Aroostook ties FRA Clauses.docm

Addendum A Federal Grant Compliance Requirements

Bidder (referred to here as “Vendor”) further agrees with Maine Department of Transportation (referred to in this Addendum as the “Department”) to comply with the following, to the extent applicable to Vendor. The parties agree that this Addendum A is not intended to enlarge or increase the applicability of any federal requirements to Vendor beyond those requirements that arise under federal laws and regulations of the United States Department of Transportation Federal Railroad Administration or Federal Railroad Administration (FRA) Agreements, as the same is amended from time to time by FRA.

Federal Compliance – Vendor shall at all times comply with all applicable FRA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Cooperative Agreement between the Department and FRA, as they may be amended or promulgated from time to time during the term of this contract. Vendor’s failure to so comply shall constitute a material breach of this contract.

Railroad Standards – Vendor agrees that this project will comply with all applicable FRA, American Railway Engineering and Maintenance-of-Way Association (AREMA), American Association of State Highway and Transportation Officials (AASHTO), and/or Association of American Railroads (AAR) standards, as applicable.

Debarment and Suspension and Drug-Free Workplace – If not already provided, Vendor will need to provide certifications on debarment and suspension for all third party Vendors and sub grantees and comply with all DOT regulations, “Non-procurement Suspension and Debarment” (2 CFR part 1200) and “Government-wide Requirements for Drug-Free Workplace (Grants),” (49 CFR part 32).

Program Fraud – Vendor recognizes that the requirements of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. §§ 3801 et seq., and U.S. DOT Regulations, “Program Fraud Civil Remedies,” 49 C.F.R. Part 31, apply to its actions hereunder. Accordingly, by signing the Agreement, Vendor certifies and affirms the truthfulness and accuracy of any statement it has made, it makes, or may make pertaining to the activities covered hereunder. In addition to other penalties that may be applicable, Vendor also acknowledges that if it makes false, fictitious or fraudulent claims, statements, submissions, assurances, or certifications, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986, as amended, on Vendor to the extent the Federal Government deems appropriate.

Vendor recognizes that if Vendor makes a false, fictitious, or fraudulent claim, statement, submission, certification, assurance, or representation to the Federal Government of includes a false, fictitious, or fraudulent statement or representation in any agreement with the Federal Government in connection with a project authorized under 49 U.S.C. chapter 53 or any other federal law, the Federal Government reserves the right to impose on Vendor the penalties of 49 U.S.C. § 5323(1), 18 U.S.C. § 1001 or other applicable federal law to the extent the Federal Government deems appropriate.

Resolution of Dispute, Breach or Other Litigation – FRA and the Department have a vested interest in the settlement of any dispute, default, breach, or litigation involving any federally-assisted third-party contract. Vendor agrees to pursue all legal rights available under any third-party subcontract. FRA and the Department reserve the right to concur in any compromise or settlement of any third-party subcontract claim involving Vendor. Vendor agrees to notify FRA and the Department of any current or prospective major dispute, breach, default, or litigation pertaining to any third-party subcontract. If Vendor seeks to name the Federal Government or the Department as a party to litigation for any reason, in any forum, Vendor agrees to inform the FRA and/or the Department, as applicable, before doing so. The Federal Government retains the right to a proportionate share, based on the percentage of the Federal share committed to the Project, of any proceeds derived from any third-party recovery. If the third-party subcontract at issue contains a liquidated damages provision, Vendor agrees to credit any liquidated damages recovery to the Project unless the Federal Government permits otherwise.

Environmental Protection – Vendor agrees that all facilities that will be used to perform work under an award shall not be so used unless the facilities are designed and equipped to limit water and air pollution in accordance with all applicable local, State and Federal standards.

Vendor agrees the work is in compliance with the following provisions, as modified from time to time: Section 114 of the Clear Air Act, 42 U.S.C. 7414, and Section 308 of the Federal Water Pollution Control Act, 33 U.S.C. 1318, and all regulations issued thereunder. The Vendor certifies that no facilities that will be used to perform work under this Agreement are listed on the List of Violating Facilities maintained by the Environmental Protection Agency (“EPA”). The Vendor will notify the Grantee as soon as it or any subVendor receives any communication from the EPA indicating that any facility which will be used to perform work pursuant to this Agreement is under consideration to be listed on the EPA’s List of Violating Facilities; provided, however, that the Vendor’s duty of notification hereunder shall extend only to those communications of which it is aware, or should reasonably have been aware. Vendor will include or cause to be included in each subcontract entered into, which subcontract exceeds Fifty Thousand Dollars ($50,000.00) in connection with work performed pursuant to this Agreement, the criteria and requirements of this section and an affirmative covenant requiring such subVendor to immediately inform Vendor and the Department upon the receipt of a communication from the EPA concerning the matters set forth herein.

No publicly-owned land from a park, recreational area, or wildlife or waterfowl refuge of national, state, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, state or local significance as so determined by such officials shall be used by the Vendor without the prior written concurrence of FRA.

Energy Conservation – To the extent applicable to the services to be performed by Vendor hereunder, Vendor shall comply with the mandatory energy efficiency standards and policies within the applicable state energy conservation plans issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 89 Stat. 871).

Disadvantaged Business Enterprise – The Department has adopted a Disadvantaged Business Enterprise and Women’s Business Enterprise Policy in accordance with Federal Regulations issued by U.S. DOT (49 C.F.R. Part 23). This Policy provides that Disadvantaged Business Enterprises (“DBEs”) and Women’s Business Enterprises (“WBEs”) will be afforded every practicable opportunity to participate in the performance of contracts related to the Department’s construction, procurement and professional service activities. Vendor agrees to take all necessary and reasonable affirmative steps required by U.S. DOT regulations to ensure that eligible DBEs and WBEs have the maximum feasible opportunity to participate in third-party subcontracts procured in connection with the Project.

Civil Rights –Vendor must comply with all civil rights laws and regulations, in accordance with applicable Federal directives, except to the extent that the FRA determines otherwise in writing. These include, but are not limited to, the following: (a) Title VI of the Civil Rights Act of 1964 (P.L. 88-352) (as implemented by 49 CFR part 21), which prohibits discrimination on the basis of ace, color or national origin; (b) Tile IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex, (c) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), which prohibits discrimination on the basis of handicaps; (d) the Age Discrimination Act of 1975, as amended (42 U.S.C. 1601-1607), which prohibits discrimination on the basis of age; (e) the Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; (f) the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91-616), as amended, relating the nondiscrimination on the basis of alcohol abuse or alcoholism; (g) 523 and 527 of the Public Health Service Act of 1912 (42 U.S.C. 290 dd-3 and 290 ee-3), as amended, relating to confidentiality of alcohol and drug abuse patient records; (h) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 36001 et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing, (i) 49 U.S.C. 306, which prohibits discrimination on the basis of race, color, national origin or sex in railroad financial assistance programs; (j) any other nondiscrimination provisions in the specific status(s) under which application for Federal assistance was made; and (k) the requirements of any other nondiscrimination statute(s) which may apply to the grant recipient. Vendors and sub Vendors must comply with all regulations, guidelines, and standards adopted under the above statutes.

ADA Access – To the extent applicable to the services to be performed by Vendor hereunder, Vendor agrees to comply with all applicable employment and accessibility requirements of Title II of the American with Disabilities Act (“ADA”), of 1990, as amended; Section 504 Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; and both statutes’ implementing regulations at 49 CFR parts 27, 37 and 38. DOT (through its delegate FRA) has responsibility to offer technical assistance for the provisions of the ADA about which it issues regulations. 42 U.S. C. 12206( c ) (1) reads: “Each Federal agency that has responsibility under paragraph (2) for implementing this chapter may render technical assistance to individuals and institutions that have rights or duties under the respective subchapters of this chapter for which such agency has responsibility.”

Equal Employment Opportunity – Vendor agrees to comply with Executive Order 11246 of September 24, 1965, entitled “Equal Employment Opportunity,” as amended by Executive Order 11375 of October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR chapter 60).

Buy America – Vendor must comply with the Buy America provisions set forth in 49 U.S.C. 24405(a) which specifically provide that the Secretary of Transportation may obligate only if the steel, iron, and manufactured goods used in the project are produced in the United States. The Secretary (or the Secretary’s delegate, the FRA Administrator) may waive this requirement if the Secretary finds that applying this requirement would be inconsistent with the public interest; the steel, iron, and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality; rolling stock or power train and equipment cannot be bought and delivered in the United Sates within a reasonable time; or including domestic material will increase the cost of the overall project by more than 25 percent. For purposes of implementing these requirements, in calculating the components’ costs, labor costs involved in final assembly shall not be included in the calculation. If the Secretary determines that is necessary to waive the application of the Buy America requirements, the Secretary is required before the date on which such finding takes effect to publish in the Federal Register a detailed written justification as to why the waiver is needed; and provide notice of such finding and an opportunity for public comment on such finding, for a reasonable period of time, not to exceed 15 days. The Secretary may not make a waiver for goods produced in a foreign country if the Secretary, in consultation with the United States Trade Representative, decides that the government of that foreign country has an agreement with the United States Government under which the Secretary has waived the requirement of this subsection, and the government of that foreign country has violated the agreement by discriminating against goods to which this subsection applies that are produced in the United States and to which the agreement applies. The Buy America requirements described in this section shall only apply to projects for which the costs exceed $100,000.

No Government Obligation to Third Parties – Vendor agrees that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of any underlying contract, absent the express written consent of the Federal Government, the Federal Government is not a party to such Agreement, and shall not be subject to any obligations or liabilities to Vendor or any Vendor or other parties in connection with the Agreement or the project.

Site Visits – The Department, FRA, U.S. DOT and the Comptroller General (and their representatives), have the right, at all reasonable times, to make site visits to review Project accomplishments and management control systems and to provide such technical assistance as may be required. If any site visit is made by FRA on the premises of the Vendor or sub-Vendor for this project, the Vendor shall provide and shall require its subVendors to provide, all reasonable facilities and assistance for the safety and convenience of FRA representatives in the performance of their duties. All site visits and evaluations shall be performed in such a manner as will not unduly delay work being conducted by the Vendor or subVendor.

Access to Records - Vendor agrees to provide access to the Department, the Federal Railroad Administration, the U.S. Department of Transportation and the Comptroller General of the United States (and their representatives) to any books, documents, papers, and records of the Vendor which are directly pertinent to that specific contract for the purposed of making audit, examination, excerpts, and transcriptions.

Flow Down Provisions – Vendor shall include provisions to carry out the purposes of this Agreement in all subcontracts with persons who perform any part of the work under this Agreement. There shall be provisions for a further flow down of such requirements to each sub-tier Vendor.