes it clear that the purpose of the Act is to assist in "the enforcement of the minimum wage proviSions of the Davis- Bacon Act.- In keeping with this intent DOL has included a section on the Copeland Act in the mandatory language of the Davis-Bacon provisions. The language can be found at 9 5,5(a)(5) of the Davis-Bacon model clauses and reads as follows: 1. Compliance with Copeland Act requirements - The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract. B, Since there is no specific statutory or regulatory requirements for additional mandatory language, I would recommend that no additional clauses are necessary for this provision. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- NO GOVERNMENT OBLIGATION TO THIRD PARTIES I. Applicability to Contracts A Applicable to all contracts, II. Flow Down A Not required by statute or regulation for either primary contractors or subcontractors, this concept should flow down to all levels to clarify, to all parties to the contract, that the Federal Government does not have contractual liability to third parties, absent specific written consent. III. Model ClauselLanguage A While no specific language is required, FTA has developed the following language. 1. No Oblig~tion by the Federal Government. ,:", 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 underlying contract. b) The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FT A. It is further agreed that the clause shall not be modified. except to identify the subcontractor who will be subject to its provisions, --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- E-28 ~' .'T ,.,~ ,__."~,.,.~",.............~"."'>....._.....""""~~.".~..~..,,.,...,.".".~,e.-"''''''~''T'-''''~"';.''''''-~'~'-'''''''''''''~'''''''.'''''''''-'' ,....--.-..-"-"'~,.-...~-.,,,"~ PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS 3801 et seq. CFR Part 3118 U.S.C. 1001 5307 I. Applicability to Contracts A. These requirements are applicable to all contracts. II. Flow Down A. These requirements flow down to contractors and subcontractors who make, present, or submit covered claims and statements. III. Model ClauselLanguage 1, These requirements have no specified language, so FT A proffers the following language. 2. Program Fraud and False or Fraudulent Statements or Related Acts, ~", ... '9'"' 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 causes to be made, pertaining to the underlying contract or the FT A assisted project for which this contract work is being performed. ln 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. b) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. ~ 5307, the Government reserves the right to impose the penalties of 18 U.S.C. ~ 1001 and 49 U.S.C. ~ 5307(n)(1) on the Contractor, to the extent the Federal Govemment deems appropriate, c) The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FT A. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions, E-29 "....~;_,~____..,'~,",",.,_,...__...~."'1 ..,.,. ~........._.,---..,-- TERMINATION U.S.C.Part 18 FT A Circular 4220.1 D .. . 1. Applicability to Contracts A. 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 induding 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. II. Flow Down A. The termination requirements flow down to all contracts in excess of $10,000, with the exception of contracts with nonprofit organizations and institutions of higher learning, III. Model ClauselLanguage 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 wor1< performed up to the time of termination, The Contractor shall promptly submit its termination claim to (Recipient) to be paid the Contraclo 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 wor1<, 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 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. E-30 .. T" " .'. .....,..... ".-..- -, ....,-;..,..,.,............-...-*"""""'_.,...,~,~,-~--"'..,,,"".....'. ........~."..-..._.~_M_.....M"........1'.,.~ d) Waiver of Remedies for any Breach In the event that (Recipient) eleds to waive its remedies for any breach by Contrador 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 Contrad. 3. Termination for Convenience (Professional or Transit Service Contrads) The (Recipient). by written notice, may terminate this contract, in whole or in part. when it is in the Govemmenrs interest If this contract is terminated, the Recipient shall be liable only for payment under the payment provisions of this contrad for services rendered before the effedive 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 Contrador fails to comply with any other provisions of this contrad, the (Recipient) may terminate this contrad 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 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, including delivery services, within the time specified in this contract or any extension or if the Contractor fails to comply with any other provisions of this contract. the (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 contract 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 clause, 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 includes 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- E-31 T" '-"""- '-.-..-y-'''''-''''''-' . ... . . (1) the delay in completing the WOf1c arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes Indude: acts of God. ads 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 clauses. b} If, after termination of the Contrador's right to proceed, it is determined that the Contrador was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the Recipient. 7. Termination for Convenience or Default (Architect and Engineering) a} The (Recipient) may terminate this contrad in whole or in part, for the Recipient's convenience or because of the failure of the Contractor to fulfill the contract obligations. 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 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. 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 claim to the (Recipient) and the parties shall negotiate the termination settlement to be paid the Contractor. E-32 ,.'- I .,_.._-,...,._,~,.,.,. d) If the termination is for the convenience of the (Recipient), the Contractor shall be paid its contract cIose-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 I. Applicability to Contracts A, 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. II, Flow Down A, Contractors are required to pass this requirement on to subcontractors seeking subcontracts over $100,000. Thus, the terms "lower tier covered participant" and "lower tier covered transaction" include both contractors and subcontractors and contracts and subcontracts over III. 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 lier 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 knowmgly 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 trans,action,M Mdebarred,. .suspended," "ineligible," "lower tier covered transaction,. :Mparticipant," "persons," "lower tier covered transaction," "principal," "proposal," and "voluntarily excluded," as used in this E-33 T'-' '_--y-.....__'_.,.. .H .. ,.. .. ,/ 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, 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 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. 9 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, 929.105(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. Applicability tc;Contracts A. When a grantee maintains files on drug and alcohol enforcement activities for FT A, and those files are organized so that information could be retrieved by personal identifier, the Privacy Act requirements apply to all contracts, II. Flow Down A. The Federal Privacy Act requirements flow down to each third party contractor and their contracts at every tier, III. Model Clause/Language E-34 T-' '_..--y-..._-~----_._--'_._.,.._,."'_..,..,...._---- A. The text of the following clause has not been mandated by statute or specific regulation. but has been developed by FT A. 1, Contracts Involving FedetaI Privacy Ad. Requirements - The following requirements apply to the Contractor and its employees that administer any system of records on behalf of the Federal Government ooder any contract: 2, The Contractor agrees to comply with. and assures the compliance of its employees with, the infonnation 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 Government The Contractor understands that the requirements of the Privacy Ad.. including the civil and criminal penalties for violation of that Act, apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may result in termination of the undertying contract. 4, Thp. Contractor also agrees to include these requirements in each subcontract to administer any system of records on behalf of the Federal Government financed in whole or in part with Federal assistance provided by FT A. ===~==========================================--================================== 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. Applicability to Contracts A. The Civil Rights Requirements apply to all contracts, II. Flow Down A, The Civil Rights requirements flow down to all third party contractors and their contracts at every tier. III. Model Clause/Language A. The following ,clause was predicated on language contained at 49 CFR Part Appendix A. but FTA 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, 9 2000d. section 303 of the Age Discrimination Act of 1975, as amended, 42 ,...U,S,C. 96102, section 202 of the Americans with Disabilities Act of 1990, 42 U,S,C. 9 .. '12132. and Federal transit law at 49 U.S.C. ~ 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 FT A may issue, 2. Equal Employment Opportunity - The following equal employment opportunity requirements apply to the undertying contract: Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights Aot, as amended, 42 U,S,C. S 2000e, and 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, E-35 T' .o--y-... __.____--"..~-_.~_._,_,_,__.___'_.... 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 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, reauitment or recruitment advertising, layoff or termination; rates of payor other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FT A may issue. " 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. 9 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. 9 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. 5. The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- BREACHES AND DISPUTE RESOLUTION CFR Part 18 FT A Circular 4220.1 D I. Applicability to Contracts A. 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 sanclions 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. II. Flow Down A. The Breaches and Dispute Resolutions requirements flow down to all tiers. III. .:- > Model Clauses/Language A. FTA 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 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 conclusive unless within [ten (10)] days from the date of receipt of its copy, the ContractOf E-36 --r-- '---Y--"'- ..-- .~-, .......--- .~_.~-_.... '-'"-''' ......--.- mails or otherwise furnishes a written appeal to the [t1Ue of employee). In connection with any such appeal, the Contractor shall be afforded 2. Perfonnance 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. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- PATENT AND RIGHTS IN DATA CFR Part 401 CFR Parts 18 and 19 I. Applicability to Contracts A. Patent and rights in data requirements for federally assisted projects ONLY apply to research projects in which FT A finances the purpose of the grant is to finance the development of a product or information. These patent and data rights requirements do not apply to capital projects or operating projects, even though a small portion of the sales price may cover the cost of product development or writing the user's manual. II. Flow Down A. The Patent and Rights in Data requirements apply to all contractors and their contracts at every tier. III. Model ClauselL~guage A. The FTA patent clause is substantially similar to the text of 49 C.F.R. Part 19, Appendix A, Section 5, but the rights in data clause reflects FTA objectives. For patent rights, FTA is governed by Federal law and regulation. For data rights, the text on copyrights is insufficient to meet FTA's purposes for awarding research grants. This model clause, with larger rights as a standard, is proposed with the understanding that this sta~dard could be modified to FT A's needs. B. CONTRAc:;TS INVOLVING EXPERIMENTAL, DEVELOPMENTAL, OR RESEARCH WORK. 1. Rights in Data - This following requirements apply to each contract involving experimental, developmental or research work: 2. The term "subject data" used in this clause means recorded information, whether or not copyrighted, that is delivered or specified to be delivered under the contract. The term E.37 T- ...-.-. ---r.-...---..~-.-..-.--.-....--..-,.~'- /' includes graphic or pictorial delineation in media such as drawings or photographs; text in specifications or related performance or design-type documents; machine forms such as punched cards, magnetic tape, or computer memory printouts; and information retained in computer memory. Examples include, but are not limited to: computer software, engineering drawings and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identifications, and related information. The term "subject data" does not Include financial reports, cost analyses, and similar information incidental to contract administration. /' 3. The following restrictions apply to all subject data first produced in the performance of the contract to which this Attachment has been added: a) Except for its own internal use, the Purchaser or Contractor may not publish or reproduce subject data in whole or in part, or in any manner or form, nor may the Purchaser or Contractor authorize others to do so, without the written consent of the Federal Govemment, until such time as the Federal Government may have either released or approved the release of such data to the public; this restriction on publication, however, does not apply to any contract with an academic institution. b) In accordance with 49 C.F.R. 918.34 and 49 C.F.R. 9 19.36, the Federal Government reserves a royalty-free, non-exclusive and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use, for "Federal Government purposes: any subject data or copyright described in subsections (2)(b)1 and (2)(b)2 of this clause below. As used in the previous sentence, "for Federal Government purposes," means use only for the direct purposes of the Federal Government. Without the copyright owner's consent, the Federal Government may not extend its Federal license to any other party. (1) Any subject data developed under that contract. whether or not a copyright has been obtained; and (2) Any rights of copyright purchased by the Purchaser or Contractor using Federal assistance in whole or in part proVided by FT A. 4. When FT A awards Federal assistance for experimental, developmental, or research work, it is FTA's general intention to increase transportation knowledge available to the public, rather than to restrict the benefits resulting from the work to participants in that work. Therefore, unless FTA determines otherwise, the Purchaser and the Contractor performing experimental, developmental, or research work required by the underlying contract to which this Attachment is added agrees to permit FT A to make available to the public, either FTA's license in the copyright to any subject data developed in the course of that contract, or a copy of the subject data first produced under the contract for which a copyright has not been obtained, Ifthe experimental, developmental, or research work, which is the subject of the under1ying contract, is not completed for any reason whatsoever, all data developed under that contract shall become subject data as defined in subsection (a) ofthis clause and shall be delivered as the Federal Government may direct. This subsection (c) , however, does not apply to adaptations of automatic data processing equipment or programs for the Purchaser or Contractor's use whose costs are financed in whole or in part with Federal assistance proVided by FT A for transportation .:.., capital projects. 5, Unless prohibited by state law, upon request by the Federal Government, the Purchaser and the Contractor agree to indemnify, save, and hold harmless the Federal Government, its officers, agents, and employees acting within the scope of their official duties against any liability, including costs and expenses, resulting from any willful or intentional violation by the Purchaser or Contractor of proprietary rights, copyrights, or right of privacy, arising out of the publication, translation, reproduction, delivery, use, or disposition of any data fumished under that contract. Neither the Purchaser nor the Contractor shall be required to indemnify the Federal Government for any such liability arising out of the wrongful act of any employee, official, or agents of the Federal Government. E-38 '_.""..,.'~,. ~,~...",..p_,=,,'-'''I''''k'_''-_'''",,-~'''''''''''_''''''_''__~'.~''~'"''_'''''''''~ 6. Nothing contained in this clause on rights in data shall imply a license to the Federal Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Federal Govemment under any patent. 7. Data developed by the Purchaser or Contractor and financed entirely without using Federal assistance provided by the Federal Government that has been incorporated into work required by the underlying contract to which this Attactvnent has been added is exempt from the requirements of subsections (b), (c), and (d) of this dause , provided that the Purchaser or Contractor identifies that data in writing at the time of delivery of the contract work. 8. Unless FT A determines otherwise, the Contractor agrees to in dude these requirements in each subcontract for experimental, developmental, or research work financed in whole or in part with Federal assistance provided by FTA. a) Unless the Federal Government later makes a contrary determination in writing, irrespective of the Contractor's status (i.e. , a large business, small business, state govemment or state instrumentality, local government, nonprofit organization, institution of higher education, individual, etc.), the Purchaser and the Contractor agree to take the necessary actions to provide, through FT A, those rights in that invention due the Federal Government as described in U.S. Department of Commerce regulations, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," 37 C.F.R. Part 401. b) The Contractor also agrees to include these requirements in each subcontract for experimental, developmental, or research work financed in whole or in part with Federal assistance provided by FTA. C. Patent Rights - This following requirements apply to each contract involving experimental. developmental, or research work: a) General - If any invention, improv~ment. or discovery is conceived or first actually reduced to practice in the course of or under the contract to which this Attachment has been added, and that invention, improvement, or discovery is patentable under the laws of the United States of America or any foreign country, the Purchaser and Contractor agree to take actions necessary to provide immediate notice and a detailed report to the party at a higher tier until FT A is ultimately notified. b) Unless the Federal Government later makes a contrary determination in writing, irrespective of the Contractor's status (a large business, small business, state government or state instrumentality, local government, nonprofit organization, institution of higher education, individual), the Purchaser and the Contractor agree to take the necessary actions to provide, through FT A, those rights in that invention due the Federal Government as described in U.S. Department of Commerce regulations, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," 37 C.F.R. Part 401. c) The Contractor also agrees to indude the requirements of this clause in each .e, subcontract for experimental, developmental, or research work financed in whole or in part with Federal assistance provided by FTA. ------------------------------------------------------------------ ------------------------------------------------------------------ TRANSIT EMPLOYEE PROTE,CTIVE AGREEMENTS U.S.C, ~ 5310, ~ 5311, and ~ 5333 CFR Part 215 I. Applicability to Contracts A. The Transit Employee Protective Provisions apply to each contract for transit operations pertormed by employees of a Contract()r recognized by FTA to be a transit operator. (Because transit E-39 T--- ~~--...........-->....~~--..~- +,j.,;..-,",~, .~" operations Involve many activities apart from directly driving or operating transit vehicles, FT A determines which activities constitute transit "operations. for purposes of this clause.) " II. Flow Down A. These provisions are applicable to all contracts and subcontracts at every tier. III. Model ClauselLanguage A. Since no mandatory language is specified, FTA had developed the following language. Transit Employee Protective Provisions. 8. 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 involved, 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 letter. The requirements of this subsection (1), however, do not apply to any contract financed with Federal assistance provided by FTA either for projects for elderly individuals and individuals with disabilities authorized by 49 U.S.C. 9 5310(a)(2), or for projects for nonurbanized areas authorized by 49 U.S.C. 9 5311. Alternate provisions for those projects are set forth in subsections.(b) and (c) of this clause. 2. Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C.s 5310(a)(2) for Elderly Individuals and Individuals with Disabilities - If the contract involves transit operations financed in whole or in part with Federal assistance authorized by 49 U.S.C. 9 5310(a)(2), and if the U.S. Secretary of Transportation has determined or determines in the future that the employee protective requirements of 49 U.S.C. S 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. 9 5333(b), u.s. DOL guidelines at 29 C.F.R. Part 215, and any amendments thereto. These terms and conditions are identified in the U.S. DOL's letter of certification to FT A, the date of which is set forth Grant Agreement or Cooperative Agreement with the state. The Contractor agrees to perform transit operations in connection with the underlying contract in compliance with the conditions stated in that U.S. DOL letter. 3. Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C. S 5311 in Nonurbanized Areas - If the contract involves transit operations financed in whol~ or in .:-, part with Federal assistance authorized by 49 U.S.C. 9 5311, the Contractor agrees to comply with the terms and conditions of the Special Warranty for the Nonurbanized Area Program agreed to by the U.S. Secretaries of Transportation and Labor, dated May 31, 1979, and the procedures implemented by U.S. DOL or any revision thereto. C. The Contractor also agrees to include the any applicable requirements in each subcontract Involving transit operations financed in whole or in part with Federal assistance provided by FT A. --------------------------------------------------------------------------------- --------------------------------------------------------------------------------- E-40 r '-r" ,. 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, exclusive of funds for transit vehicle 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 included 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, it will be clearly stated in the Special Specifications. and if 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 declare the Contractor noncomplaint 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) ofthe 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 STURM 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 are 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-41 T- '.-'-r--'.'-"-."---' 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 declare the contractor ooncomplaint 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 representative 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 include 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) Which 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) Whose management and daily business operations are controlled by one or more c) of the socially and economically disadvantaged individuals who own it. or d) Which is at least 51 percent owned by one or more women individuals, or in the case of any publicly owned business, at least 51% of the stock of which is owned by one or more women individuals; and e) Whose management and daily business operations are controlled by f) one or more women individuals who own it. 2. "S.mall 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 whoare 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) of the Small Business Act. .:-, a) "Black Americans", which includes persons having origins in any of the Black racial groups of Africa: b) "Hispanic Americans", which includes 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-42 T' -""T'"""-"--'~------'~-----'-- - ',. f) "Asian-Pacific Americans., which includes persons whose origins are from Japan, China, Taiwan, Kerea, Vietnam, Laos, Cambodia. the Philippines, Samoa, Guam, the U.S. Trust Territories of PacifIC, and the Northern Marianas; g) "Asian-Indian Americans", which includes persons whose origins are from India, Pakistan, and Bangladesh. ===================~============================================================= STATE AND LOCAL LAW DISCLAIMER I. Applicability to Contracts A. This disclaimer applies to all contracts. II. Flow Down A. The Disclaimer has unlimited flow down. III. Model Clause/Language A. FTA has developed the following language. 1 . 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. ====~============================================================================ INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS FT A Circular 4220.1 D 1. Applicability to Contracts A. The incorporation of FTA terms applies to all contracts. II. Flow Down A. The incorporation of FTA terms has unlimited flow down. 111. Model ClauselLanguage A. FT A 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 4220.1D, 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 FT A terms and conditions. E-43 ? . -.. . PTS Agreement # OR180014040002 - Exhibit F CITY OF WOODBURN SMALL CITY OPERATING ASSISTANCE AGREEMENT FY 1997-98 FINANCIAL INFORMATION The information below will assist auditors prepare a report in compliance with the requirements of Office of Budget and Management (OMB) Circular A-128 and OMB Circular A-133 This grant is financed by one or more of the funding sources as indicated below: Federal Program Title Federal Funds available through: State Program Title: State funds available through ORS 323.455 and ORS 391.800 through ORS 390.830. Title 49 CFR Section 5311 Federal Catalogue Number: 20.509 Federal Grant Number: DOR-18-0014=$16,700 State Grant Number: Total Federal Funding $16,700 Total State Funding * Federal Funding Agency U.S. Department of Transportation Federal Transit Administration Region X Suite 3142 Federal Building 915 Second Avenue Seattle, Washington 98174 State Funding Agency: Oregon Department of Transportation Transportation Branch Public Transit Section Mill Creek Office Park 555 13th Street NE Salem Oregon 97310 *Auditors may cite these totals in their audits from these sources. PAGE'F-1 ~.,--_. .