GENERAL_PROVISIONS.pdf

GENERAL PROVISIONS

1 REQUIRED FEDERAL CLAUSES

The Transit Authority of Lexington-Fayette Urban County Government (Lextran) is a recipient of federal funds and is mandated to follow specific guidelines in the procurement of goods and services. The following clauses shall be incorporated by reference into any contract that results from this solicitation.

Definitions used herein:

• The terms “respondent, bidder, proposer, and contractor” mean the offerer or vendor.

• The terms “the Authority” and “recipient” (as in recipient of FTA funds) mean the Transit Authority of Lexington-Fayette Urban County Government (Lextran).

• The term “USDOT” means the United States Department of Transportation.

• The term “FTA” means the Federal Transportation Administration.

2 NO GOVERNMENT OBLIGATION TO THIRD PARTIES

(1) Lextran and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to Lextran, Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract.

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

3 PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS

(1) The Contractor acknowledges that the provisions 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 pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate.

(2) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. chapter 53, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5323(l) on the Contractor, to the extent the Federal Government deems appropriate.

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

4 ACCESS TO RECORDS AND REPORTS

(1) Record Retention. The Contractor will retain, and will require its subcontractors of all tiers to retain, complete and readily accessible records related in whole or in part to the contract, including, but not limited to, data, documents, reports, statistics, sub-agreements, leases, subcontracts, arrangements, other third party agreements of any type, and supporting materials related to those records.

(2) Retention Period. The Contractor agrees to comply with the record retention requirements in accordance with C.F.R. § 200.333. 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 records shall be maintained until the disposition of all such litigation, appeals, claims, or exceptions related thereto.

(3) Access to Records. The Contractor agrees to provide sufficient access to the Federal Transit Administration (FTA), the U.S. Secretary of Transportation or the Secretary’s duly authorized representatives, the Comptroller General of the United States, the Comptroller General’s duly authorized representatives, and the duly authorized representatives of Lextran to inspect and audit records and information related to the performance of this Contract as reasonably may be required.

(4) Access to the Sites of Performance. The Contractor agrees to permit those individuals listed above access to the sites of performance under this Contract as reasonably may be required.

5 FEDERAL CHANGES

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 between Lextran and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor’s failure to so comply shall constitute a material breach of this contract.

6 CIVIL RIGHTS REQUIREMENTS

The following requirements apply to the underlying contract:

(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C.

§ 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue.

(2) Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract:

(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor”, 41 C.F.R. Parts 60 et seq., (which implement Executive Order No.

11246, “Equal Employment Opportunity”, as amended by Executive Order No. 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity”, 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.

(b) Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.

(c) Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, “Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act”, 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.

(3) The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties.

Within Fayette County the Fairness Ordinance (no. 201-99) applies. This ordinance adds sexual orientation/gender identity as a protected class against discrimination in housing, employment and public accommodations.

In addition, the Contractor agrees to comply with any implementing requirements or applicable regulations the local government may issue.

7 ADA ACCESSIBILITY

Facilities to be used in public transportation service must comply with the Americans with Disabilities

Act, 42 U.S.C. § 12101 et seq.; DOT regulations, “Transportation Services for Individuals with

Disabilities (ADA),” 49 C.F.R. part 37; and Joint Access Board/DOT regulations, “Americans with

Disabilities (ADA) Accessibility Specifications for Transportation Vehicles,” 36 C.F.R. part 1192 and

49 C.F.R. part 38. Notably, DOT incorporated by reference into Appendix A of its regulations at 49

C.F.R. part 37 the Access Board’s “Americans with Disabilities Act Accessibility Guidelines” (ADAAG), revised July 2004, which include accessibility guidelines for buildings and facilities. DOT also added specific provisions to Appendix A of 49 C.F.R. part 37 modifying the ADAAG with the result that buildings and facilities must comply with both the ADAAG and the DOT amendments.

8 INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS

The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1F are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any Lextran requests which would cause Lextran to be in violation of the FTA terms and conditions.

9 ENERGY CONSERVATION REQUIREMENTS

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 Energy Conservation requirements are applicable to all contracts.

The Energy Conservation requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subagreements at every tier.

10 TERMINATION

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

b. Termination for Default [Breach or Cause] (General Provision) If the Contractor does not deliver supplies in accordance with the contract delivery schedule, or, if the contract is for services, the Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, Lextran may terminate this contract for default. Termination shall be effected by serving a notice of termination on the contractor setting forth the manner in which the Contractor is in default. The contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract.

If it is later determined by Lextran that the Contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the control of the Contractor, Lextran, after setting up a new delivery of performance schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience.

c. Opportunity to Cure (General Provision) Lextran in its sole discretion may, in the case of a termination for breach or default, allow the Contractor an appropriately short period of time in which to cure the defect. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions.

If Contractor fails to remedy to Lextran’s satisfaction the breach or default of any of the terms, covenants, or conditions of this Contract within ten (10) days after receipt by Contractor of written notice from Lextran setting forth the nature of said breach or default, Lextran shall have the right to terminate the Contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude Lextran from also pursuing all available remedies against Contractor and its sureties for said breach or default.

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

e. Termination for Convenience or Default (Architect and Engineering) Lextran may terminate this contract in whole or in part, for Lextran’s convenience or because of the failure of the Contractor to fulfill the contract obligations. Lextran shall terminate by delivering to the Contractor a Notice of Termination specifying the nature, extent, and effective date of the termination. Upon receipt of the notice, the Contractor shall (1) immediately discontinue all services affected (unless the notice directs otherwise), and (2) deliver to the Contracting Officer all data, drawings, specifications, reports, estimates, summaries, and other information and materials accumulated in performing this contract, whether completed or in process.

If the termination is for the convenience of Lextran, the Contracting Officer shall make an equitable adjustment in the contract price but shall allow no anticipated profit on unperformed services.

If the termination is for failure of the Contractor to fulfill the contract obligations, Lextran may complete the work by contact or otherwise and the Contractor shall be liable for any additional cost incurred by Lextran.

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

11 GOVERNMENT-WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)

This contract is a covered transaction for purposes of 2 CFR Part 1200, which adopts and supplements the U.S. Office of Management and Budget (U.S. OMB) “Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement)”, 2 C.F.R. Part 180. As such, the contractor is required to verify that none of the contractor, its principals, as defined at 2 CFR 1200, or affiliates, as defined at 2 CFR 1200, are excluded or disqualified as defined at 2 CFR 1200.

The contractor is required to comply with 2 CFR 1200, and must include the requirement to comply with 2 CFR 1200 in any lower tier covered transaction it enters into.

The contractor shall verify that its principals, affiliates, and subcontractors are eligible to participate in this federally-funded contract and are not presently declared by any Federal department or agency to be:

• Debarred from participation in any federally assisted award;

• Suspended from participation in any federally assisted award;

• Proposed for debarment from participation in any federally assisted award;

• Declared ineligible to participate in any federally assisted award;

• Voluntarily excluded from participation in any federally assisted award; or

• Disqualified from participation in any federally assisted award.

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

The certification in this clause is a material representation of fact relied upon by Lextran. If it is later determined that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to Lextran, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 2 CFR 1200 while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.

This clause applies to all contracts over $25,000.

12 BREACHES AND DISPUTE RESOLUTION

Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of Lextran’s General Manager.

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

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

Claims for Damages - Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the other party or of any of its employees, agents or others for whose acts it is legally liable, a claim for damages therefor shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage.

Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other matters in question between Lextran and the Contractor arising out of or relating to this agreement or its breach will be decided in a court of competent jurisdiction within Kentucky.

Rights and Remedies - The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by Lextran or Contractor shall constitute a waiver of any right or duty afforded any of them under the

Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing.

This clause applies to all contracts in excess of $100,000.

13 LOBBYING

Lobbying Certification and Disclosure of Lobbying Activities for third party contractors are mandated by 31 U.S.C. 1352(b)(5), as amended by Section 10 of the Lobbying Disclosure Act of 1995, and DOT implementing regulation, "New Restrictions on Lobbying," at 49 CFR § 20.110(d)

Language in Lobbying Certification is mandated by 49 CFR Part 19, Appendix A, Section 7, which provides that contractors file the certification required by 49 CFR Part 20, Appendix A.

Modifications have been made to the Lobbying Certification pursuant to Section 10 of the Lobbying Disclosure Act of 1995.

Use of "Disclosure of Lobbying Activities," Standard Form-LLL set forth in Appendix B of 49 CFR Part 20, as amended by "Government wide Guidance For New Restrictions on Lobbying," 61 Fed. Reg.

1413 (1/19/96) is mandated by 49 CFR Part 20, Appendix A.

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 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 Lextran.

The Lobbying requirements apply to contracts of $100,000 or more.

14 CLEAN AIR

(1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq . The Contractor agrees to report each violation to Lextran and understands and agrees that Lextran will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. The Contractor agrees it will not use any violating facilities.

(2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.

The Clean Air requirements apply to all contracts exceeding $100,000, including indefinite quantities where the amount is expected to exceed $100,000 in any year. The Clean Air requirements flow down to all subcontracts at every tier.

15 CLEAN WATER REQUIREMENTS

(1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq . The Contractor agrees to report each violation to Lextran and understands and agrees that Lextran will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. The Contractor agrees it will not use any violating facilities.

(2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.

The Clean Water requirements apply to each contract and subcontract which exceeds $100,000. The Clean Water requirements flow down to all subcontracts at every tier.

16 DISADVANTAGED BUSINESS ENTERPRISE (DBE) – NO CONTRACT GOAL

16.1 OVERVIEW

It is the policy of Lextran and the United States Department of Transportation (DOT) that Disadvantaged Business Enterprises (DBEs), as defined herein and in the Federal regulations published at 49 C.F.R. part 26, shall have an equal opportunity to participate in DOT-assisted contracts. It is also the policy of Lextran to:

1. Ensure nondiscrimination in the award and administration of DOT-assisted contracts;

2. Create a level playing field on which DBEs can compete fairly for DOT-assisted contracts;

3. Ensure that the DBE program is narrowly tailored in accordance with applicable law;

4. Ensure that only firms that fully meet 49 C.F.R. part 26 eligibility standards are permitted to participate as DBEs;

5. Help remove barriers to the participation of DBEs in DOT-assisted contracts;

6. To promote the use of DBEs in all types of federally assisted contracts and procurement activities; and

7. Assist in the development of firms that can compete successfully in the marketplace outside the DBE program.

This contract is subject to 49 C.F.R. part 26. Therefore, the Contractor must satisfy the requirements for DBE participation as set forth herein. These requirements are in addition to all other equal opportunity employment requirements of this Contract. Lextran shall make all determinations with regard to whether or not a bidder/proposer is in compliance with the requirements stated herein. In assessing compliance, Lextran may consider during its review of the bidder/proposer’s submission package, the bidder/proposer’s documented history of non-compliance with DBE requirements on previous contracts with Lextran.

16.2 CONTRACT ASSURANCE

The contractor, subrecipient, or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of this DOT-assisted contract. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as Lextran deems appropriate, which may include, but is not limited to:

• Withholding monthly progress payments;

• Assessing sanctions;

• Liquidated damages; and/or

• Disqualifying the contractor from future bidding as non-responsible.

Each subcontract the contractor signs with a subcontractor must include the assurance in this paragraph.

The contractor is required to pay its subcontractors performing work related to this contract for satisfactory performance of that work no later than 30 days after the contractor’s receipt of payment for that work from Lextran. In addition, the contractor is required to return any retainage payments to those subcontractors within 30 days after incremental acceptance of the subcontractor’s work by Lextran and contractor’s receipt of the partial retainage payment related to the subcontractor’s work.

16.3 DBE PARTICIPATION REQUIREMENT

For the purpose of this Contract, Lextran will accept only DBEs who are certified at the time of bid opening or proposal evaluation by the Commonwealth of Kentucky.

16.4 DBE PARTICIPATION GOAL

There is no specific contractual DBE goal for this procurement. The successful bidder/offeror will be required to report its DBE participation obtained through race-neutral means throughout the period of performance. While there are no contractual requirements for the successful contractor to utilize the services of a DBE, Lextran strongly encourages the contractor to do so if possible.

16.5 COUNTING DBE PARTICIPATION

The bidder/proposer may count toward its DBE utilization only expenditures to firms which are currently certified by the KY UCP and which perform a commercially useful function. A firm is considered to perform a commercially useful function when it is responsible for the performance of a distinct element of the work and carries out its responsibilities by actually performing, managing and supervising the work involved.

To determine whether a firm is performing a commercially useful function, the DBE Officer will evaluate the amount of work subcontracted, industry practices and other relevant factors. The DBE Officer reserves the right to deny or limit DBE credit to the bidder/proposer where any DBE is found to be engaged in substantial pass-through activities with others.

DBE participation shall be counted toward the DBE goal in the contract as follows:

A. Once a DBE is determined to be eligible in accordance with these rules, the total dollar value of the contract awarded to the DBE may be counted toward the DBE goal except as indicated below.

B. A bidder/proposer may count toward its DBE goal that portion of the total dollar value of a contract with an eligible joint venture equal to the distinct, clearly defined portion of the work of the contract that the DBE performs with its own forces.

C. Consistent with normal industry practices, a DBE may enter into subcontracts. If a DBE subcontracts more than thirty percent (30%) or a significantly greater portion of the work of the contract than would be expected on the basis of normal industry practices, the DBE shall be presumed not to be performing a commercially useful function.

Evidence may be presented by the bidder/proposer involved to rebut this presumption.

D. When a DBE subcontracts a part of the work under the contract to another firm, the value of the subcontracted work may only be counted towards the DBE goal if the DBE’s subcontractor is itself a DBE. Work that a DBE subcontracts to a non-DBE firm does not count towards the DBE goal.

E. The bidder/proposer may count one-hundred percent (100%) of its expenditures for materials and supplies required under the contract and which are obtained from a DBE manufacturer towards the DBE goal. The bidder may count sixty percent (60%) of its expenditures for material and supplies under the contract obtained from a DBE regular dealer towards its DBE goal. The terms “manufacturer” and “regular dealer” are defined in 49 C.F.R. Part 26.55(e)(1)(ii) and (2)(ii).

F. The bidder/proposer may count towards its DBE goal expenditures to DBEs which are not manufacturers or regular dealers, such as fees or commissions charged for services and assistance in the procurement of essential personnel, facilities, equipment, materials or supplies and transportation charges as set forth in 49 C.F.R. Part 26.

However, the DBE Officer must determine the fee or charge to be reasonable and not excessive as compared with fees or charges customarily allowed for similar services.

The bidder/proposer must use good business judgment when negotiating with subcontractors and take a DBE’s price and capabilities into consideration. The fact that there may be some additional costs involved in finding and using DBE firms is not sufficient reason to fail to utilize a DBE, as long as such costs are reasonable.

16.6 REPORTING

Lextran shall monitor the Contractor’s DBE utilization during the life of the contract. In the event this procurement exceeds ninety (90) days, it will be the responsibility of the Contractor to submit quarterly written reports to Lextran that summarize the total DBE value for this Contract. These reports shall provide the following details:

• DBE utilization established for the Contract;

• Total value of expenditures with DBE firms for the quarter;

• The value of expenditures with each DBE firm for the quarter by race and gender;

• Total value of expenditures with DBE firms from inception of the Contract; and

• The value of expenditures with each DBE firm from the inception of the Contract by race and gender.

Reports and other correspondence must be submitted to the DBE Compliance Officer with copies provided to the Director of Purchasing. Reports shall continue to be submitted quarterly until final payment is issued or until DBE participation is completed.

The Contractor shall permit Lextran to have access to necessary records to examine information as Lextran deems appropriate for the purpose of investigating and determining compliance with this provision, including, but not limited to, records of expenditures, invoices, and contracts between the Contractor and other DBE parties entered into during the life of the Contract. The authorized representatives of Lextran, the U.S. Department of Transportation, the Comptroller General of the United States, or their designees shall be allowed to inspect and audit all data and records of the Contractor relating to its performance under the DBE Participation provision of this Contract. All data and records pertaining to DBEs shall be maintained for at least three (3) years from the termination or completion of this Contract.

16.7 DBE PROGRAM DEFINITIONS

A disadvantaged business enterprise is a business:

A. Which is at least 51% owned by one or more socially and economically disadvantaged individuals, or, in the case of any publicly-owned business, at least 51% of the stock of which is owned by one or more socially and economically disadvantaged individuals;

and

B. Whose management and daily business operation are controlled by one or more of the socially and economically disadvantaged individuals who own it. OR

C. Which is at least 51% owned by one or more women individuals, or in the case of any publicly-owned business, at least 51% of the stock of which is owned by one or more women individuals; and

D. Whose management and daily business operations are controlled by one or more women individuals who own it.

“Small business concern” means a small business as defined by section 3 of the Small Business Act and Appendix B – Section 106(c) Determination of Business Size.

“Socially and economically disadvantaged individuals” means those individuals who are citizens of the United States (or lawfully admitted permanent residents) and who are Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Asian-Indian Americans, or women, or any other minorities or individuals found to be disadvantaged by the Small Business Administration pursuant to Section 8(a) of the Small Business Act.

A. “Black Americans” includes persons having origins in any of the Black racial groups of Africa.

B. “Hispanic Americans” includes persons of Mexican, Puerto Rican, Cuban, Central or South America, or other Spanish or Portuguese culture or origin, regardless of race.

C. “Native Americans” includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians.

D. “Asian Americans” includes persons whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, U.S. Trust Territories of the Pacific, and the Northern Marianas.

E. “Asian-Indian Americans” includes persons whose origins are from India, Pakistan, and Bangladesh.

F. “Women”, regardless of race, ethnicity, or origin.

G. “Other” individuals found to be socially and economically disadvantaged by the Small Business Administration (SBA) pursuant to Section 8(a) of the Small Business Act.

17 PAYMENT OF SUBCONTRACTORS

The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than 30 days from the receipt of each payment the prime contractor receives from Lextran. The prime contractor agrees further to return retainage payments to each subcontractor within 30 days after the subcontractor’s work is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of Lextran. This clause applies to both DBE and non-DBE subcontracts.

The Contractor is required to include, in each subcontract, a clause requiring the use of appropriate arbitration mechanisms to resolve all payment disputes.

Lextran will not pay the Contractor for work performed unless and until the Contractor ensures that the Subcontractors have been promptly paid for the work they have performed under all previous payment requests, as evidenced by the filing with Lextran of lien waivers, canceled checks (if requested), and the Contractor’s sworn statement that it has complied with the prompt payment requirements. Prime Contractors must submit a prompt payment affidavit, (form to be provided by Lextran and reproduced below) which identifies each subcontractor (both DBE and non-DBE) and the date and amount of the last payment to such subcontractor, with every payment request filed with Lextran, except for the first payment request, on every contract with Lextran.

Failure to comply with these prompt payment requirements is a material breach of the Contract, which may lead to any remedies permitted under law, including, but not limited to, Contractor debarment.

18 REPORTING REQUIREMENTS DURING THE TERM OF THE CONTRACT

The bidder/proposer shall within thirty (30) business days of contract award, or prior to any work being performed, execute formal subcontracts or purchase orders with the DBE firms included in the bid/proposal. These written agreements shall be made available to Lextran upon request. All contracts between the bidder/proposer and its subcontractors must contain a prompt payment clause as set forth in this section above.

During the term of annual contracts, the bidder shall submit regular “Status Reports of DBE Subcontract Payments” in a form acceptable to the Authority. The frequency with which these reports are to be submitted will be determined by Lextran, but in no event will reports be required less frequently than quarterly. In the absence of written notice from Lextran, the bidder/proposer’s first “Status Report of DBE Subcontract Payments” will be due ninety (90) days after the date of contract award, with additional reports due quarterly thereafter. In the case of a one-time procurement with either a single or multiple deliveries, a “Status Report of DBE Subcontract Payments”, in a form acceptable to the Authority, indicating final DBE payments shall be submitted directly to Lextran. The information must be submitted prior to or at the same time as the bidder/proposer’s final invoice to the Authority. Failure to follow these directions may delay final payment.

19 PROMPT PAYMENT AFFIDAVIT

Contractor will place a check in the appropriate box below that applies to this payment request.

Re: Payment Request No. _______

I, ___________________________ (Name), the _________________________________ (Title - e.g., President, Vice President, etc.) of _________________________________ ("Company"), do state the following with regard to payments made under Contract No. ______________________ ("Contract"):

1. ____Subcontractors, at the first tier, both DBE and non-DBE, who completed work and were listed for payment on the prior Payment Request No. _______, were paid no later than thirty (30) business days after Company received payment from Lextran.

2. ____Copies of invoices and cancelled checks for subcontractors at the first tier who were paid under the prior payment request have been delivered or mailed to the DBE Department. In addition, Company has attached to the current Payment Request all lien waivers for prior subcontractor payments and any other documentation required by Lextran. (Failure to attach all required documentation to the Payment Request or forward cancelled checks and invoices to the Lextran DBE Department may cause the Payment Request to be rejected by Lextran.)

3. ____All retainage amounts withheld from any subcontractor who satisfactorily completed its portion of the contract work, including punch list items, were paid to the subcontractor(s) no later than thirty (30) business days after it satisfactorily completed its work, whether or not Lextran has paid said retainage amounts to Company. Attach a copy of the cancelled check evidencing payment of each retainage amount.

4. ____There was no delay in or postponement of any payment owed to a subcontractor, whether periodic payment or retainage amount, except for good cause and after receipt of prior written approval from the Lextran Purchasing Agent.

Attach a copy of the written approval from the Lextran Purchasing Agent.

Company Name

Signature

Print Name

Date: _______________________

Subscribed and sworn to before me this ________day of ________ 20__.

Notary Public

20 DISCLAIMER OF LIABILITY

The Authority will not hold harmless or indemnify any contractor for any liability whatsoever, except those arising out of circumstances under the sole control of the Authority or where it is determined there is a shared liability.

In a 1986 Kentucky Attorney General Opinion,1 the Attorney General confirmed that the Commonwealth of Kentucky is “clearly prohibited” from entering into an indemnity or “hold harmless” clause under Sections 50, 171, and 177 of the Kentucky Constitution.2 Section 50 of the Kentucky Constitution prohibits any “agency of the state, including its legislature” from placing “an obligation against the general funds otherwise available for appropriation and expenditure by a future legislature.”3 Section 177 of the Kentucky Constitution prohibits lending the credit of the Commonwealth to any person or corporation for any purpose – public or otherwise.4 Additionally, payment of private claims would violate Kentucky Constitution Section 171, which requires that public funds be used only for public purposes.5 The Attorney General concluded that such an indemnity provision is “clearly unconstitutional.”6

Lextran is prohibited from entering into an indemnity agreement with Contractors because it is a political subdivision of the Commonwealth.7 Lextran is an agency and instrumentality of the Lexington-Fayette Urban County Government.8 Kentucky courts “have adhered to a rather strict course in holding that a county, and a city as well, as a subordinate political subdivision of the state and as a part of the sovereignty itself, exists and operates under the general laws of the Commonwealth, and derives all of its powers of functioning through express legislative enactments.”9 Lextran “is but an arm of the state government” and is bound by the Kentucky Constitution.10

21 GOVERNING LAW

All contractual agreements shall be subject to, governed by, and construed according to the laws of the Commonwealth of Kentucky.

22 PROTEST PROCEDURES

Protests will only be accepted from prospective proposers whose direct economic interest would be affected by the award of a contract to the refusal to award a contract. The Procurement Manager will receive and then forward all protests to the General Manager who will consider the protest, whether

1 1986 Ky. AG LEXIS 70.

2 Id. at *2 (emphasis added).

3 Id. at *2-*3 (citing McGuffey v. Hall, 557 S.W.2d 401, 409 (Ky. 1977)).

4 Id. at *3 (citing McGuffey, 557 S.W.2d at 410)).

5 Id.

6 Id. at *6.

7 Transit Authority of Lexington-Fayette Urban County Government v. Amalgamated Transit Union, Local 639, 698 S.W.2d 520, 523 (Ky. 1985) (“The Transit Authority [Lextran] is charged with the performance of a public purpose. It is an agency of government, a political subdivision, and its governing board has a responsibility to the public to faithfully discharge its duties relating to the control and management of the Authority.”) (emphasis added).

8 See OAG 83-152, 1983 Ky. AG LEXIS 344, *4-*5 (1983) (“Thus [the Transit Authority of River City] is an agency and instrumentality of the City of Louisville and Jefferson County.”). “There is a long line of cases holding that a political subdivision (or its agent or instrumentality) has such authority expressly delegated to it or such essential power as may reasonably be necessary to execute express powers or discharge duties devolved upon it.” Id. at *9 (citing Bruner v.

Jefferson County Fiscal Court, 239 Ky. 613 (Ky. 1931)).

9 OAG 86-50, 1985 Ky. AG LEXIS 99,*11 (1985) (emphasis added).

10 Holland v. Fayette County, 240 Ky. 37, 44 (Ky. 1931) (“The county is but an arm of the state government; it is merely a subdivision of the state formed for administrative convenience . . . .”).

submitted before or after the award of a contract. The only exception to this procedure is in the case where the selection of a management company is involved; in this instance the protests will be forwarded to the Chairman of the Authority Board. If oral objections are raised and then cannot be resolved, the protest must then be made in writing before any further consideration can be given.

Protests must be concise, logically arranged, and clearly state the grounds for protest. Protests must include, at least, the following information:

• Name, address, and telephone number of protester

• Identification of the solicitation

• A detailed statement of the legal and factual grounds of the protest

• A statement as to what relief is requested

All protests documents received shall be stamped with the date and time by the Procurement manger and logged into a protest file.

Lextran will respond, in detail, to each substantive issue raised in the protest. Lextran’s determination will be final. Lextran will allow a request for reconsideration if data becomes available that was not previously known, or there has been an error of law or regulation.

22.1 Protests Before Award

Protests before award must be submitted within the time frame as specified below. If the written protest is not received by the time specified, the evaluation process shall continue in the normal manner, unless the General

Manager upon investigation finds that remedial action is desirable, in which event such action shall be taken.

The protests addressing the adequacy of invitation for Bids, RFPs, including, without limitation, the pre-award procedure, the instructions to Bidders, General Terms and Conditions, Specifications and Scope of work must be filed at 200 West Loudon Avenue, Lexington, KY 40508 no later than three days before bid date. Thereafter, such issues are deemed waived by all interested parties.

Notice of a protest and the basis therefore shall be given to all bidders or offerers. In addition, when a protest against the making of an award is received, and the General Manager determines to withhold the award pending disposition of the protest, the bidders (whose bids might become eligible for award) shall be requested, before expiration of the time for acceptance of their bids, to extend the time for acceptance (with consent of sureties, if any) to avoid the need for re-advertising.

A written protest against the making of an award must be received by the Procurement Manager, at least, ten

(10) days prior to the scheduled contract award date.

Where written protest against the making of an award is received, award shall not be made until five (5) days after the matter is resolved, unless the General Manager determines that:

The items to be procured are urgently required; or

Delivery or performance will be unduly delayed by failure to make the award promptly; or

Failure to make prompt award will otherwise cause undue harm to the Authority or the State or the Federal

Government.

In the event the General Manager determines that the award is to be made during the five-day period or during the pendency of a protest, he or she shall notify FTA prior to making such award. FTA reserves the right not to participate in such procurement.

If award is made, the Authority shall document the file to explain the need for an award and shall give written notice of the decision to proceed with the award to the protester and, as appropriate, to others concerned.

22.2 Protest After Award

Protest against award must be filed at the Authority’s office within five (5) days immediately following the award. The protest shall be received by the Procurement Manager. However, although the number of persons involved in or affected by the filing of a protest may be limited in instances where an award has been made, the

Contractor shall in any event be furnished with the notice of protest and the basis therefore. Also, when it appears likely that an award may be invalidated and a delay in receiving the supplies or service is not prejudicial to the Authority’s interest, the General Manager shall consider a mutual agreement with the contractor to suspend performance on a no-cost basis.

Decision on the Protest: The General Manager shall render his or her decision in writing within fourteen (14) days from the receipt of the written protest and shall provide notice of such decision to all interested parties.

FTA’s Review of Protests: FTA will only review protests that are primarily a Federal concern, pursuant to 2 CFR

§ 200.318(k). Examples of “Federal concerns” include, but are not limited to, situations where a special Federal interest is declared because of program management concerns, possible mismanagement, impropriety, waste, or fraud. When raising Federal matters with the FTA prior to exhaustion of all administrative remedies with

Lextran, protesters are advised to clearly articulate the Federal concern, its impact on Lextran’s view of the protest, the prejudice to the protester that will result if FTA does not resolve the Federal matter immediately, and provide any other relevant documents or materials.

Alleged violations on other grounds are under the jurisdiction of the appropriate State or local administrative or judicial authorities. Alleged violations of a special Federal requirement that provides an applicable complaint procedure shall be submitted and processed in accordance with that Federal regulation. See, e.g., Buy America

Requirements, 49 CFR Part 661 (Section 661.15); Participation by Minority Business Enterprise in Department of Transportation Programs, 49 CFR Section 23.73.

FTA’s Remedy: Should the grounds for the protest be found valid and on a matter that is primarily a Federal concern by FTA, FTA may choose not to participate in funding the contract.

22.3 Definitions

For the purposes of this section, the following definitions apply:

“Days” refers to working days of the Federal Government.

“File” or “submit” refers to the date of receipt by the General Manager or FTA, as the case may be.

“Interested party” means an actual or prospective bidder or offerer whose direct economic interest would be affected by the award of the contract or by failure to award the contract.

Time for Filing with FTA: Protestors shall file a protest with FTA no later than five (5)…