4-RFP 24-012 Tires Appendix C Federal Terms and Conditions~2.pdf

Salem Area Mass Transit District (SAMTD) RFP 24-012 Tires

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APPENDIX C

FEDERAL TRANSIT ADMINISTRATION (FTA)

CONTRACT CLAUSES

This Contract is funded in part under a financial assistance agreement between Salem Area Mass Transit District and the U.S. Department of Transportation, Federal Transit Administration (FTA). This Contract is subject to all provisions prescribed for third party contracts by that financial assistance agreement, including, but not necessarily limited to, the provisions below. Unless otherwise specified, all terms of this Section shall be included all supplier and subcontractor agreements.

Except as FTA determines otherwise in writing Contractor must comply with all applicable federal laws, regulations, and requirements, and should follow applicable federal guidance. FTA may take enforcement action if Contractor violates an applicable federal law, regulation, or requirement, or does not follow applicable federal guidance.

The following terms are non-negotiable without prior written approval from the US Department of Transportation.

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Contents

FLY AMERICA REQUIREMENTS

BUY AMERICA REQUIREMENTS

CARGO PREFERENCE REQUIREMENTS

ENERGY CONSERVATION REQUIREMENTS

ENVIRONMENTAL REQUIREMENTS

LOBBYING RESTRICTIONS

ACCESS TO RECORDS AND REPORTS

CHANGES TO FEDERAL REQUIREMENTS

RECOVERED MATERIALS & SOLID WASTE

NO GOVERNMENT OBLIGATION TO THIRD PARTIES

PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR

RELATED ACTS

TERMINATION

GOVERNMENT-WIDE DEBARMENT AND SUSPENSION

CIVIL RIGHTS REQUIREMENTS

BREACHES AND DISPUTE RESOLUTION

EMPLOYEE PROTECTIVE AGREEMENTS

Non-Construction Service or Labor Contracts DISADVANTAGED BUSINESS ENTERPRISE (DBE) 49 C.F.R. Part 26 Contractor Requirements

INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS ... 19

AMERICANS WITH DISABILITIES ACT (ADA)

PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO

SURVEILLANCE SERVICES OR EQUIPMENT

NOTIFICATION OF LEGAL MATTERS

TRAFFICKING IN PERSONS

SAFE OPERATION OF MOTOR VEHICLES

Seat Belt Use Distracted Driving

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FLY AMERICA REQUIREMENTS

49 U.S.C. § 40118

41 C.F.R. §§ 301-10.131 – 301-10.143

Applicable to: Contracts that have transportation of persons or shipment of agency property, by air, between a place in the U.S. and a place outside the U.S., or between places outside the U.S., when the grant pays for this activity. Contactors are responsible for ensuring that all subcontractors are in compliance.

Applies to: All contracts: Contractors and subcontractors.

The Contractor agrees to comply with 49 U.S.C. § 40118 (the "Fly America" Act) in accordance with the General Services Administration's regulations at 41 C.F.R. part 301- 10, which provide that recipients and sub recipients of Federal funds and their contractors are required to use U.S. flag air carriers for U.S. Government-financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign air carrier was used, an appropriate certification adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation. The Contractor agrees to include substantially similar provisions in its contracts with subcontractors.

BUY AMERICA REQUIREMENTS

49 U.S.C. § 5323(j) 49 C.F.R. Part 661

49 U.S.C. § 24405(a)

Applicable to: All federally assisted procurements of steel, iron, manufactured goods, and construction materials.

Applies to: Contractors and subcontractors.

The Contractor agrees to comply with 49 U.S.C. § 5323(j) and 49 C.F.R. part 661, which provide that Federal funds may not be obligated unless steel, iron, construction materials, and manufactured products used in FTA-funded projects are produced in the United States, unless a waiver has been granted by the Secretary of Transportation or the product is subject to a general waiver. General waivers are listed in 49 C.F.R. § 661.7.

Separate requirements for rolling stock are set out at 49 U.S.C. § 5323(j)(2)(C) and 49 C.F.R. § 661.11. Rolling stock not subject to a general waiver must be manufactured in the United States and have 70 percent or more domestic content.

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A bidder or offeror must submit to the FTA recipient the appropriate Buy America certification with all bids and proposals on FTA-funded contracts, except those subject to a general waiver. Bids or offers that are not accompanied by a completed Buy America certification must be rejected as nonresponsive. The Contractor agrees to include a substantially similar provision in its contracts with subcontractors.

CARGO PREFERENCE REQUIREMENTS

46 U.S.C. § 55305 46 C.F.R. Part 381

Applicable to: All contracts involving equipment, materials, or commodities which may be transported by ocean vessels.

Applies to: Contractors and subcontractors.

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 (50%) 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 days following the date of loading for shipments originating outside the United States, a legible copy of a rated, “on-board” commercial ocean bill-of-lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington D.C. 20590 and the FTA recipient (t hr oug h t he Contractor in t he case of a subcont r act or’s bill -of-lading.)

3. To include these requirements in all subcontracts issued pursuant to the contract when the subcontract may involve the transport of equipment, materials, or commodities by ocean vessel.

ENERGY CONSERVATION REQUIREMENTS

42 U.S.C. §§ 6321–6327 49 C.F.R. Part 622 Subpart C

Applicable to: All contracts.

Applies to: Contractors and subcontractors.

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. The Contractor also agrees to include a substantially similar provision in its contracts with subcontractors.

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ENVIRONMENTAL REQUIREMENTS

Applicable to: All contracts and subcontracts.

a. General. The Contractor agrees to comply with all applicable environmental and resource use laws, regulations, requirements, and guidance, now in effect or that may become effective in the future, including state and local laws, ordinances, regulations, requirements and guidance. The Contractor also agrees to include substantially similar provisions in its contracts with subcontractors.

b. National Environmental Policy Act. An Award of federal assistance requires the full compliance with applicable environmental laws, regulations, requirements, and guidance. Accordingly, the Contractor will:

(1) Comply and facilitate compliance with federal laws, regulations, and requirements, including, but not limited to:

(a) Federal transit laws, such as 49 U.S.C. § 5323(c)(2), and 23 U.S.C.

§ 139,

(b) The National Environmental Policy Act of 1969 (NEPA), as amended, 42 U.S.C. §§ 4321 et seq., as limited by 42 U.S.C. § 5159, and CEQ’s implementing regulations 40 C.F.R. part 1500- 1508,

(c) Joint FHWA and FTA regulations, “Environmental Impact and Related Procedures,” 23 C.F.R. part 771 and 49 C.F.R. part 622,

(d) Executive Order No. 11514, as amended, “Protection and Enhancement of Environmental Quality,” March 5, 1970, 42 U.S.C.

§ 4321 note, and

(e) Other federal environmental protection laws, regulations, and requirements applicable to the Recipient or the Award, the accompanying Underlying Agreement, and any Amendments thereto.

(2) Follow the federal guidance identified herein to the extent that the guidance is consistent with applicable authorizing legislation:

(a) Joint FHWA and FTA final guidance, “Interim Guidance on MAP-21 Section 1319 Accelerated Decision making in Environmental Reviews,” January 14, 2013,

(b) Joint FHWA and FTA final guidance, “SAFETEA-LU Environmental Review Process (Pub. L. 109-59),” 71 Fed. Reg. 66576, November 15, 2006, and

(c) Other federal environmental guidance applicable to the Recipient or the Award, the accompanying Underlying Agreement, and any Amendments thereto.

c. Environmental Justice. The Contractor agrees to promote environmental justice by following:

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(1) Executive Order No. 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” February 11, 1994, 42 U.S.C. § 4321 note, as well as facilitating compliance with that Executive Order,

(2) U.S. DOT Order 5610.2, “Department of Transportation Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” 62 Fed. Reg. 18377, April 15, 1997, and

(3) The most recent edition of FTA Circular 4703.1, “Environmental Justice Policy Guidance for Federal Transit Administration Recipients,” August 15, 2012, to the extent consistent with applicable federal laws, regulations, requirements, and guidance.

d. Other Environmental Federal Laws. The Contractor agrees to comply with all applicable federal laws, regulations, executive orders, and guidance, including, but not limited to, the Clean Air Act, Clean Water Act, Wild and Scenic Rivers Act of 1968, Coastal Zone Management Act of 1972, the Endangered Species Act of 1973, Magnuson Stevens Fishery Conservation and Management Act, Resource Conservation and Recovery Act, Comprehensive Environmental Response, Compensation, and Liability Act, and Executive Order Nos. 11988 and 13690 relating to “Floodplain Management.”

e. Use of Certain Public Lands. The Contractor with U.S. DOT laws, specifically 49

U.S.C. § 303 (often referred to as “section 4(f)), and joint FHWA and FTA regulations, “Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites,” 23 C.F.R. part 774, and referenced in 49 C.F.R. part 622.

f. Historic Preservation. The Contractor agrees to:

(1) Comply with U.S. DOT laws, including 49 U.S.C. § 303 (often referred to as “section 4(f)”), which requires certain findings be made before an Award involving the use of any land from a historic site that is on or eligible for inclusion on the National Register of Historic Places may be undertaken.

(2) Encourage compliance with the federal historic and archaeological preservation requirements of section 106 of the National Historic Preservation Act, as amended, 54 U.S.C. § 306108.

(3) Comply with the Archeological and Historic Preservation Act of 1974, as amended, 54 U.S.C. § 312501 et seq.

(4) Comply with U.S. Advisory Council on Historic Preservation regulations, “Protection of Historic Properties,” 36 C.F.R. part 800.

(5) Comply with federal requirements and follow federal guidance to avoid or mitigate adverse effects on historic properties.

g. Indian Sacred Sites. The Contractor agrees to facilitate compliance with federal efforts to promote the preservation of places and objects of religious importance to American Indians, Eskimos, Aleuts, and Native Hawaiians, and facilitate compliance with the American Indian Religious Freedom Act, 42 U.S.C. § 1996, RFP 24-012 Tires Appendix C Federal Terms and Conditions.docx Page 7 of and Executive Order No. 13007, “Indian Sacred Sites,” May 24, 1996, 42 U.S.C.

§ 3161 note.

h. Mitigation of Adverse Environmental Effects.

(1) The Contractor agrees that it will comply with all environmental mitigation measures that may be identified as conditions that the Federal Government might impose in finding of no significant impact or record of decision or commitments in the environmental documents that apply to the Award, such as environmental assessments, environmental impact statements, categorical exclusions, memoranda of agreement, documents required under 49 U.S.C. § 303, and other environmental documents.

(2) The Contractor agrees that:

(a) Any mitigation measures agreed on will be incorporated by reference and made part of the Underlying Agreement and any Amendments thereto,

(b) Any deferred mitigation measures will be incorporated by reference and made part of the Underlying Agreement and any Amendments thereto as soon as agreement with the Federal Government is reached, and

(c) Any mitigation measures agreed on will not be modified or withdrawn without the written approval of the Federal Government.

i. Clean Air & Water Pollution Control Act

The Contractor agrees:

(1) It will not use any violating facilities;

(2) It will report the use of facilities placed on or likely to be placed on the U.S.

EPA “List of Violating Facilities;”

(3) It will report violations of use of prohibited facilities to FTA; and

(4) It will comply with the inspection and other requirements of the Clean Air

Act, as amended, (42 U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as amended, (33 U.S.C. §§ 1251-1387).

The Contractor agrees to include substantially similar provisions in its contracts with subcontractors.

LOBBYING RESTRICTIONS

49 C.F.R. Part 20

Applicable to: Contracts exceeding $100,000.

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

RFP 24-012 Tires Appendix C Federal Terms and Conditions.docx Page 8 of 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 WTA, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-Federal funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient.

ACCESS TO RECORDS AND REPORTS

49 U.S.C. § 5325

Former 49 C.F.R. § 18.36 (i) 49 C.F.R. § 633.17

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 FTA Recipient or a subgrantee/subrecipient of SAMTD in accordance with 49 C.F.R. § 18.36(i), the Contractor agrees to provide SAMTD, the FTA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions. Contractor also agrees, pursuant to 49 C.F.R. § 633.17 to provide the FTA 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. When applicable, SAMTD or a subgrantee/subrecipient of the SAMTD 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 SAMTD, the Secretary of Transportation, and the Comptroller General or any authorized officer or employee of any of them for the purposes of conducting an audit and inspection.

(If applicable).

3. 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.

4. The Contractor agrees to maintain all books, records, accounts, and reports required under this contract for a period of not less than seven years after the date of termination or expiration of this contract, except in the event of litigation or settlement

RFP 24-012 Tires Appendix C Federal Terms and Conditions.docx Page 9 of of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until SAMTD, the FTA 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 C.F.R. § 18.39(i)(11).

5. The Contractor agrees to comply with, and assures the compliance of its employees with, the information restrictions and other applicable requirements of the Privacy Act of 1974, 5 U.S.C. § 552a. Among other things, the Contractor agrees to obtain the express consent of the Federal Government before the Contractor or its employees operate a system of records on behalf of the Federal Government. The Contractor understands that the requirements of the Privacy Act, including the civil and criminal penalties for violation of that Act, apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may result in termination of the underlying contract.

CHANGES TO FEDERAL REQUIREMENTS

Former 49 C.F.R. Part 18

Applicable to: All contracts.

Applies to: Contractors and subcontractors.

Contractor shall at all times comply with all applicable FTA regulations, policies, procedures, and directives, including without limitation those listed directly or by reference in the Master Agreement (FTA MA (28) dated February 9, 2021) between SAMTD 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. The Contractor agrees to include a substantially similar provision in its contracts with subcontractors.

RECOVERED MATERIALS & SOLID WASTE

42 U.S.C. § 6962

40 C.F.R. Part 247

Applicable to: All contracts for items designated by the EPA on contracts for materials, supplies, construction and/or operations management,, 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.

The Contractor agrees to provide a preference for those products and services that conserve natural resources, protect the environment, and are energy efficient by complying with and facilitating compliance with Section 6002 of the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 6962, and U.S.

Environmental Protection Agency (U.S. EPA), “Comprehensive Procurement Guideline for Products Containing Recovered Materials,” 40 C.F.R. part 247.

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NO GOVERNMENT OBLIGATION TO THIRD PARTIES

Applies to: All parties to the contract to which the Federal Government does not have contractual liability, absent specific written consent.

1. SAMTD 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.

2. The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions.

PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR

RELATED ACTS

31 U.S.C. §§ 3801–3812

49 C.F.R. Part 31 18 U.S.C. § 1001

1. The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. §§ 3801–3812 and U.S. DOT regulations “Program Fraud Civil Remedies,” 49 C.F.R. part 31, apply to its actions pertaining to this contract. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate.

2. The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C.§ 5307, the Government reserves the right to impose the penalties of 18

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U.S.C. § 1001 on the Contractor, to the extent the Federal Government deems appropriate.

3. The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions.

TERMINATION

FTA Circular 4220.1F

Applicable to: All contracts in excess of $10,000.

Applies to: All contractors and subcontractors.

The Contractor acknowledges and agrees to the following, and agrees to include a substantially similar provision in its contracts with subcontractors:

1. Termination for Convenience (General Provision): SAMTD may terminate this contract, in whole or in part, at any time by written notice to the Contractor when it is in the Government's best interest. The Contractor shall be paid its costs, including contract close-out costs, and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to SAMTD to be paid the Contractor. If the Contractor has any property in its possession belonging to SAMTD, the Contractor will account for the same, and dispose of it in the manner SAMTD directs.

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, SAMTD 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 SAMTD 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, SAMTD, 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.

3. Opportunity to Cure (General Provision): SAMTD in its sole discretion may, in the case of a termination for breach or default, allow the Contractor [an

RFP 24-012 Tires Appendix C Federal Terms and Conditions.docx Page 12 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 SAMTD's satisfaction the breach or default of any of the terms, covenants, or conditions of this Contract within [ten (10) days] after receipt by Contractor of written notice from SAMTD setting forth the nature of said breach or default, SAMTD 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 SAMTD from also pursuing all available remedies against Contractor and its sureties for said breach or default.

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

GOVERNMENT-WIDE DEBARMENT AND SUSPENSION

2 C.F.R. Part 180

2 C.F.R. Part 2100

Applicable to: All contracts and subcontracts in excess of $25,000.

Applies to: Contractors and subcontractors.

The Contractor shall comply and facilitate compliance with U.S. DOT regulations, “Nonprocurement Suspension and Debarment,” 2 C.F.R. part 1200, which adopts and supplements the U.S. Office of Management and Budget (U.S. OMB) “Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement),” 2 C.F.R. part 180. These provisions apply to each contract at any tier of $25,000 or more, and to each contract at any tier for a federally required audit (irrespective of the contract amount), and to each contract at any tier that must be approved by an FTA official irrespective of the contract amount. As such, the Contractor shall verify that its principals, affiliates, and subcontractors are eligible to participate in this federally funded contract and are not presently declared by any Federal department or agency to be:

1) Debarred from participation in any federally assisted Award;

2) Suspended from participation in any federally assisted Award;

3) Proposed for debarment from participation in any federally assisted Award;

4) Declared ineligible to participate in any federally assisted Award;

5) Voluntarily excluded from participation in any federally assisted Award; or

6) Disqualified from participation in ay federally assisted Award.

It will include similar provisions in its contracts with Subcontractors and include Subcontractors to include similar provisions in their contracts with lower-tier Subcontractors; and

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By signing and submitting its bid or proposal, the bidder or proposer certifies as follows:

The certification in this clause is a material representation of fact relied upon by SAMTD. If it is later determined that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available SAMTD, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 2 C.F.R. part 180, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.

CIVIL RIGHTS REQUIREMENTS

42 U.S.C. § 2000

42 U.S.C. § 6102, 42 U.S.C. § 12101 et seq.

49 U.S.C. § 5332

29 C.F.R. Part 1630, 41 C.F.R. Parts 60 et seq.

28 C.F.R. § 50.3

The Contractor agrees to the following, and also agrees to include these provisions in its contracts with subcontractors:

Civil Rights Requirements. The Contractor agrees that it must comply with applicable federal civil rights laws, regulations, requirements, and guidance, and follow applicable federal guidance, except as the Federal Government determines otherwise in writing.

Therefore, unless a Recipient or a federal program, including the Tribal Transit Program or the Indian Tribe Recipient, is specifically exempted from a civil rights statute, FTA requires compliance with that civil rights statute, including compliance with equity in service.

Nondiscrimination in Federal Public Transportation Programs. The Contractor agrees that it will:

1. Prohibit discrimination based on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, disability, or age.

2. Prohibit the:

a. Exclusion from participation in employment or a business opportunity for reasons identified in 49 U.S.C. § 5332,

b. Denial of program benefits in employment or a business opportunity identified in 49 U.S.C. § 5332, or

c. Discrimination, including discrimination in employment or a business opportunity identified in 49 U.S.C. § 5332.

3. Follow:

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a. The most recent edition of FTA Circular 4702.1, “Title VI Requirements and Guidelines for Federal Transit Administration Recipients,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance, and other applicable federal guidance that may be issued, but

b. FTA does not require an Indian Tribe to comply with FTA program-specific guidelines for Title VI when administering its Underlying Agreement supported with federal assistance under the Tribal Transit Program.

Nondiscrimination – Title VI of the Civil Rights Act. The Contractor agrees that it will:

1. Prohibit discrimination based on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, disability, or age,

2. Comply with:

a. Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq.,

b. U.S. DOT regulations, “Nondiscrimination in Federally-Assisted Programs of the

Department of Transportation – Effectuation of Title VI of the Civil Rights Act of 1964,” 49 C.F.R. part 21, and

c. Federal transit law, specifically 49 U.S.C. § 5332, and

3. Follow:

a. The most recent edition of FTA Circular 4702.1, “Title VI Requirements and Guidelines for Federal Transit Administration Recipients,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance,

b. U.S. DOJ, “Guidelines for the enforcement of Title VI, Civil Rights Act of 1964,” 28 C.F.R. § 50.3, and

c. All other applicable federal guidance that may be issued.

Equal Employment Opportunity.

1. Federal Requirements and Guidance. The Contractor agrees that it will prohibit discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin, and:

a. Comply with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §

2000e et seq.,

b. Facilitate compliance with Executive Order No. 11246, “Equal Employment

Opportunity” September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it in part and is applicable to federal assistance programs,

c. Comply with federal transit law, specifically 49 U.S.C. § 5332

d. FTA Circular 4704.1, “Equal Employment Opportunity Program Guidelines for

Grant Recipients,” July 26, 1988, and

e. Follow other federal guidance pertaining to Equal Employment Opportunity laws, regulations, and requirements, and prohibitions against discrimination on the basis of disability,

2. Specifics. The Contractor Agrees that it will:

a. Prohibited Discrimination. As provided by Executive Order No. 11246, as amended by any later Executive Order that amends or supersedes it, and as

RFP 24-012 Tires Appendix C Federal Terms and Conditions.docx Page 15 specified by U.S. Department of Labor regulations, ensure that applicants for employment are employed and employees are treated during employment without discrimination on the basis of their race, color, religion, national origin, disability, age, sexual orientation, gender identity, or status as a parent,

b. Affirmative Action. Take affirmative action that includes, but is not limited to:

i. Recruitment advertising, recruitment, and employment,

ii. Rates of pay and other forms of compensation,

iii. Selection for training, including apprenticeship, and upgrading, and

iv. Transfers, demotions, layoffs, and terminations, but

c. Indian Tribe. Recognize that Title VII of the Civil Rights Act of 1964, as amended, exempts Indian Tribes under the definition of “Employer,” and

BREACHES AND DISPUTE RESOLUTION

FTA Circular 4220.1F

Applicable to: All contracts in excess of $100,000.

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 SAMTD’s General Manager. 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 General Manager. 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 General Manager shall be binding upon the Contractor and the Contractor shall abide be the decision.

1. Performance During Dispute - Unless otherwise directed by SAMTD, Contractor shall continue performance under this Contract while matters in dispute are being resolved.

2. 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.

3. Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes, and other matters in question between SAMTD 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 SAMTD is located.

4. Rights and Remedies - The duties and obligations imposed by the Contract

Documents and the rights and remedies available thereunder shall be in addition to

RFP 24-012 Tires Appendix C Federal Terms and Conditions.docx Page 16 and not a limitation of any duties, obligations, rights, and remedies otherwise imposed or available by law. No action or failure to act by SAMTD, 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.

EMPLOYEE PROTECTIVE AGREEMENTS

49 U.S.C. § 5310, § 5311, and § 5333 29 C.F.R. Part 215

Applicable to: All contracts as applicable.

Applies to: Contractors and subcontractors

Non-Construction Service or Labor Contracts

Contractor will comply with all federal laws, regulations, and requirements providing wage and hour protections for nonconstruction employees, including Section 102 of the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. § 3702, and other relevant parts of that Act, 40 U.S.C. § 3701, et seq., and U.S. DOL regulations, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act),” 29 CFR Part 5.

Contractor will comply with the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. to the extent that the FLSA applies to employees performing work with federal assistance provided through the Underlying Agreement involving commerce, and as the Federal Government otherwise determines applicable.

DISADVANTAGED BUSINESS ENTERPRISE (DBE)

49 C.F.R. Part 26

Section 1101(b) of the FAST Act

Applicable to: All contracts.

Applies to: Contractors and subcontractors

This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The national goal for DBE participation is 10%. SAMTD’s overall goal for DBE participation is 2.49%. A separate contract goal has not been established for this procurement.

A DBE must be certified by the Certification Office for Business Inclusion and Diversity.

https://oregon4biz.diversitysoftware.com/. DBE firms shall have equal opportunity to compete for and perform as prime contractors, suppliers, or as subcontractors through

RFP 24-012 Tires Appendix C Federal Terms and Conditions.docx Page 17 another awarded contractor.

A. DBE and Small Business Enterprise (SBE) outreach and use is required for this contract. Proposers are required to make good faith efforts in recruiting DBE’s and SBE’s in the preparation of their bids Examples of good faith efforts to be demonstrated and documented by the prime contractor include the following:

1. Attendance at any pre-solicitation or pre-bid meetings that were scheduled by

SAMTD to inform DBEs of contracting and subcontracting opportunities

2. Advertisement in general circulation, trade association and minority-focused media concerning the sub-contracting opportunities

3. Provision of written notice to a reasonable number of specific DBEs that their interest in the contract was being solicited, in sufficient time to allow the DBE to participate effectively (and documenting the contact)

4. Follow-up of initial solicitations of interest by contacting DBEs to determine with certainty whether the DBEs were interested

5. Provision to interested DBEs of adequate information about the plans, specifications and requirements of the contract (and maintaining record of such contract)

6. Negotiation in good faith with interested DBEs not rejecting DBEs as unqualified without sound reasons based on a thorough investigation of their capabilities (and be able to document any “unqualified”)

7. Soliciting the aid of available minority community organizations; minority contractors’ groups, local, state and federal minority business assistance officers;

and other organizations that provide assistance in the recruitment and placement of DBEs (and be able to furnish records of such solicitation)

8. Efforts to select portions of the work proposed to be performed to increase the likelihood of DBE Participation

9. Efforts to negotiate for specific sub Proposals, including at a minimum:

a. The name, address, or telephone number of each DBE contacted;

b. A description of the information provided regarding the plans and specifications for the portions of the work to be performed;

c. A statement of why additional agreements were not reached;

d. Reasons for rejecting as unqualified any DBE contacted

10. Use of the Oregon Department of Consumer & Business Services Certified DBE Directory

11. Efforts to provide assistance in obtaining any necessary bonding or insurance;

12. Efforts to use the service of banks owned and controlled by minorities or women;

13. Efforts to assist the DBE in purchasing materials and supplies; and

14. Any other affirmative action efforts

Contractor Requirements

A. Reporting Requirements: The Contractor will be required to report its DBE participation obtained through race-neutral means throughout the period of contract performance. This report will include, the business name and address, amount of the sub-contract, amount and date of payments.

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Proposers are required to document all good faith efforts at utilizing DBE’s and SBE’s (Outreach & Participation Schedule). Good faith efforts will be maintained and available upon request. A separate DBE Unavailability Certification is required for each DBE contractor contacted but unable to participate in the project.

Proposers will submit, with their proposal, a Determination of Good Faith Effort. Failure to include the determination will be cause for proposal rejection.

A Statement of Intent is required from all DBE’s that will be subcontracted work on this contract

The successful contractor will be required to submit a Prompt Payment Certification (provided to awarded contractor) and supporting documentation with each Progress Payment. Cherriots DBELO reserves the right to interview subcontractors to verify the information submitted on the Certification.

B. Prompt Payment: The prime contractor agrees to pay each subcontractor, if applicable, under this prime contract for the satisfactory performance of its contract no later than ten (10) days from the receipt of each payment the prime contractor receives from SAMTD. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of WTA. This clause applies to both DBE and non- DBE sub-contractors. With each Request for Payment, Contractor will submit A Prompt Payment Certification as a condition of payment.

C. Retainage: The prime contractor agrees to return retainage payments to each subcontractor within sixty (60) days after the subcontractor’s work is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of SAMTD.

This clause applies to both DBE and non-DBE subcontracts.

D. Monitoring and Enforcement: The prime contractor shall notify SAMTD’S DBELO in writing of any delay or postponement of payment beyond thirty (30) days and such written notification shall set forth, with appropriate documentation, the full details of the reasons upon which the prime contractor is basing its actions.

SAMTD shall not be obligated to make a progress payment or final payment to a prime contractor who has failed to make payments promptly to its subcontractors, and for which WTA has made payment, without good cause. The remedies SAMTD has available to enforce the DBE requirements contained in its contracts include, but are not limited to, the following:

1. Breach of contract action pursuant to the terms of the contract. The intent of proceeding will be to initiate corrective action on the part of the contractor. If the corrective action is not implemented, the contractor will be terminated in accordance with the terms of the contract.

2. Inform the Oregon Department of Transportation and FTA of any false, RFP 24-012 Tires Appendix C Federal Terms and Conditions.docx Page 19 fraudulent, or dishonest conduct regard the DBE Program. Beyond the power of SAMTD within the contract terms, the Federal government has available the following mechanisms that apply to firms participating in the DBE program:

a. Suspension or debarment proceedings pursuant to 49 CFR Part 26.

b. Enforcement action pursuant to 49 CFR Part 31.

The Contractor will promptly notify SAMTD’S DBELO whenever a subcontractor performing work related to this contract is terminated or fails to complete its work. The contractor must make good faith efforts to engage another DBE subcontractor to perform at least the same amount of work. The contractor may not terminate any DBE subcontractor and perform that work through its own forces or those of an affiliate without prior written consent of SAMTD.

INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS

FTA Circular 4220.1F

Applies to: Contractors and Subcontractors

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 4220.1F, 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 SAMTD requests which would cause SAMTD to be in violation of the FTA terms and conditions. The Contractor agrees to include a substantially similar provision in its contracts with subcontractors.

AMERICANS WITH DISABILITIES ACT (ADA)

Applies to: Contractors and subcontractors.

The Contractor agrees to comply with all applicable requirements of the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; 49 C.F.R. part 27;

and any implementing requirements FTA may issue. These regulations provide that no handicapped individual, solely by reason of his or her handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity included in or resulting from this Agreement.

In accordance with Section 102 of the Americans with Disabilities Act, as amended, RFP 24-012 Tires Appendix C Federal Terms and Conditions.docx Page 20

42 U.S.C. § 12112 and Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, the Contractor agrees that it will comply with the requirements of U.S.

Department of Transportation regulations, “Transportation Services for Individuals with Disabilities (ADA),” 49 C.F.R. part 37; and U.S. Department of Transportation regulations, “Americans with Disabilities Accessibility Specifications for Transportation Vehicles,” 36 C.F.R. part 1192 and 49 C.F.R. part 38, pertaining to facilities and equipment to be used in public transportation. In addition, the Contractor agrees to comply with the requirements of 49 U.S.C. § 5301 (b)(6), which expresses the Federal policy that the elderly and persons with disabilities have the same right as other persons to use mass transportation services and facilities, and that special efforts shall be made in planning and designing those services and facilities to implement transportation accessibility rights for elderly persons and persons with disabilities. Contractor also agrees to comply with any implementing requirements FTA may issue.

In addition to the above, the Contractor agrees to comply with the following federal prohibitions against discrimination on the basis of disability:

1. Federal laws, including:

a. The Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., which requires that buildings and public accommodations be accessible to individuals with disabilities,

b. Federal transit law, specifically 49 U.S.C. § 5332, which now includes disability as a prohibited basis for discrimination, and

c. Other applicable federal laws, regulations and requirements pertaining to access for seniors or individuals with disabilities.

2. Federal regulations, including:

a. U.S. DOT regulations, “Transportation for Individuals with Disabilities:

Passenger Vessels,” 49 C.F.R. part 39,

b. U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability in

State and Local Government Services,” 28 C.F.R. part 35,

c. U.S. DOJ regulations, “Nondiscrimination on the Basis of Disability by

Public Accommodations and in Commercial Facilities,” 28 C.F.R. part 36,

d. U.S. EEOC, “Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act,” 29 C.F.R. part 1630,

e. U.S. Federal Communications Commission regulations, “Telecommunications Relay Services and Related Customer Premises Equipment for Persons with Disabilities,” 47 C.F.R. part 64, subpart F,

f. U.S. ATBCB regulations, “Electronic and Information Technology Accessibility Standards,” 36 C.F.R. part 1194, and

g. FTA regulations, “Transportation for Elderly and Handicapped Persons,” 49 C.F.R. part 609, and

h. Other applicable federal civil rights and nondiscrimination guidance.

Contractor understands that it is required to include this article in all subcontracts.

Failure by the Contractor to carry out these requirements is a material breach of this Contract, which may result in the termination of this Contract or such other remedy as

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PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO

SURVEILLANCE SERVICES OR EQUIPMENT

2 C.F.R. § 200.216

SAMTD is prohibited from obligating or expending loan or grant funds to procure, obtain, enter into a new contract, or extend or renew a contract for equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115-232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).

(1) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital…