18-Q-Attachment Q- Flow-Down Clauses.pdf

“FLOW-DOWN” CLAUSES APPLICABLE TO CONTRACTS AND

PURCHASE ORDERS INVOLVING FUNDS FROM A FEDERAL GRANT

If the Contract or Purchase Order involves the use of funds from a Federal government grant— or funds from a subcontract at any tier relating to a Federal government grant—the following selected clauses from the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (“Uniform Guidance”), Appendix II are incorporated into and form a part of the terms and conditions of the Contract or Purchase Order. The full text of the Uniform Guidance may be found at 2 C.F.R. Part 200. Contractor agrees to flow down all applicable clauses from the Uniform Guidance to lower-tier subcontractors.

1. Equal Employment Opportunity. For all Contracts and Purchase Orders that qualify as

“federally assisted construction contracts” as defined in 41 CFR Part 60–1.3, Contractor agrees to comply with E.O. 11246, “Equal Employment Opportunity,” as amended by E.O.

11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and as supplemented by regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.”

2. Davis Bacon Act, as amended (40 U.S.C. 3141—3148). If the Contract or Purchase

Order is in excess of $2000 and pertains to construction or repair, and further, if required by Federal program legislation, Contractor shall comply with the Davis-Bacon Act (40 U.S.C. 3141—3148) and as supplemented by Department of Labor regulations (29 CFR part 5, “Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction”). Under this Act, Contractor is required to pay wages to laborers and mechanics at a rate not less than the minimum wages specified in a wage determination made by the Secretary of Labor. In addition, Seller Contractor is required to pay wages not less than once a week.

3. Copeland “Anti-Kickback” Act (40 U.S.C. 3145) – If the Contract or Purchase Order is in excess of $2000 and pertains to construction or repair, Contractor shall comply with the Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides in part that Contractor shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which it is otherwise entitled.

4. Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708) – If the Contract or Purchase Order is in excess of $100,000 and involves the employment of mechanics or laborers, Contractor shall comply with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR part 5). Under 40 U.S.C. 3702 of the Act, Contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than 1½ times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.

Attachment "Q"

5. Rights to Inventions Made Under a Contract or Agreement – If the Contract or

Purchase Order is for the performance of experimental, developmental, or research work, Contractor shall provide for the rights of the Federal Government and County of Rockland in any resulting invention in accordance with 37 CFR part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.

6. Clean Air Act (42 U.S.C. 7401—7671q) and the Federal Water Pollution Control Act

(33 U.S.C. 1251— 1387), as amended – If the Contract or Purchase Order is in excess of $150,000 Contractor shall comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401—7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251—1387). Violations shall be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).

7. Energy Policy and Conservation Act (42 U.S.C. 6201) – Contractor agrees to comply with all 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 (42 U.S.C. 6201).

8. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352) – If the Contract or Purchase Order is for $100,000 or more, Contractor and its subcontractors shall file the certification required by this statute and associated regulations. 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 any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the County of Rockland.

9. Debarment and Suspension (E.O.s 12549 and 12689) – Contractor represents and warrants that it is not listed on the governmentwide Excluded Parties List System in the System for Award Management (SAM) in accordance with OMB guidelines at 2 CFR 180 that implement E.O.s 12549 and 12689, “Debarment and Suspension.” This list contains the names of parties debarred, suspended, or otherwise excluded by agencies, and contractors declared ineligible under statutory or regulatory authority other than E.O.

12549.

10. Compliance with HHS and NIH Requirements—When applicable, Contractor shall comply with the Public Policy Requirements applicable to contractors providing routine goods and/or services set forth in HHS Grants Policy Statement, available at http://www.hhs.gov/asfr/ogapa/aboutog/hhsgps107.pdf., and the NIH Grants Policy Statement, available at http://grants.nih.gov/grants/policy/nihgps_2013/.

http://www.hhs.gov/asfr/ogapa/aboutog/hhsgps107.pdf http://grants.nih.gov/grants/policy/nihgps_2013/

11. Breaches and Dispute Resolution:

• 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 County of Rockland's Director of Purchasing. This decision shall be final and conclusive unless within [ten (10)] days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the County Executive. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the County Executive shall be binding upon the Contractor and the Contractor shall abide be the decision.

• Performance During Dispute - Unless otherwise directed by The County of

Rockland, Contractor shall continue performance under this Contract while matters in dispute are being resolved.

• 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.

• Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other matters in question between the County of Rockland 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 County of Rockland is located.

• 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 County of Rockland, (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.

12. Termination for Convenience (General Provision) - The County of Rockland 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 closeout costs, and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to The County of Rockland to be paid the Contractor. If the Contractor has any property in its possession belonging to the County of Rockland, the Contractor will account for the same, and dispose of it in the manner the County of Rockland directs.

13. 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 County of Rockland 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.

If it is later determined by the County of Rockland 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 County of Rockland, after setting up a new delivery of performance schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience.

14. Opportunity to Cure (General Provision) - The County of Rockland 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 If Contractor fails to remedy to County of Rockland'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 County of Rockland setting forth the nature of said breach or default, County of Rockland 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 County of Rockland from also pursuing all available remedies against Contractor and its sureties for said breach or default.

15. Waiver of Remedies for any Breach In the event that the County of Rockland elects to waive its remedies for any breach by Contractor of any covenant, term or condition of this Contract, such waiver by the County of Rockland shall not limit the County of Rockland's remedies for any succeeding breach of that or of any other term, covenant, or condition of this Contract.

16. Termination for Convenience (Professional or Transit Service Contracts) The County of Rockland, by written notice, may terminate this contract, in whole or in part, when it is in the Government's interest. If this contract is terminated, the County of Rockland shall be liable only for payment under the payment provisions of this contract for services rendered before the effective date of termination.

17. Termination for Default (Supplies and Service) If the Contractor fails to deliver supplies or to perform the services within the time specified in this contract or any extension or if the Contractor fails to comply with any other provisions of this contract, the County of Rockland may terminate this contract for default. The County of Rockland shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default.

The Contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner or performance set forth in this contract.

If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the County of Rockland.

18. Termination for Default (Transportation Services) If the Contractor fails to pick up the commodities or to perform the services, including delivery services, within the time specified in this contract or any extension or if the Contractor fails to comply with any other provisions of this contract, the County of Rockland may terminate this contract for default.

The County of Rockland shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of default. The Contractor will only be paid the contract price for services performed in accordance with the manner of performance set forth in this contract. If this contract is terminated while the Contractor has possession of County of Rockland goods or equipment, the Contractor shall, upon direction of the County of Rockland, protect and preserve the goods or equipment until surrendered to the County of Rockland or its agent. The Contractor and County of Rockland shall agree on payment for the preservation and protection of goods or equipment. Failure to agree on an amount will be resolved under the Dispute clause. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the County of Rockland.

19. 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 County of Rockland may terminate this contract for default. The County of Rockland shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default.

In this event, the County of Rockland 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 County of Rockland 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 County of Rockland in completing the work. The Contractor's right to proceed shall not be terminated nor the Contractor charged with damages under this clause if- 1. the delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include: acts of God, acts of the County of Rockland, acts of another Contractor in the performance of a contract with the County of Rockland, epidemics, quarantine restrictions, strikes, freight embargoes; and

2. the contractor, within [10] days from the beginning of any delay, notifies the County of Rockland in writing of the causes of delay. If in the judgment of the County of Rockland, the delay is excusable, the time for completing the work shall be extended. The judgment of the County of Rockland shall be final and conclusive on the parties, but subject to appeal under the Disputes clauses. If, after termination of the Contractor's right to proceed, it is determined that the Contractor was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the County of Rockland.

20. Termination for Convenience or Default (Architect and Engineering) The County of Rockland may terminate this contract in whole or in part, for the County of Rockland's convenience or because of the failure of the Contractor to fulfill the contract obligations.

The County of Rockland shall terminate by delivering to the Contractor a Notice of Termination specifying the nature, extent, and effective date of the termination. Upon receipt of the notice, the Contractor shall (1) immediately discontinue all services affected (unless the notice directs otherwise), and (2) deliver to the Contracting Officer all data, drawings, specifications, reports, estimates, summaries, and other information and materials accumulated in performing this contract, whether completed or in process. If the termination is for the convenience of the County of Rockland, the Contracting Officer shall make an equitable adjustment in the contract price but shall allow no anticipated profit on unperformed services. If the termination is for failure of the Contractor to fulfill the contract obligations, the County of Rockland may complete the work by contact or otherwise and the Contractor shall be liable for any additional cost incurred by the County of Rockland. 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 County of Rockland.

21. Termination for Convenience of Default (Cost-Type Contracts) The County of

Rockland 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 County of Rockland or for the default of the Contractor. If the termination is for default, the notice shall state the manner in which the contractor has failed to perform the requirements of the contract. The Contractor shall account for any property in its possession paid for from funds received from the County of Rockland, or property supplied to the Contractor by the County of Rockland. If the termination is for default, the County of Rockland 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 County of Rockland and the parties shall negotiate the termination settlement to be paid the Contractor. If the termination is for the convenience of the County of Rockland, the Contractor shall be paid its contract close-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. If, after serving a notice of termination for default, the County of Rockland 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 County of Rockland, after setting up a new work schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience.

CONFLICTS AMONG CLAUSES APPLICABLE TO THE ORDER

In the event of any conflict among the clauses applicable to the Contract or Purchase Order, including those not applicable solely to federal grants, the most stringent clause will apply.

CONFLICTS AMONG CLAUSES APPLICABLE TO THE ORDER