Appendix A_D.docx.pdf

Salem Area Mass Transit District

Appendix A GENERAL TERMS AND CONDITIONS

In addition to the terms and conditions outlined the contract #26-006 SAMTD includes Appendix A (General Terms and Conditions) and Appendix B (Federal Terms and Conditions)- part of the final agreement between the selected parties. In the event of any conflict between the documents, the more restrictive term will prevail.

GC.1 Consultant's Status and General Responsibilities

Consultant is an independent Consultant for all purposes and is entitled to no compensation from SAMTD other than that provided by this Contract. Consultant shall inform SAMTD of Consultant's Federal Internal Revenue Service Employer Identification Number or, if Consultant is an individual with no employer identification number, Consultant's Social Security Number. The Consultant and its officers, employees, and agents are not in any way officers, employees or agents of SAMTD as those terms are used in ORS 30.265. The Consultant, its employees or officers shall not hold themselves out either explicitly or implicitly as officers, employees or agents of SAMTD for any purpose whatsoever, nor are they authorized to do so.

Consultant shall provide and pay for all labor, materials, equipment, utilities, and other goods or services necessary for full contract performance unless this Contract specifically provides otherwise. Consultant shall supervise and direct contract performance using its best skill, and shall be responsible for selecting the means of contract performance. If, during or after the term of this Contract, Consultant learns of any actual or potential defect in the services provided under this Contract, of any problem associated with the results of contract performance, or of any nonconformance with a provision of this Contract or of Federal, state, or local law, Consultant shall inform SAMTD immediately in writing with a full description of the defect, problem, or nonconformance.

GC.2 Notices and Communications

All notices and other communications concerning this Contract shall be written in English and shall bear the contract number assigned by SAMTD. Notices and other communications may be delivered personally, by facsimile, by email, by regular, certified or registered mail or other commercial delivery service.

A notice to SAMTD will be effective only if it is delivered to that person designated in writing in either (a) the Notice of Award of this Contract, (b) the Notice to Proceed under this Contract, or (c) to another individual specifically designated for this purpose by this Contract. A notice to the Consultant shall be effective if it is delivered to the individual who signed this Contract on behalf of Consultant at the address shown with that signature, to a corporate officer if Consultant is a corporation, to a general partner if Consultant is a partnership, or to another individual designated in writing by the Consultant in the contract or in a written notice to SAMTD.

GC.3 Assignment and Subcontracting

Consultant shall not assign any of its rights or subcontract any of its responsibilities under this Contract without the prior written consent of SAMTD. Consultant shall include in each subcontract provisions necessary to make all of the provisions of this Contract fully effective and applicable to Consultant’s subconsultants. Consultant shall provide all necessary plans, specifications, and instructions to its suppliers and subconsultants to enable them to properly perform their work.

The Consultant shall perform at least 25 percent (25%) of the work with their own organization. All subconsultants must be pre-approved by SAMTD before they begin work through an introduction to SAMTD PA and PMO staff. SAMTD reserves the right to investigate sub-Consultant responsibility prior to confirming award, if subconsultants are known. SAMTD will not approve change orders to the bid or final contract price for replacing rejected sub-Consultants.

Consultant shall be jointly and severally, and vicariously liable to SAMTD and responsible for the work of, including, but not limited to the adequacy, timeliness, efficiency, and sufficiency, its subconsultants. All subconsultants shall be jointly and severally liable to SAMTD and responsible for their work. SAMTD shall not be held responsible for the contractual relationship between subconsultants and Prime Consultants. The Prime Consultant shall maintain and monitor all subconsultant performance, payment, project delivery requirements, and relationships as they pertain to the Prime’s ability to successfully complete a project. Failure of a Consultant to properly manage subconsultants resulting in project delays shall be considered breach of contract and subject to the rights and remedies outlined in the contract terms and conditions.

GC.4 Indemnification

A. To the fullest extent permitted by law, Consultant agrees to fully indemnify, hold harmless, and defend SAMTD, its directors, officers, and employees from and against all claims, demands, losses, suits, damages, attorney fees, and costs of every kind and description and expenses incidental to the investigation and defense thereof, resulting from, any act, omission, fault or negligence of Consultant, its agents, Consultants, sub-Consultants, or employees in the performance or nonperformance of Consultant’s obligations under this Contract. Should any incident be due to the joint and or concurrent negligence of the Consultant and SAMTD, all cost items identified above will be borne by the Consultant and SAMTD in proportion to their respective negligence.

The obligations of Consultant under this Section 4 will not in any way be affected or limited by the absence in any case of insurance coverage or by the failure or refusal of any insurance carrier to perform any obligation on its part to be performed under insurance policies affecting this Contract. In no way shall the Consultant limit its liability under this Contract.

B. This indemnity shall survive the termination of this Contract or final payment hereunder. This indemnity is in addition to any other rights or remedies which SAMTD and the other parties to be indemnified may have under the law or under this Contract. In the event of any claim or demand made against any party which is entitled to be indemnified hereunder, SAMTD may in its sole discretion reserve, retain or apply any monies due to the Consultant under the Contract for the purpose of resolving such claims; provided, however, that SAMTD may release such funds if the Consultant provides SAMTD with adequate assurance of the protection of SAMTD’S interests.

SAMTD shall be the sole judge of whether such assurances are adequate.

GC.5 Prompt Payment

Consultant shall make payment promptly, as due, to all persons supplying to the Consultant labor or material for the performance of the work provided for in the Contract; pay contributions or amounts due the Industrial Accident Fund from the Consultant or subconsultant incurred in the performance of the Contract; and pay to the Department of Revenue all sums withheld from employees under ORS 316.167. ORS 279B.220.

Consultant shall promptly, as due, make payment to any person, co-partnership, association or corporation furnishing medical, surgical and hospital care services or other needed care and attention, incident to sickness or injury, to the employees of the Consultant, of all sums that the Consultant agrees to pay for the services and all moneys and sums that the Consultant collected or deducted from the wages of employees under any law, contract or agreement for the purpose of providing or paying for the services. ORS 279B.230

GC.6 Compliance with Laws and Regulations

Consultant shall adhere to all applicable federal, state, and local laws, regulations, executive orders and ordinances applicable to the work under this Contract. The Consultant shall comply with the clauses required in every public contract entered into in the State of Oregon as set forth in ORS 279B.220, 279B.225, 279B.230, 279B.235, 279C.505, 279C.510, 279C.515, 279C.520, and 279C.530, each of which is incorporated herein by reference.

All subject employers working under this Contract are either employers that will comply with ORS 656.017 or employers that are exempt under ORS 656.126.

GC.7 Liens Prohibited

Consultant shall not permit any lien or claim to be filed or prosecuted against SAMTD, its property or its right-of-way on account of any labor or material furnished or any other reason for work arising out of this Contract. If any lien shall be filed, Consultant shall satisfy and discharge or cause such lien to be satisfied and discharged immediately at Consultant’s sole expense.

GC.8 Safety

Notwithstanding any safety provisions elsewhere in this Contract, and in addition to Consultant’s own safety procedures, Consultant shall implement and enforce all safety requirements that are standard in the industry and/or that are required by SAMTD’S Safety Department.

GC.9 Prohibited Interests

A. No SAMTD Board member, officer, employee or agent who ceases to hold a position at SAMTD shall have any direct beneficial financial interest in this Contract, if they authorized this Contract while acting in their official position at SAMTD, for two years after the date the contract was authorized. This precludes working on this Contract as Consultant’s employee. The term “authorize” in this provision means that the Board member, officer, employee or agent (“public official”) performed a significant role in the selection of the Consultant or the execution of this Contract, including recommending approval or signing of the Contract, serving on the selection committee or having the final authorizing authority for this Contract.

B. No SAMTD Board member, officer, employee, or agent (or any member of the immediate family or the partner of any of the aforementioned) shall solicit or accept, and Consultant (including any subconsultants) shall offer or give to any SAMTD Board member, officer, employee or agent (or any member of the immediate family or the partner of any of the aforementioned), any gratuities, favors, or anything of monetary value, in connection with the administration of this Contract, except to the extent permitted by applicable law and SAMTD policy.

GC.10 Integration, Modification, and Administrative Changes

This Contract includes the entire agreement of the parties and supersedes any prior discussions or agreements regarding the same subject. This Contract may be modified in writing by a modification that has been signed by individuals authorized to bind each of the parties contractually. SAMTD reserves the right to make administrative changes to the Contract unilaterally. An administrative change means a written contract change that does not affect the substantive rights of the parties.

GC.11 Severability/Survivability

If any of the provisions contained in this Agreement are held by a court of law or arbitrator to be illegal, invalid or unenforceable, the enforceability of the remaining provisions shall not be impaired, and the parties shall negotiate an equitable adjustment of this Contract so that the purposes of this Contract are not affected. All provisions concerning indemnity survive the termination or expiration of this Contract for any cause.

GC.12 Waiver and Non-waiver

A. A waiver by one party of a right to a remedy for breach of this Contract by the other party shall not be deemed to waive the right to a remedy for a subsequent breach by the other party. SAMTD’S acceptance of goods or services, or payment under this Contract, shall not preclude SAMTD from recovering against Consultant or Consultant's surety for damages due to Consultant's failure to comply with this Contract.

B. Both parties having had the opportunity to consult an attorney regarding the provisions of this Contract, the parties agree to waive the principle of contract interpretation that an ambiguity will be construed against the party that drafted the ambiguous provision.

GC.15 Inspection of Goods and Services A. SAMTD has the right to inspect and test all goods/services called for under the Contract, to the extent practicable, at all times and places during the term of the Contract. SAMTD shall perform inspections and tests in a manner that will not unduly delay the work.

B. If any of the goods or services do not conform with contract requirements, SAMTD may require the Consultant to replace the goods or perform the services again in conformity with contract requirements, at no increase in contract amount. When the defects in goods or services cannot be corrected by re-performance, SAMTD may (1) require the Consultant to take necessary action to ensure that future performance conforms to contract requirements and (2) reduce the contract price to reflect the reduced value of the goods/services performed.

C. If the Consultant fails to promptly perform the services again or to take the necessary action to ensure future performance in conformity with contract requirements, SAMTD may (1) by contract or otherwise, perform the services and charge to the Consultant any cost incurred by SAMTD or (2) terminate the Contract for default.

GC.16 Acceptance, Rejection, and Revocation of Acceptance

If this Contract is for the supply of goods, then SAMTD shall be deemed to have accepted goods only after the goods have been delivered by Consultant, and SAMTD has had a reasonable opportunity after delivery to inspect the goods. Prior to acceptance, SAMTD may reject any goods that fail to conform to the requirements of this Contract. SAMTD may revoke its acceptance of goods that fail to conform to this Contract if the failure to conform was not reasonably discoverable by ordinary pre-acceptance inspection or evaluation. Acceptance may be revoked under this Paragraph even if SAMTD has started using the goods before discovering that they do not conform to the Contract. Upon request by SAMTD, Consultant shall replace or repair to SAMTD’S satisfaction any goods that have been rejected by SAMTD or the acceptance of which has been revoked by SAMTD under this Paragraph. Failure to replace or repair those goods within a reasonable time after SAMTD’S request shall be a material breach of this Contract.

GC.17 Title and Risk of Loss

If this Contract is for the supply of goods, Consultant shall bear the risk of loss until the goods have been delivered to the site designated by SAMTD and an authorized SAMTD employee or agent has taken possession of them. Title to goods shall pass to SAMTD upon SAMTD’S payment for those goods. If this Contract is for the rental or lease of Consultant’s goods, the Consultant shall bear the risk of loss to Consultant’s goods. The Consultant agrees to carry insurance to cover any such losses. Title to the Consultant’s goods shall remain with Consultant while goods are in SAMTD’S possession. If this Contract is for the repair or servicing of SAMTD owned goods, Consultant shall bear the risk of loss until the goods have been delivered to the site designated by SAMTD and an authorized SAMTD employee or agent has taken possession of them. Title to SAMTD owned goods shall remain with SAMTD while goods are in Consultant’s possession. Consultant agrees to carry insurance to cover any losses/damages to SAMTD’S goods while in Consultant’s possession.

GC.18 Work Product

All work product of Consultant that results from this Agreement (the “Work Product”) is the exclusive property of SAMTD. Work Product shall include but not be limited to all data, information in any form, documents, research, analysis and other any work subject to intellectual property laws and doctrines. SAMTD and Consultant intend that such Work Product be deemed “work for hire” of which SAMTD shall be deemed the author. If for any reason the Work Product is not deemed “work for hire,” Consultant hereby irrevocably assigns to SAMTD all of its right, title, and interest in and to any and all of the Work Product, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Consultant shall execute such further documents and instruments as SAMTD may reasonably request in order to fully document such vested rights in SAMTD. Consultant forever waives any and all rights relating to the Work Product, including without limitation, any and all rights arising under 17 USC Section 106A or any other rights of identification or authorship or rights of approval, restriction or limitation on use or subsequent modifications.

GC.20 Mediation

In addition to the Disputes Clause outlined in Appendix C - Federal Terms and Conditions. Should any dispute arise between the parties concerning this agreement that is not resolved by mutual agreement, it is agreed that it may by mutual agreement be submitted to mediated negotiation prior to any party commencing litigation. The mediator’s fees and costs shall be borne equally by the parties.

GC.21 Nondiscrimination During the term of this Contract, Consultant shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, age, sexual orientation, disability, or national origin.

GC.22 Applicable Law and Jurisdiction

This Contract shall be governed by the State of Oregon law, without resort to any jurisdiction's conflicts of law principles, rules or doctrines. Any suit or action arising from this Contract shall be commenced and prosecuted in the courts of Marion County, Oregon or the U.S. District Court for the District of Oregon, in Salem, Oregon, as applicable. The parties agree to submit to the jurisdiction and venue of these courts.

GC.23 Paragraph Headings and Other Titles

The parties agree that paragraph headings and other titles used in this Contract are for convenience only, and are not to be used to interpret this Contract.

GC.24 Insurance

GC.25 Insurance

During the term of this Contract, Consultant shall purchase and maintain any insurance required by this Contract. Consultant shall furnish acceptable certificates of insurance and additional insured endorsements to SAMTD within ten (10) days after award of this Contract, and prior to commencement of any contract work.

Consultant shall be responsible for the payment of all premiums and deductibles and shall indemnify SAMTD for any liability or damages that SAMTD may incur for any reason arising from this contract including Consultant's failure to purchase or maintain any required insurance.

A. Minimum Scope and Limit of Insurance

Consultant shall maintain coverage at least as broad as the insurance types and amounts described below.

1) Commercial General Liability Insurance

Consultant shall provide Commercial General Liability Insurance covering bodily injury and property damage in a form and with coverage that are satisfactory to SAMTD. This insurance must include personal and advertising injury liability, products and completed operations, contractual liability coverage for the indemnity provided under this Contract, and have no limitation of coverage to designated premises, project, or operation.

Coverage must be written using Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, with limits no less than $2,000,000 per occurrence and not less than $3,000,000 annual aggregate limit.

2) Business Auto Liability Insurance

Automobile bodily injury and property damage liability insurance, on ISO Form CA 00 01, covering all motor vehicles, whether owned, non-owned, leased, or hired, with a combined single limit of not less than $2,000,000.

Use of personal automobile liability insurance coverage may be acceptable if evidence that the policy includes a business use endorsement is provided.

3) Workers’ Compensation & Employer’s Liability Insurance

All employers, including Consultant, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017, and provide Workers’ Compensation Insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). Consultant shall require and ensure that each of its subconsultants complies with these requirements. If Consultant is a subject employer, as defined in ORS 656.023, Consultant shall also obtain Employers' Liability Insurance coverage with limits not less than $500,000 each accident.

If Consultant is an employer subject to any other state’s Workers’ Compensation law, Contactor shall provide Workers’ Compensation Insurance coverage for its employees as required by applicable Workers’ Compensation laws including Employers’ Liability Insurance coverage with limits not less than $500,000 and shall require and ensure that each of its out-of-state subconsultants complies with these requirements.

Consultants who are non-subject workers meeting one of the exceptions in ORS 656.027 may not be required to carry workers compensation insurance. Any Consultant requesting an exemption from the workers compensation coverage listed above must make that request in writing, stating the Consultant’s qualification for exemption under ORS 656.027 and shall maintain “if any” workers compensation insurance coverage.

B. Specialized Scope and Limits of Insurance

Other required insurance coverages may be required based on the type of services and product provided through this contract. If required, Consultant shall maintain coverage at least as broad as the insurance types and amounts described below.

1) Professional Liability Insurance

Consultant shall provide Professional Liability Insurance covering any damages caused by an error, omission or any negligent acts related to the services to be provided under this Contract by the Consultant and Consultant’s subconsultants, agents, officers or employees in an amount not less than $2,000,000 per claim and not less than $3,000,000 annual aggregate limit.

C. Other Insurance provision required under this Section:

1) Primary and Non-Contributory Coverage

For any claims related to this contract, the Consultant’s insurance coverage shall be primary and non-contributory and at least as broad as ISO CG 20 01 04 13 as respects SAMTD, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by SAMTD and its directors, officers, representatives, agents, volunteers and employees shall be excess of the Consultant’s insurance and shall not contribute with it. This requirement shall also apply to any Excess Liability policies. This must be noted on the insurance certificate.

Any damages arising out of a loss are the Consultant’s responsibility whether or not underlying insurance has sufficient limits. If the Consultant maintains broader coverage and/or higher limits than the minimums shown above, SAMTD shall be entitled to the broader coverage and/or the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to SAMTD.

2) Excess Policy

The Consultant may use Excess Insurance to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Excess Policies evidence all of the insurance coverages herein required, including, but not limited to, primary and non-contributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Excess insurance policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Consultant’s primary and excess liability policies are exhausted.

3) Waiver of Subrogation

Consultant hereby grants to SAMTD a waiver of any right to subrogation which any insurer of said Consultant may acquire against SAMTD by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not SAMTD has received a waiver of subrogation endorsement from the insurer.

4) Acceptability of Insurers

Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to SAMTD.

5) Special Risks or Circumstances

SAMTD reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

6) Certificate(s) and Proof of Insurance/Verification

Consultant shall provide to SAMTD Certificate(s) of Insurance at procurement@cherriots.org for all required insurance before delivering any goods and performing any services required under this contract. The Certificate(s) of Insurance must list SAMTD as a Certificate holder. The Certificate(s) of Insurance must also include all required endorsements or copies of the applicable policy language affecting coverage required by this Contract. If excess Insurance is used to meet the minimum insurance requirement, the Certificate(s) of Insurance must include a list of all policies that fall under the Excess Insurance. As proof of insurance, SAMTD has the right to request copies of insurance policies and endorsements relating to the insurance requirements under this contract for the purpose of coverage verification.

Failure of SAMTD to demand certificates of insurance, additional insured endorsements or other evidence of full compliance with these insurance requirements or failure of SAMTD to identify a deficiency from evidence that is provided shall not be construed as a waiver of Consultant’s obligation to maintain such insurance.

7) Notice of Cancellation/Change in Coverage

Each insurance policy required above shall state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits, non-renewed, or materially changed except after thirty (30) days’ prior written notice has been given to SAMTD, except that ten (10) days’ prior written notice shall apply in the event of cancellation for non-payment of premium. Prior written notice shall be sent to SAMTD pursuant to the Notices/Ship To provisions of this agreement.

8) Subconsultants mailto:procurement@cherriots.org

Consultant shall require and verify that all subconsultants maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that SAMTD is an additional insured on insurance required from subconsultants.

9) Additional Insured Status

All liability insurance, except for Workers’ Compensation, Professional Liability, Directors and Officers Liability and Network Security and Privacy Liability (if applicable), required under this Contract must include an Additional Insured endorsement specifying SAMTD and its directors, officers, representative, agents, volunteers and employees as Additional Insureds, but only with respect to Consultant’s goods to be delivered and Services to be performed under this Contract. Coverage shall be primary and non-contributory with any other insurance and self-insurance.

The Additional Insured endorsement with respect to liability arising out of Consultant’s ongoing operations must be on, or at least as broad as, ISO Form CG 20 10 and the Additional Insured endorsement with respect to completed operations must be on, or at least as broad as ISO form CG 20 37.

10) Failure to Maintain Insurance Coverage

If Consultant, for any reason, fails to maintain insurance coverage which is required pursuant to this contract, the same shall be deemed a material breach of contract. SAMTD, at its sole option, may terminate this contract and obtain damages from the Consultant resulting from said breach.

Alternatively, SAMTD may purchase such coverage (but has no special obligation to do so), and without further notice to Consultant, the SAMTD may deduct from sums due to Consultant any premium costs advanced by SAMTD for such insurance.

11) Special Risks or Circumstances

SAMTD reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

APPENDIX B - 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 include all supplier and subcontractor agreements.

Except as FTA determines otherwise in writing, the Contractor must comply with all applicable federal laws, regulations, and requirements, and should follow applicable federal guidance. FTA may take enforcement action if the 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 for the US Department of Transportation.

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. Contractors 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 provides 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.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.

BUY AMERICA PRE-AWARD AND POST-DELIVERY ROLLING STOCK AUDITS

49 U.S.C. § 5323(m)

Applicable to: All contracts for the purchase or lease of rolling stock.

Applies to: Contractors.

Part 663 of Title 49, Code of Federal Regulations, does not contain specific language to be included in third party contracts but does contain requirements applicable to subrecipients and third party contractors. Recipients are advised to use the model certificates and language contained in the audit handbook. Additionally, recipients can draw on the following language for inclusion in their federally funded procurements.

Pre-Award and Post-Delivery Audit Requirements The Contractor agrees to comply with 49 U.S.C. § 5323(m) and FTA's implementing regulation at 49 C.F.R. part 663. The Contractor shall comply with the Buy America certification(s) submitted with its proposal/bid. The Contractor agrees to participate and cooperate in any pre-award and post-delivery audits performed pursuant to 49 C.F.R.

part 663 and related FTA guidance.

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:

8. 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.

9. 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 (through the Contractor in the case of a subcontractor’s bill of lading.)

10.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.

SEISMIC SAFETY REQUIREMENTS

42 U.S.C. §§ 7701–7709

49 C.F.R. Part 41

Applicable to: All contracts for Architect and Engineering (A&E) services and construction of new buildings and additions to existing buildings.

Applies to: Contractors and subcontractors

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 (DOT) Seismic Safety Regulations 49 C.F.R. 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, including work performed 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

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.

ENVIRONMENTAL REQUIREMENTS

Applicable to: All contracts and subcontracts.

Applies to: Contractors and subcontractors.

6. 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.

7. 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:

a. Comply and facilitate compliance with federal laws, regulations, and requirements, including, but not limited to:

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

§ 139,

ii. 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,

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

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

§ 4321 note, and

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

b. Follow the federal guidance identified herein to the extent that the guidance is consistent with applicable authorizing legislation:

i. Joint FHWA and FTA final guidance, “Interim Guidance on MAP-21

Section 1319 Accelerated Decision making in Environmental Reviews,” January 14, 2013,

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

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

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

a. 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,

b. 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

c. 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.

9. 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.”

10.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.

11.Historic Preservation. The Contractor agrees to:

a. 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.

b. 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.

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

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

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

12.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, and Executive Order No. 13007, “Indian Sacred Sites,” May 24, 1996, 42 U.S.C.

§ 3161 note.

13.Mitigation of Adverse Environmental Effects.

a. 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.

b. The Contractor agrees that:

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

ii. 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

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

14.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 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

Applicable to: All contracts.

The following access to records requirements apply to this Contract:

7. 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.

8. 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).

9. 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.

10.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 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).

11.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

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 (31) dated May 2, 2024) 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 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.

CONTRACT WORK HOURS AND SAFETY STANDARDS ACT

40 U.S.C. §§3701-3708

29 C.F.R. part 1926

Applicable to: All contracts for operations and management, rolling stock and construction exceeding $100,000.

Applies to: Contractors and subcontractors.

The Contractor agrees to comply with the following, in accordance with the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 3701–3708) and U.S. Department of Labor regulations (29 C.F.R. part 5):

1. Overtime requirements - No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty (40) 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 (b)(1) of this section the contractor and any subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages.