Federal Required Contract Clauses -v.3.pdf

FEDERAL TRANSIT ADMINISTRATION (FTA)

CONTRACT CLAUSES

(excluding micro-purchases (currently $10,000 or less), except

Davis-Bacon requirements apply to contracts exceeding $2,000)

For any conditions imposed upon a “contractor” or “subcontractor”, it shall be the prime

Contractor’s responsibility to notify and impose applicable requirements upon any such contractor or subcontractor. Notwithstanding the foregoing, other requirements applicable to the recipient of an FTA Award may also apply to a contractor or subcontractor, or any other third party, for which the recipient and the Contractor shall also be responsible for imposing any such condition.

Any use of “recipient” or “purchaser” or “grantee” or “County” in this document shall mean the

County of Orange as the recipient of an FTA Award. Such terms are interchangeable and may be used contemporaneously.

Any use of “agreement”, “underlying agreement” or “contract” shall mean an agreement through which the County awards Federal assistance to a contractor to support or stimulate any of the

County’s or contractor’s projects or related activities supported under the FTA Award.

Any use of “Third Party”, “Third-Party Participant”, or variations thereof, shall mean a grant recipient, sub-awardee and contractor(s), subcontractor(s), or suppliers, thereof whose work under the associated agreement is supported with FTA funding, eligible non-Federal share dedicated to the Project, or is dedicated as an in-kind contribution eligible for as a non-Federal share. Such terms are interchangeable and may be used contemporaneously.

Any use of “Applicability - All contracts” shall mean that the Federal requirement referenced therein applies to all types of Federally assisted contracts excluding micro-purchases (currently

$10,000 or less) except Davis-Bacon Act which applies to construction contracts exceeding

$2,000.

Fly America Requirements - 49 U.S.C. § 40118; 41 CFR Part 301-10; 48 CFR Part 47.4

Applicability – all contracts involving transportation of persons or property, by air between a place in the United States and a place outside of the United States, or between places outside the

United States, when the FTA will participate in the cost of such air transportation.

The Contractor shall comply with 49 USC 40118 (the “Fly America” Act) in accordance with

General Services Administration regulations 41 CFR 301-10, stating that recipients and subrecipients of Federal funds and their contractors are required to use US Flag air carriers for US

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 or memorandum adequately explaining why service by a US 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 shall include the requirements of this section in all subcontracts that may involve international air transportation.

Buy America Requirements - 49 U.S.C. 5323(j); 49 CFR Part 661. Applicability – Construction

Contracts and Acquisition of Goods or Rolling Stock (valued at more than $150,000, including the value of any amendments thereto. The threshold for applicability is statutorily fixed in 49 USC

5323(j)(13) and is not tied to the simplified acquisition threshold.

The Contractor shall comply with 49 USC 5323(j) and 49 CFR 661, stating that Federal funds may not be obligated unless steel, iron, and manufactured products used in FTA-funded projects are produced in the United States, unless a waiver has been granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 CFR 661.7, and include software, microcomputer equipment and small purchases (currently less than $150,000) made with capital, operating, or planning funds. Separate requirements for rolling stock are stated at 5323(j)(2)(C) and 49 CFR 661.11. Rolling stock must be manufactured in the US and have a minimum have a greater than 70 percent domestic content for FY2020 and beyond. A bidder or offeror shall submit appropriate Buy America certification to the FTA recipient with all bids on FTA-funded contracts, except those subject to a general waiver. Proposals not accompanied by a completed Buy America certification shall be rejected as nonresponsive. This requirement does not apply to lower-tier subcontractors.

Build America, Buy America Act - Public Law 117-58, Division G, Title IX, §§ 70911-70927; 2

CFR Part 184. Applicability – all iron, steel, manufactured products, and construction materials used in infrastructure projects.

Construction materials used in the Project are subject to the domestic preference requirement of the Build America, Buy America Act, Pub. L. 117-58, div. G, tit. IX, §§ 70911 – 70927 (2021), as implemented by the U.S. Office of Management and Budget, the U.S. Department of

Transportation, and FTA. The Contractor acknowledges that this agreement is neither a waiver of

§ 70914(a) nor a finding under § 70914(b).

Charter Bus Requirements - 49 U.S.C. 5323(d); 49 CFR Part 604. Applicability – contracts for operating public transportation service/Operational Service Contracts.

a. The Contractor shall comply with 49 U.S.C. 5323(d), (g), and (r), and 49 CFR part 604, which provides that recipients and subrecipients of FTA assistance are prohibited from providing charter service using Federally-funded equipment or facilities if there is at least one private charter operator willing and able to provide the service, except as permitted under: (1) Federal transit laws, specifically 49 U.S.C. § 5323(d); (2) FTA regulations, “Charter Service,” 49 CFR part 604; (3) any other Federal Charter Service regulations; or (4) Federal guidance, except as FTA determines otherwise in writing.

b. If the Contractor engages in a pattern of violations of FTA’s Charter Service regulations, then FTA may require corrective measures or impose remedies on it. These corrective measures and remedies may include: (1) barring it or any subcontractor operating public transportation under its Award that has provided prohibited charter service from receiving Federal assistance from FTA;

(2) withholding an amount of Federal assistance as provided by Appendix D to part 604 of FTA’s

Charter Service regulations; or (3) any other appropriate remedy that may apply.

c. Contractor should also include the substance of this clause in each subcontract that may involve operating public transit services.

School Bus Requirements - 49 U.S.C. 5323(f); 49 CFR Part 605. Applicability – contracts for operating public transportation service/Operational Service Contracts.

Contractor shall comply with 49 USC 5323(f) or (g) and 49 CFR 605, and not engage in school bus operations using Federally-funded equipment or facilities in competition with private operators https://www.federalregister.gov/documents/2023/08/23/2023-17724/guidance-for-grants-and-agreements https://www.federalregister.gov/documents/2023/08/23/2023-17724/guidance-for-grants-and-agreements of school buses, except as permitted under: (A) Federal transit laws, specifically 49 U.S.C. §

5323(f); (B) FTA regulations, “School Bus Operations,” 49 CFR part 605; (C) any other Federal

School Bus regulations; or (D) Federal guidance, except as FTA determines otherwise in writing.

If Contractor violates these school bus requirements, then FTA may bar Contractor from receiving

Federal assistance for public transportation or require Contractor to take such remedial measures as FTA considers appropriate. When operating exclusive school bus service under an allowable exemption, Contractor may not use Federally-funded equipment, vehicles, or facilities. Contractor should include the substance of this clause in each subcontract or purchase under this Contract that may operate public transportation services.

Cargo Preference - 46 U.S.C. 55305; 46 CFR Part 381. Use of United States-Flag Vessels.

Applicability – Contracts involving equipment, materials or commodities which may be transported by ocean vessels.

The Contractor shall:

a. use privately owned US-Flag commercial vessels to ship at least 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 US flag commercial vessels;

b. furnish within 20 working days following the loading date of shipments originating within the US or within 30 working days following the loading date of shipments originating outside the

US, a legible copy of a rated, "on-board" commercial bill-of-lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market

Development, Maritime Administration, Washington, DC 20590 and to the recipient (through contractor in the case of a subcontractor's bill-of-lading.)

c. include these requirements in all subcontracts issued pursuant to this contract when the subcontract involves the transport of equipment, material, or commodities by ocean vessel.

Seismic Safety - 49 CFR 41. Applicability – Construction of new buildings or additions to existing buildings, Professional Services/A&E for new buildings and additions.

The Contractor agrees that any new building or addition to an existing building shall be designed and constructed in accordance with the standards required in USDOT Seismic Safety Regulations

49 CFR 41 and shall certify compliance to the extent required by the regulation. The Contractor shall also ensure that all work performed under this contract, including work performed by subcontractors, complies with the standards required by 49 CFR 41 and the certification of compliance issued on the project.

Energy Conservation - 42 U.S.C. 6321 et seq.;49 CFR Part 622 subpart C. Applicability – All

Contracts.

The Contractor shall comply with mandatory standards and policies relating to energy efficiency, stated in the state energy conservation plan issued in compliance with the Energy Policy &

Conservation Act.

Clean Water - 33 U.S.C. 1251 – 1387; 2 CFR Part 200, Appendix II (G). Applicability – All

Contracts and Subcontracts over $150,000.

The Contractor shall comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 USC 1251 et seq. The Contractor shall report each violation to the recipient and understands and agrees that the recipient shall, in turn, report each violation as required to FTA and the appropriate EPA Regional Office. Contractor shall include these requirements in each subcontract exceeding $150,000 financed in whole or in part with FTA assistance.

Clean Air - 42 U.S.C. 7401 – 7671q; 2 CFR Part 200, Appendix II (G). Applicability – All contracts over $150,000.

The Contractor shall comply with all applicable standards, orders or regulations pursuant to the

Clean Air Act, as amended, 42 USC 7401 et seq. Contractor shall report each violation to the

County and understands and agrees that the County will, in turn, report each violation as required to

FTA and the appropriate EPA Regional Office. Contractor shall include these requirements in each subcontract exceeding $150,000 financed in whole or in part with FTA assistance.

Safe Operation of Motor Vehicles - 23 U.S.C. part 402; Executive Order No. 13043; Executive

Order No. 13513; U.S. DOT Order No. 3902.10. Applicability – All contracts.

a. Seat Belt Use. The Contractor agrees to implement Executive Order No. 13043, “Increasing Seat Belt Use in the United States,” April 16, 1997, 23 U.S.C. § 402 note, (62 Fed. Reg.

19217), by adopting and promoting on-the-job seat belt use policies and programs for its employees and other personnel that operate company-owned vehicles, company- rented vehicles, or personally operated vehicles. The terms “company-owned” and “company-leased” refer to vehicles owned or leased either by the Contractor or the County.

b. Distracted Driving, Including Text Messaging While Driving. The Contractor agrees:

(1) to adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers, including policies to ban text messaging while using an electronic device supplied by an employer, and driving a vehicle the driver owns or rents, a vehicle the Contractor owns, leases, or rents, or a privately-owned vehicle when on official business in connection with the work performed under this agreement.

(2) to conduct workplace safety initiatives in a manner commensurate with its size, such as establishing new rules and programs to prohibit text messaging while driving, re-evaluating the existing programs to prohibit text messaging while driving, and providing education, awareness, and other outreach to employees about the safety risks associated with texting while driving.

c. Extension of Provision. The Contractor shall insert the immediately preceding provisions of sections (a) and (b) (1) – (2) in each third-party sub-agreement that exceeds the micro -purchase threshold at each tier supported with Federal assistance.

Bus Testing - 49 CFR Part 665, 49 USC 5318. Applicability –contracts for the purchase/lease of any bus model that is new or has any major change in configuration/components to be acquired/leased.

The Contractor [manufacturer] shall comply with the Bus Testing requirements under 49 USC

5318 (e) and FTA's implementing regulation at 49 CFR 665 to ensure that the requisite testing is performed for all new bus models or any bus model with a major change in configuration or components, and that the bus model has achieved a passing score. Upon completion of testing, Contractor shall obtain a copy of the bus testing reports from the operator of the testing facility and make that report(s) publicly available prior to final acceptance of the first vehicle by the grantee/County.

Pre-Award & Post-Delivery Audit Requirements - 49 USC 5323(m); 49 CFR 663. Applicability

- contracts for the purchase of Rolling Stock. (Note: pre-award and post-award Buy America certification applies to procurement of steel, iron, manufactured products and construction materials exceeding $150,000).

The Contractor shall comply with 49 USC 5323(m) and FTA's implementing regulation 49 CFR

663. The Contractor shall comply with Buy America certification(s) submitted with its offer. The

Contractor shall participate and cooperate in any pre-award and post-delivery audits performed pursuant to 49 CFR Part 663 and related FTA guidance.

1. An audit under 49 CFR 663 is limited to verifying compliance with:

a. Applicable Buy America requirements (section 165 of the Surface Transportation

Assistance Act of 1982, as amended); and

b. Solicitation specification requirements of the recipient – Contractor shall submit evidence that it will be capable of meeting bid specifications.

2. An audit under this part includes, where appropriate, a copy of a manufacturer's self-certification information that the vehicle complies with Federal Motor Vehicle Safety Standards or a certification that such standards are inapplicable.

3. An audit conducted under this part is separate from the single annual audit requirement established by Office of Management and Budget Circular A–128, “Audits of State and Local

Governments,” dated May 16, 1985.

Pre-award and post-award required certifications include:

1. A Buy America certifications as described in 49 CFR § 663.25 and § 663.35;

2. A purchaser's requirements certifications as described in 49 CFR § 663.27 and § 663.37; and

3. Where appropriate, a manufacturer's Federal Motor Vehicle Safety certification information as described in 49 CFR § 663.41 or § 663.43.

Lobbying - 31 U.S.C. 1352; 2 CFR § 200.450; 2 CFR Part 200 appendix II (J); 49 CFR Part 20.

Applicability - Contracts for construction, architectural and engineering, acquisition of rolling stock, professional service contract, operational service contract, and turnkey contracts in excess of $100,000. These requirements do not apply to contracts and subcontracts under $100,000.

Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR Part 20, "New

Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used

Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of

Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name https://www.ecfr.gov/current/title-49/part-663/section-663.25 https://www.ecfr.gov/current/title-49/part-663/section-663.35 https://www.ecfr.gov/current/title-49/part-663/section-663.27 https://www.ecfr.gov/current/title-49/part-663/section-663.27 https://www.ecfr.gov/current/title-49/section-663.41 https://www.ecfr.gov/current/title-49/part-663/section-663.43 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/County.

Trafficking in Persons - Section 106(g) of the Trafficking Victims Protection Act of 2000

(TVPA), as amended, 22 U.S.C. § 7104(g); 2 CFR Part 175; 48 CFR 52.222-50.

The Contractor and its subcontractors or their employees shall not: (A) engage in severe forms of trafficking in persons during the contract term; (B) procure a commercial sex act during the contract term; or (C) use forced labor in the performance of the contract. The Contractor shall inform the County immediately of any information the Contractor receives from any source alleging a violation of a prohibition in this section. County may terminate this contract for any violation of this section; such right of termination is in addition to all other remedies for noncompliance that are available to the County.

(1) Legal Authorities. The Contractor agrees to comply and assures compliance of each subcontractor with Federal requirements and guidance, including:

a. Section 106(g) of the Trafficking Victims Protection Act of 2000 (TVPA), as amended, 22 U.S.C. § 7104(g); and

b. The terms of this section “Trafficking in Person”, which have been derived from

U.S. OMB regulatory guidance, “Award Term for Trafficking in Persons,” 2 CFR Part 175, per

U.S. OMB’s direction.

(2) Definitions. The Contractor agrees that for purposes of this section:

a. Employee means either an individual who is employed by the Contractor or a

Subcontractor, and is participating in a Project or related activities as set forth in the Underlying

Agreement, or another person who is participating in a Project or related activities as set forth in the

Underlying Agreement and is not compensated by the Contractor, including, but not limited to, a volunteer, or an individual whose services are contributed by the Contractor or Third Party

Participant as an in-kind contribution toward the cost sharing requirements of the Contractor’s

Underlying Agreement.

b. Forced labor means labor obtained by recruitment, harboring, transportation, provision, or other means of obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

c. Private entity means any entity other than a state, local government, Indian tribe, or foreign public entity, as those terms are defined in 2 C.F.R. § 175.25, and includes a for-profit organization, or a nonprofit organization, including any nonprofit organization of higher education, hospital, or tribal organization other than one included in the definition of Indian Tribe at 2 C.F.R. § 175.25(b).

d. Severe forms of trafficking in persons has the meaning given at section 103 of the TVPA, as amended, 22 U.S.C. § 7102.

e. Commercial sex act has the meaning given at section 103 of the TVPA, as amended, 22 U.S.C. § 7102.

f. Coercion has the meaning given at section 103 of the TVPA, as amended, 22

U.S.C. § 7102.

(3) Provisions Applicable to All Recipients and Contractors . The Contractor agrees to and assures that it, and any Subcontractor, will:

a. Provide Information. Inform FTA and County immediately of any information it receives from any source alleging a violation of the prohibitions listed in this section, and

b. Sub-agreement Provision. Certify and include the following provision in any sub-agreement it enters with a private entity as defined above in section (2)(c) of this section:

Contractor, or subcontractor/subrecipient, agrees that it and its employees that participate in the

Underlying Agreement, may not:

- Engage in severe forms of trafficking in persons during the period that the

Contractor’s or Subcontractor’s Underlying Agreement is in effect,

- Procure a commercial sex act during the period that the Contractor’s or

Subcontractor’s Underlying Agreement is in effect, or

- Use forced labor in the performance of the Contractor’s or

Subcontractor’s Underlying Agreement or sub-agreements thereunder.

(4) Provisions Applicable to a Private Entity Recipient. If the Contractor is a private entity, it agrees that:

a. Prohibitions. It, its employees, its Subcontractors, and its Subcontractors’ employees that participate in the Underlying Agreement will not:

- Engage in severe forms of trafficking in persons during the period that the Contractor’s or Subcontractor’s Underlying Agreement is in effect,

- Procure a commercial sex act during the period that the Contractor’s or Subcontractor’s

Underlying Agreement is in effect, or

- Use forced labor in the performance of the Contractor’s or Subcontractor’s Underlying

Agreement or sub-agreements.

(5) Termination of Federal Assistance. Section 106(g) of the TVPA, as amended, 22 U.S.C. § 7104(g), and U.S. OMB regulatory guidance, “Award Term for Trafficking in Persons,” 2 C.F.R. part 175, provide FTA and the County, through receipt of Federal funds, the right to unilaterally terminate the Underlying Agreement for a violation of that Act without penalty to the Federal Government or the County, if FTA or the County determines that the private entity

Contractor or its Subcontractor has violated a prohibition described above in section (4)(a) of this

Section, or has an employee whose conduct is determined to have violated a prohibition described above in section (4)(a) of this Section because that employee’s conduct is either:

- Associated with the performance of the Contractor’s Underlying

Agreement, or

- Imputed to the Contractor or Subcontractor using the standards of due process for conduct of an individual to an organization provided in:

• U.S. DOT regulations, “Nonprocurement Suspension and Debarment,” 2 C.F.R. part 1200, or

• U.S. OMB regulatory guidance, “Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement),” 2 C.F.R. part 180.

(6) Provisions Applicable to a Contractor That is Not a Private Entity. A Contractor that is not a private entity agrees that section 106(g) of the TVPA, as amended, 22 U.S.C.§7104(g), and

U.S. OMB regulatory guidance, “Award Term for Trafficking in Persons,” 2 C.F.R. part 175, provides FTA, and consequently the County, the right to unilaterally terminate the Underlying

Agreement, without penalty to the Federal Government or the County, for a violation of that Act if FTA, or the County, determines that:

(a) A private entity that is the Contractor or Subcontractor is determined to have engaged in severe forms of trafficking in persons during the period that the Contractor’s or

Subcontractor’s Underlying Agreement is in effect; procured a commercial sex act during the period that the Contractor’s or Subcontractor’s Underlying Agreement is in effect; or used forced labor in the performance of the Contractor’s or Subcontractor’s Underlying Agreement or sub-agreements thereunder; or

(b) An employee of a private entity that is the Contractor or Subcontractor has engaged in severe forms of trafficking in persons during the period of time that the Contractor’s or Subcontractor’s Underlying Agreement is in effect; procured a commercial sex act during the period of time that the Contractor’s or Subcontractor’s Underlying Agreement is in effect; or used forced labor in the performance of the Contractor’s or Subcontractor’s Underlying Agreement or sub- agreements thereunder, and whose conduct described above is associated with the performance of the Contractor’s or Subcontractor’s Underlying Agreement; or is imputed to the

Subcontractor using the standards for due process to impute the conduct of an individual to an organization as provided in U.S. OMB regulatory guidance, “Guidelines to Agencies on

Governmentwide Debarment and Suspension (Nonprocurement),” 2 C.F.R. part 180, and U.S.

DOT regulations, “Nonprocurement Suspension and Debarment,” 2 C.F.R. part 1200.

(7) Remedies Other Than Termination of Federal Assistance. The Contractor agrees that

FTA’s right to terminate Federal assistance as provided in the TVPA and in sections (4)(b) and (5) are in addition to all other remedies for noncompliance available to the County and Federal

Government under the associated grant agreement.

Access to Records and Reports– 49 U.S.C. 5325; 49 CFR 633.17; 2 CFR 200.333. Applicability

– all contracts.

1. Where the Purchaser is not a State but a local government and is an FTA recipient or a sub-grantee of FTA recipient in accordance with 49 CFR 18.36(i), Contractor shall provide the

Purchaser, the FTA, the US Comptroller General or their authorized representatives access to any books, documents, papers and contractor records which are pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Contractor shall also, pursuant to 49 CFR 633.17, provide authorized FTA representatives, including any PMO contractor, access to Contractor's records and construction sites pertaining to a capital project, defined at 49 USC 5302(a)1, which is receiving FTA assistance through the programs described at 49 USC 5307, 5309 or 5311.

2. Where the Purchaser is a State and is an FTA recipient or a sub-grantee of FTA recipient in accordance with 49 CFR 633.17, Contractor shall provide the Purchaser, authorized FTA representatives, including any PMO contractor, access to Contractor's records and construction sites pertaining to a capital project, defined at 49 USC 5302(a)1, which receives FTA assistance through the programs described at 49 USC 5307, 5309 or 5311. By definition, a capital project excludes contracts of less than the simplified acquisition threshold currently set at $250,000.

3. Where the Purchaser enters into a negotiated contract for other than a small purchase or under the simplified acquisition threshold and is an institution of higher education, a hospital or other non-profit organization and is an FTA recipient or a sub-grantee of FTA recipient in accordance with 49 CFR 19.48, Contractor shall provide the Purchaser, the FTA, the US

Comptroller General or their authorized representatives, access to any books, documents, papers and record of the contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions.

4. Where the Purchaser which is the FTA recipient, subrecipient, or a sub-grantee of an FTA recipient, and in accordance with 49 USC 5325(a) enters into a contract for a capital project or improvement (defined at 49 USC 5302(a)(1)) through other than competitive bidding, Contractor shall make available records related to the contract to the Purchaser, the Secretary of USDOT and the US Comptroller General or any authorized officer or employee of any of them for the purposes of conducting an audit and inspection.

5. The Contractor shall permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.

6. The Contractor shall maintain all books, records, accounts and reports required under this contract for a period of not less than three (3) years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the recipient, FTA

Administrator, US Comptroller General, or any of their authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto, as provided by 49 CFR

18.39(i)(11).

FTA does not require the inclusion of these requirements in subcontracts.

Federal Changes - 49 CFR Part 18; 2 CFR 200. Applicability – All contracts.

The Contractor shall comply with all applicable FTA regulations, policies, procedures, and directives, including without limitation those listed directly or by reference in the Master

Agreement between the County and FTA, as they may be amended or promulgated from time to time during the term of the contract, to the extent that such are publicly available. The Contractor's failure to comply shall constitute a material breach of the contract.

Bonding Requirements – Applicability – The Common Grant Rules require bonds for all construction or facility improvement contracts and subcontracts exceeding the simplified acquisition threshold (currently set at $250,000). See FTA Circular C 4220.1F for specific bonding requirements.

Bonds are required for all construction or facility improvement contracts and subcontracts exceeding the simplified acquisition threshold. FTA may accept the bonding policy and requirements of the County if FTA has determined that the Federal interest is adequately protected.

If such a determination has not been made, the following minimum requirements apply:

a. A bid guarantee from each bidder equivalent to five (5) percent of the bid price. The "bid guarantees" shall consist of a firm commitment such as a bid bond, certifies check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of his bid, execute such contractual documents as may be required within the time specified.

b. A performance bond on the part to the Contractor for 100 percent of the contract price. A

"performance bond" is one executed in connection with a contract to secure fulfillment of all the

Contractor's obligations under such contract.

c. A payment bond on the part of the contractor for 100 percent of the contract price. A

"payment bond" is one executed in connection with a contract to assure payment, as required by law, of all persons supplying labor and material in the execution of the work provided for in the contract. Payment bond amounts required from Contractors are as follows:

(1) 50% of the contract price if the contract price is not more than $1 million;

(2) 40% of the contract price if the contract price is more than $1 million but not more than $5 million; or

(3) $2.5 million if the contract price is more than $5 million.

d. A cash deposit, certified check or other negotiable instrument may be accepted by the

County in lieu of performance and payment bonds, provided the County has established a procedure to assure that the interest of FTA is adequately protected. An irrevocable letter of credit would also satisfy the requirement for a bond.

Bid Bond Requirements (Construction)

(a) Bid Security - A Bid Bond must be issued by a fully qualified surety company acceptable to County and listed as a company currently authorized under 31 CFR, Part 223 as possessing a

Certificate of Authority as described thereunder.

(b) Rights Reserved - In submitting this Bid, it is understood and agreed by bidder that the right is reserved by County to reject any and all bids, or part of any bid, and it is agreed that the Bid may not be withdrawn for a period of [ninety (90)] days subsequent to the opening of bids, without the written consent of County.

It is also understood and agreed that if the undersigned bidder should withdraw any part or all of his bid within [ninety (90)] days after the bid opening without the written consent of County, shall refuse or be unable to enter into this Contract, as provided above, or refuse or be unable to furnish adequate and acceptable Performance Bonds and Labor and Material Payments Bonds, as provided above, or refuse or be unable to furnish adequate and acceptable insurance, as provided above, he shall forfeit his bid security to the extent of County’s damages occasioned by such withdrawal, or refusal, or inability to enter into an agreement, or provide adequate security therefor.

It is further understood and agreed that to the extent the defaulting bidder's Bid Bond, Certified

Check, Cashier's Check, Treasurer's Check, and/or Official Bank Check (excluding any income generated thereby which has been retained by County as provided in [Item x "Bid Security" of the

Instructions to Bidders]) shall prove inadequate to fully recompense County for the damages occasioned by default, then the undersigned bidder agrees to indemnify County and pay over to

County the difference between the bid security and County’s total damages, so as to make County whole.

The undersigned understands that any material alteration of any of the above or any of the material contained on this form, other than that requested, will render the bid unresponsive.

Performance and Payment Bonding Requirements (Construction)

The Contractor shall be required to obtain performance and payment bonds as follows:

(a) Performance bonds

1. The penal amount of performance bonds shall be 100 percent of the original contract price, unless the County determines that a lesser amount would be adequate for the protection of the County.

2. The County may require additional performance bond protection when a contract price is increased. The increase in protection shall generally equal 100 percent of the increase in contract price. The County may secure additional protection by directing the Contractor to increase the penal amount of the existing bond or to obtain an additional bond.

(b) Payment bonds

1. The penal amount of the payment bonds shall equal:

(i) Fifty percent of the contract price if the contract price is not more than $1 million.

(ii) Forty percent of the contract price if the contract price is more than $1 million but not more than $5 million; or

(iii) Two and one half million if the contract price is more than $5 million.

2. If the original contract price is $5 million or less, the County may require additional protection as required by subparagraph 1 if the contract price is increased.

Performance and Payment Bonding Requirements (Non-Construction)

The Contractor may be required to obtain performance and payment bonds when necessary to protect the (Recipient's) interest.

(a) The following situations may warrant a performance bond:

1. County property or funds are to be provided to the Contractor for use in performing the contract or as partial compensation (as in retention of salvaged material).

2. A Contractor sells assets to or merges with another concern, and the County, after recognizing the latter concern as the successor in interest, desires assurance that it is financially capable.

3. Substantial progress payments are made before delivery of end items starts.

4. Contracts are for dismantling, demolition, or removal of improvements.

(b) When it is determined that a performance bond is required, the Contractor shall be required to obtain performance bonds as follows:

1. The penal amount of performance bonds shall be 100 percent of the original contract price, unless the County determines that a lesser amount would be adequate for the protection of the County.

2. The County may require additional performance bond protection when a contract price is increased. The increase in protection shall generally equal 100 percent of the increase in contract price. The County may secure additional protection by directing the Contractor to increase the penal amount of the existing bond or to obtain an additional bond.

(c) A payment bond is required only when a performance bond is required, and if the use of payment bond is in the County’s interest.

(d) When it is determined that a payment bond is required, the Contractor shall be required to obtain payment bonds as follows:

1. The penal amount of payment bonds shall equal:

(i) Fifty percent of the contract price if the contract price is not more than $1 million;

(ii) Forty percent of the contract price if the contract price is more than $1 million but not more than $5 million; or

(iii) Two and one half million if the contract price is increased.

Advance Payment Bonding Requirements

The Contractor may be required to obtain an advance payment bond if the contract contains an advance payment provision and a performance bond is not furnished. The County shall determine the amount of the advance payment bond necessary to protect the County.

Patent Infringement Bonding Requirements (Patent Indemnity)

The Contractor may be required to obtain a patent indemnity bond if a performance bond is not furnished and the financial responsibility of the Contractor is unknown or doubtful. The County shall determine the amount of the patent indemnity to protect the County.

Warranty of the Work and Maintenance Bonds

1. The Contractor warrants to County, the Architect and/or Engineer that all materials and equipment furnished under this Contract will be of highest quality and new unless otherwise specified by County, free from faults and defects and in conformance with the Contract

Documents. All work not so conforming to these standards shall be considered defective. If required by the [Project Manager], the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment.

2. The Work furnished must be of first quality and the workmanship must be the best obtainable in the various trades. The Work must be of safe, substantial and durable construction in all respects. The Contractor hereby guarantees the Work against defective materials or faulty workmanship for a minimum period of one (1) year after Final Payment by County and shall replace or repair any defective materials or equipment or faulty workmanship during the period of the guarantee at no cost to County. As additional security for these guarantees, the Contractor shall, prior to the release of Final Payment [as provided below], furnish separate Maintenance (or

Guarantee) Bonds in form acceptable to County written by the same corporate surety that provides the Performance Bond and Labor and Material Payment Bond for this Contract. These bonds shall secure the Contractor's obligation to replace or repair defective materials and faulty workmanship for a minimum period of one (1) year after Final Payment and shall be written in an amount equal to ONE HUNDRED PERCENT (100%) of the CONTRACT SUM, as adjusted (if at all).

Recycled Products (Solid Wastes) – 42 U.S.C. 6962; 40 CFR Part 247; 2 CFR Part 200.322;

Executive Order 12873. Applicability – All contracts for items designated by the EPA, when the purchaser or contractor procures $10,000 or more of one of these items during the current or previous fiscal year using Federal funds. See 40 Part 247 for Federal designation of items.

The Contractor agrees to comply with all the requirements of Section 6002 of the Solid Waste

Disposal Act, as amended (42 U.S.C. 6962) by the Resource Conservation and Recovery Act

(RCRA), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive

Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR

Part 247.

Contractor shall 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 CFR Part 247. The requirements of Section 6002 include: (A) procuring only items designated in guidelines of the

U.S. EPA at 40 C.F.R. Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; (B) procuring solid waste management services in a manner that maximizes energy and resource recovery; and (C) establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

Davis-Bacon and Copeland Anti-Kickback Acts - 49 U.S.C. § 5333(a); 40 U.S.C. §§ 3141-

3144, and 3146-3148 as supplemented by DOL regulations at 29 CFR Part 5 and 29 CFR Part 3.

Applicability – All construction contracts and subcontracts, including actual construction, alteration and/or repair, including decorating and painting, over $2,000.

a. For all prime construction, alteration or repair contracts in excess of $2,000 awarded by

FTA, Contractor shall comply with the Davis-Bacon Act and the Copeland “Anti-Kickback” Act.

Under 49 U.S.C. § 5333(a), prevailing wage protections apply to laborers and mechanics employed on FTA assisted construction, alteration, or repair projects. Contractor will comply with the Davis-

Bacon Act, 40 U.S.C. §§ 3141-3144, and 3146-3148 as supplemented by DOL regulations at 29

CFR part 5, “Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction.” In accordance with the statute, Contractor shall pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor.

b. In addition, Contractor shall pay wages not less than once a week. Contractor shall also comply with the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by DOL regulations at 29 CFR part 3, “Contractors and Subcontractors on Public Building or Public Work

Financed in Whole or in part by Loans or Grants from the United States.” Contractor is prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled.

(1) Minimum wages –

(i) All laborers and mechanics employed or working upon the site of the work (or under the

United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part

3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the

Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section;

also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29

CFR Part 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein:

Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classifications and wage rates conformed under paragraph (1)(ii) of this section) and the Davis-

Bacon poster (WH-1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.

(ii) Responsibilities:

(A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:

(i) Except with respect to helpers as defined as 29 CFR 5.2(n)(4), the work to be performed by the classification requested is not performed by a classification in the wage determination; and

(ii) The classification is utilized in the area by the construction industry; and

(iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination; and

(iv) With respect to helpers as defined in 29 CFR 5.2(n)(4), such a classification prevails in the area in which the work is performed.

(B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the

Administrator of the Wage and Hour Division, Employment Standards Administration, U.S.

Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.

(C) In the event the Contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The

Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period

(D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (1)(ii) (B) or (C) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.

(iv) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.

(v) If the Contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside, in a separate account, assets for the meeting of obligations under the plan or program.

(vi) (A) The contracting officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefor only when the following criteria have been met:

(1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and

(2) The classification is utilized in the area by the construction industry; and

(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.

(B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the

Administrator of the…