RFP 22-026 Demand Response Mobility Software Exhibit B Sample Contract.pdf

SALEM AREA MASS TRANSIT DISTRICT (SAMTD)

Demand Response Mobility Software RFP No. 22-026

Sample Contract – Page 1

EXHIBIT B

SAMPLE CONTRACT

DO NOT EXECUTE

SALEM AREA MASS TRANSIT DISTRICT

DEMAND RESPONSE MOBILITY SOFTWARE

Contract No. 22-026

This Contract is by and between Salem Area Mass Transit District ("SAMTD") and

Successful Contractor Name ("Contractor").

1. Term

Unless terminated sooner under the provisions of this Contract, the base term of the Contract shall be from November 1, 2022 to December 31, 2025.

2. Contract Provisions

All provisions of the documents below are incorporated in this contract by reference. Any conflict between or among any of the documents listed below shall be resolved in accordance with the order of precedence set forth below.

A. Written contract modifications executed by the parties after contract award, B. This contract form, C. Scope of Services as set forth in Exhibit A-1, D. Compensation as set forth in Exhibit A-2

E. FTA Clauses as set forth in Exhibit B, F. General Conditions as set forth in Exhibit C, G. Special Contract Conditions as set forth in Exhibit D, H. Addenda, if any, as set forth in Exhibit E.

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3. Scope of Services

Contractor shall perform the tasks identified in the Scope of Services set forth in

A-1, within the time frame and budget stated.

4. Compensation

Provided that Contractor fully and faithfully performs its obligations under this

Agreement, SAMTD agrees to compensate Contractor in accordance with the rates set forth in Exhibit A-2. Total contract compensation shall not exceed $XXXXXX in the base term.

5. Tax Certification

Contractor hereby certifies, under penalty of perjury, that Contractor is, to the best of its knowledge, not in violation of any tax laws described in ORS 305.380(4).

CONTRACTOR NAME SALEM AREA MASS TRANSIT DISTRICT

By: By:

(signature) (signature)

Name: Name: Allan Pollock

Title: Title: General Manager / CEO

Approved As To Form

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Exhibit A-1

SCOPE OF SERVICES

Scope Description

(Insert Scope & Specifications from RFP 22-026 PART 2 Here)

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Exhibit A-2

COMPENSATION

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EXHIBIT B

FEDERAL TRANSIT ADMINISTRATION (FTA)

CONTRACT CLAUSES

It is the responsibility of the Bidder to ensure that all clauses applicable to the work of a Contract / Agreement resultant from this Solicitation are adhered to by the Contractor and its Sub-Contractors when applicable.

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FEDERAL TRANSIT ADMINISTRATION CONTRACT CLAUSES

INDEX

1. Fly America Requirements

2. Buy America Requirements

3. Charter Bus and School Bus Requirements (Reserved)

4. School Bus Requirements (Reserved)

5. Cargo Preference Requirements

6. Seismic Safety Requirements (Reserved)

7. Energy Conservation Requirements

8. Environmental Requirements

9. Bus Testing (Reserved)

10. Pre-Award and Post-Delivery Audit Requirements (Reserved)

11. Lobbying

12. Access to Records and Reports

13. Federal Changes

14. Bonding Requirements (Reserved)

15. Recycled Products

16. Davis-Bacon and Copeland Anti-Kickback Acts (Reserved)

17. Contract Work Hours and Safety Standards Act

18. No Government Obligation to Third Parties

19. Program Fraud and False or Fraudulent Statements or Related Acts

20. Termination

21. Government-Wide Debarment and Suspension (Non-procurement)

22. Privacy Act

23. Civil Rights Requirements

24. Breaches and Dispute Resolution

25. Patent and Rights in Data

26. Transit Employee Protective Agreements (Reserved)

27. Disadvantaged Business Enterprise (DBE) Requirements

28. Incorporation of Federal Transit Administration (FTA) Terms – Circular 4220.1F

29. Drug and Alcohol Testing

30. Compliance with Federal, State, and Local Requirements

31. Americans with Disabilities Act (ADA)

32. FTA Protest Requirements

33. Prompt Payment and Return of Retainage

34. Force Majeure

35. Veteran; Disabled Veteran; Preference Eligible (Reserved)

36. Prohibition On Certain Telecommunications And Video Surveillance Services Or Equipment

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FEDERAL TRANSIT ADMINISTRATION (FTA) CONTRACT CLAUSES

1. FLY AMERICA REQUIREMENTS

49 U.S.C. § 40118 41 C.F.R. §§ 301-10.131 – 301-10.143

Applicable to: Contracts that have transportation of persons or property, by air, between a place in the U.S.

and a place outside the U.S., or between places outside the U.S., when the U.S. government will participate in the costs of such air transportation. Contactors are responsible for ensuring that all subcontractors are in compliance.

Applies to: All contracts: Contractors and subcontractors.

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

2. BUY AMERICA REQUIREMENTS

49 U.S.C. § 5323(j)

49 C.F.R. Part 661 49 U.S.C. § 24405(a)

Applicable to: All federally assisted procurements using funds authorized by 49 U.S.C. 5323(j); 23 U.S.C.

§ 103(e)(4); and section 14 of the National Capital Transportation Act of 1969.

Applies to: Contractors and subcontractors.

The Contractor agrees to comply with 49 U.S.C. § 5323(j) and 49 C.F.R. part 661, which provide that Federal funds may not be obligated unless steel, iron, and manufactured products used in FTA-funded projects are produced in the United States, unless a waiver has been granted by the Secretary of Transportation or the product is subject to a general waiver. General waivers are listed in 49 C.F.R. § 661.7, and include final assembly in the United States for 15-passenger vans and 15-passenger wagons produced by Chrysler Corporation, microcomputer equipment, software, and small purchases (currently less than $150,000) made with capital, operating, or planning funds.

Separate requirements for rolling stock are set out at 49 U.S.C. § 5323(j)(2)(C) and 49 C.F.R. §

661.11. Rolling stock not subject to a general waiver must be manufactured in the United States and have 70 percent or more domestic content.

Demand Response Mobility Software Contract No. 22-026

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

3. CHARTER BUS REQUIREMENTS

49 U.S.C. § 5323(d) or (r)

49 C.F.R. Part 604

Any other Federal Charter Service Regulations, or Federal Guidance

(Reserved)

4. SCHOOL BUS REQUIREMENTS

49 U.S.C. § 5323(f) or (g)

49 C.F.R. Part 605

Any other applicable Federal “School Bus Operations” Regulations or Federal Guidance

5. CARGO PREFERENCE REQUIREMENTS

46 U.S.C. § 55305

46 C.F.R. Part 381

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

Use of United States-Flag Vessels. The Contractor agrees:

1. To use privately owned United States-Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States-Flag commercial vessels.

2. To furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 days following the date of loading for shipments originating outside the United States, a legible copy of a rated, “on-board” commercial ocean bill-of-lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington D.C. 20590 and the FTA recipient (t hr oug h t he Contractor in t he case of a subcont r act or’s bill -of- lading.)

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

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6. SEISMIC SAFETY REQUIREMENTS

42 U.S.C. §§ 7701–7709

49 C.F.R. Part 41

7. ENERGY CONSERVATION REQUIREMENTS

42 U.S.C. §§ 6321–6327

49 C.F.R. Part 622 Subpart C

Applicable to: All contracts.

The Contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. The Contractor also agrees to include a substantially similar provision in its contracts with subcontractors.

8. ENVIRONMENTAL REQUIREMENTS

Applicable to: All contracts and subcontracts.

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

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

Accordingly, the Contractor will:

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

(a) Federal transit laws, such as 49 U.S.C. § 5323(c)(2), and 23 U.S.C. § 139,

(b) The National Environmental Policy Act of 1969 (NEPA), as amended, 42

U.S.C. §§ 4321 et seq., as limited by 42 U.S.C. § 5159, and CEQ’s implementing regulations 40 C.F.R. part 1500-1508,

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

(d) Executive Order No. 11514, as amended, “Protection and Enhancement of Environmental Quality,” March 5, 1970, 42 U.S.C. § 4321 note, and

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

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

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

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

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

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

(1) Executive Order No. 12898, “Federal Actions to Address Environmental Justice in

Minority Populations and Low-Income Populations,” February 11, 1994, 42 U.S.C.

§ 4321 note, as well as facilitating compliance with that Executive Order,

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

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

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

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

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

f. Historic Preservation. The Contractor agrees to:

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

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

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

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

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

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g. Indian Sacred Sites. The Contractor agrees to facilitate compliance with federal efforts to promote the preservation of places and objects of religious importance to American Indians, Eskimos, Aleuts, and Native Hawaiians, and facilitate compliance with the American Indian Religious Freedom Act, 42 U.S.C. § 1996, and Executive Order No.

13007, “Indian Sacred Sites,” May 24, 1996, 42 U.S.C. § 3161 note.

h. Mitigation of Adverse Environmental Effects.

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

(2) The Contractor agrees that:

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

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

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

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

9. BUS TESTING

49 U.S.C. § 5318(e)

10. PRE-AWARD AND POST-DELIVERY AUDITS REQUIREMENTS

49 U.S.C. § 5323(m)

11. LOBBYING

31 U.S.C. § 1352 49 C.F.R. Part 20

Applicable to: Contracts exceeding $100,000.

The Contractor agrees that it will not use federal assistance to influence any officer or employee of a federal agency, member of Congress or an employee of a member of Congress, or officer or employee of Congress on matters that involve the Underlying Agreement, including any extension or modification, according to the following:

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1) Laws, Regulations, Requirements, and Guidance.

a) The Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352, as amended,

b) U.S. DOT regulations, “New Restrictions on Lobbying,” 49 C.F.R. part 20, to the extent consistent with 31 U.S.C. § 1352, as amended, and

c) Other applicable federal laws, regulations, requirements, and guidance prohibiting the use of federal assistance for any activity concerning legislation or appropriations designed to influence the U.S. Congress or a state legislature, and

2) Exception. If permitted by applicable federal law, regulations, or guidance, such lobbying activities described above may be undertaken through proper official channels.

3) The Contractor agrees to include a substantially similar provision in its contracts with

12. ACCESS TO RECORDS AND REPORTS

49 U.S.C. § 5325 Former 49 C.F.R. § 18.36 (i)

49 C.F.R. § 633.17

Applicable to: Contracts as described below.

Applies to: Contractors.

The following access to records requirements apply to this Contract:

1. Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. § 18.36(i), the Contractor agrees to provide SAMTD, the FTA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions. Contractor also agrees, pursuant to 49 C.F.R. § 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. § 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. §§ 5307, 5309, or 5311.

2. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 U.S.C. § 5325(a) enters into a contract for a capital project or improvement (defined at 49 U.S.C. § 5302(a)1) through other than competitive bidding, the Contractor shall make available records related to the contract to SAMTD, the Secretary of Transportation, and the Comptroller General or any authorized officer or employee of any of them for the purposes of conducting an audit and inspection. (If applicable).

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

4. The Contractor agrees to maintain all books, records, accounts, and reports required under this contract for a period of not less than seven years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until SAMTD, Sample Contract – Page 13 the FTA Administrator, the Comptroller General, or any of their duly authorized representatives have disposed of all such litigation, appeals, claims, or exceptions related thereto. Reference 49 C.F.R. § 18.39(i)(11).

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

13. FEDERAL CHANGES

Former 49 C.F.R. Part 18

Contractor shall at all times comply with all applicable FTA regulations, policies, procedures, and directives, including without limitation those listed directly or by reference in the Master Agreement (FTA MA (28) dated February 9, 2021) between SAMTD and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor’s failure to so comply shall constitute a material breach of this contract. The Contractor agrees to include a substantially similar provision in its contracts with subcontractors.

14. BONDING REQUIREMENTS

15. RECYCLED PRODUCTS

42 U.S.C. § 6962

40 C.F.R. Part 247

Applicable to: The Recycled Products requirements apply to 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 fiscal year, or has procured $10,000 or more of such items in the previous fiscal year, using Federal funds.

The contractor agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. § 6962), including but not limited to the regulatory provisions of 40 C.F.R. part 247, as they apply to the procurement of the items designated in subpart B of 40 C.F.R. part 247. The Contractor agrees to include a substantially similar provision in its contracts with subcontractors.

16. DAVIS-BACON AND COPELAND ANTI-KICKBACK ACTS

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17. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT

Applicable to: All contracts and subcontracts “financed at least in part by loans or grants from … the [Federal] Government” [40 U.S.C. § 3701(b)(1)(B)(iii) and (b)(2), 29 C.F.R. § 5.2(h).

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

1. Overtime requirements - No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

2. Violation; liability for unpaid wages; liquidated damages - In the event of any violation of the clause set forth in paragraph (b)(1) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (b)(1) of this section, in the sum of $25 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (b)(1) of this section.

3. Withholding for unpaid wages and liquidated damages - SAMTD shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section.

4. Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs (1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this section.

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18. NO GOVERNMENT OBLIGATION TO THIRD PARTIES

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

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

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

19. PROGRAM FRAUD AND FALSE OR FRAUDULENT

STATEMENTS OR RELATED ACTS

31 U.S.C. §§ 3801–3812

49 C.F.R. Part 31 18 U.S.C. § 1001

Applies to: Contractors and subcontractors who make, present, or submit covered claims and statements.

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

2. The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C.§ 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 on the Contractor, to the extent the Federal Government deems appropriate.

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

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20. TERMINATION

FTA Circular 4220.1F

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

Applies to: All contractors and subcontractors.

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

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

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

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

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

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

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

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5. Termination for Default (Construction): If the Contractor refuses or fails to prosecute the work or any separable part, with the diligence that will insure its completion within the time specified in this contract or any extension or fails to complete the work within this time, or if the Contractor fails to comply with any other provisions of this contract, SAMTD may terminate this contract for default. SAMTD shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default. In this event, SAMTD may take over the work and compete it by contract or otherwise, and may take possession of and use any materials, appliances, and plant on the work site necessary for completing the work. The Contractor and its sureties shall be liable for any damage to SAMTD resulting from the Contractor's refusal or failure to complete the work within specified time, whether or not the Contractor's right to proceed with the work is terminated. This liability includes any increased costs incurred by the Recipient in completing the work.

The Contractor's right to proceed shall not be terminated nor the Contractor charged with damages under this clause if-

a. the delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include: acts of God, acts of the Recipient, acts of another Contractor in the performance of a contract with the Recipient, epidemics, quarantine restrictions, strikes, freight embargoes; and

b. the contractor, within [10] days from the beginning of any delay, notifies SAMTD in writing of the causes of delay. If in the judgment of SAMTD, the delay is excusable, the time for completing the work shall be extended. The judgment of SAMTD shall be final and conclusive on the parties, but subject to appeal under the Disputes clauses.

If, after termination of the Contractor's right to proceed, it is determined that the Contractor was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the Recipient.

21. GOVERNMENT-WIDE DEBARMENT AND

SUSPENSION (NONPROCUREMENT)

2 C.F.R. Part 180

2 C.F.R. Part 2100

Applicable to: All contracts and subcontracts which are equal to or greater than $25,000.

Contractor agrees to comply with the following requirements of 2 C.F.R. part 180, subpart C, as adopted and supplemented by U.S. DOT regulations at 2 C.F.R. part 1200:

1) It will not enter into any arrangement with a subcontractor that is debarred or suspended except as authorized by law;

2) It will review the U.S. GSA “System for Award Management (SAM),” https://www.sam.gov, if required by U.S. DOT regulations, 2 C.F.R. part 1200, in order to verify that none of the contractor, its principals, as defined at 2 C.F.R. § 180.995, or affiliates, as defined at 2 C.F.R. § 180.905, are excluded or disqualified as defined at 2 C.F.R. §§ 180.940, 180.935 https://www.sam.gov/

Sample Contract – Page 18

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

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

a. The certification in this clause is a material representation of fact relied upon by

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

22. FREEDOM OF INFORMATION ACT

5 U.S.C. § 552

The following requirements apply to the Contractor and its employees that administer any system of records on behalf of the Federal Government under any contract:

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

(2) The Contractor also agrees to include these requirements in each subcontract to administer any system of records on behalf of the Federal Government financed in whole or in part with Federal assistance provided by FTA.

(3) The Contractor also agrees to comply with other federal laws, regulations, requirements, and guidance concerning access to records pertaining to the contract.

23. CIVIL RIGHTS REQUIREMENTS

42 U.S.C. § 2000

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

49 U.S.C. § 5332

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

28 C.F.R. § 50.3

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

Civil Rights Requirements. The Contractor agrees that it must comply with applicable federal civil rights laws, regulations, requirements, and guidance, and follow applicable federal guidance, except as the Federal Government determines otherwise in writing. Therefore, unless a Recipient or a federal program, including the Tribal Transit Program or the Indian Tribe Recipient, is specifically exempted from a civil rights statute, FTA requires compliance with that civil rights statute, including compliance with equity in service.

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

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

2. Prohibit the:

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

b. Denial of program benefits in employment or a business opportunity identified in

49 U.S.C. § 5332, or

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

3. Follow:

a. The most recent edition of FTA Circular 4702.1, “Title VI Requirements and

Guidelines for Federal Transit Administration Recipients,” to the extent consistent with applicable federal laws, regulations, requirements, and guidance, and other applicable federal guidance that may be issued, but

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

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

1. Prohibit discrimination based on race, color, or national origin,

2. Comply with:

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

b. U.S. DOT regulations, “Nondiscrimination in Federally-Assisted Programs of the Department of Transportation – Effectuation of Title VI of the Civil Rights Act of 1964,” 49 C.F.R. part 21, and

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

3. Follow:

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

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

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

Equal Employment Opportunity.

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

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A. Comply with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., B. Facilitate compliance with Executive Order No. 11246, “Equal Employment Opportunity” September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it in part and is applicable to federal assistance programs, C. Comply with federal transit law, specifically 49 U.S.C. § 5332

D. FTA Circular 4704.1, “Equal Employment Opportunity Program Guidelines for Grant Recipients,” July 26, 1988, and

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

2. Specifics. The Contractor Agrees that it will:

a. Prohibited Discrimination. As provided by Executive Order No. 11246, as amended by any later Executive Order that amends or supersedes it, and as specified by U.S. Department of Labor regulations, ensure that applicants for employment are employed and employees are treated during employment without discrimination on the basis of their race, color, religion, national origin, disability, age, sexual orientation, gender identity, or status as a parent,

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

i. Recruitment advertising, recruitment, and employment,

ii. Rates of pay and other forms of compensation,

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

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

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

3. Equal Employment Opportunity Requirements for Construction Activities. Comply, when undertaking “construction” as recognized by the U.S. Department of Labor (U.S. DOL), with:

a. U.S. DOL regulations, “Office of Federal Contract Compliance Programs, Equal

Employment Opportunity, Department of Labor,” 41 C.F.R. chapter 60, and

b. Executive Order No. 11246, “Equal Employment Opportunity in Federal Employment,” September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note.

24. BREACHES AND DISPUTE RESOLUTION

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

Disputes - Disputes arising in the performance of this Contract, which are not resolved by agreement of the parties, shall be decided in writing by the authorized representative of SAMTD’s General Manager. This decision shall be final and conclusive unless within ten (10) days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the General Manager. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the

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

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

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

3. Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes, and other matters in question between SAMTD and the Contractor arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of competent jurisdiction within the State in which SAMTD is located.

4. Rights and Remedies - The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights, and remedies otherwise imposed or available by law. No action or failure to act by SAMTD, Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing.

25. PATENT AND RIGHTS IN DATA

35 U.S.C. §§ 200 – 212

37 C.F.R. Part 401

A. Rights in Data - This following requirements apply to each contract involving experimental, developmental or research work:

1. The term "subject data" used in this clause means recorded information, whether or not copyrighted, that is delivered or specified to be delivered under the contract. The term includes graphic or pictorial delineation in media such as drawings or photographs; text in specifications or related performance or design-type documents;

machine forms such as punched cards, magnetic tape, or computer memory printouts;

and information retained in computer memory. Examples include, but are not limited to: computer software, engineering drawings and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identifications, and related information. The term "subject data" does not include financial reports, cost analyses, and similar information incidental to contract administration.

2. The following restrictions apply to all subject data first produced in the performance of the contract to which this Attachment has been added:

i. Except for its own internal use, the Purchaser or Contractor may not publish or

Sample Contract – Page 22 reproduce subject data in whole or in part, or in any manner or form, nor may the Purchaser or Contractor authorize others to do so, without the written consent of the Federal Government, until such time as the Federal Government may have either released or approved the release of such data to the public; this restriction on publication, however, does not apply to any contract with an academic institution.

ii. The Federal Government reserves a royalty-free, non-exclusive and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use, for "Federal Government purposes," any subject data or copyright described in subsections (2)(b)1 and (2)(b)2 of this clause below. As used in the previous sentence, "for Federal Government purposes," means use only for the direct purposes of the Federal Government. Without the copyright owner's consent, the Federal Government may not extend its Federal license to any other party.

1. Any subject data developed under that contract, whether or not a copyright has been obtained; and

2. Any rights of copyright purchased by the Purchaser or Contractor using Federal assistance in whole or in part provided by FTA.

iii. When FTA awards Federal assistance for experimental, developmental, or research work, it is FTA's general intention to increase transportation knowledge available to the public, rather than to restrict the benefits resulting from the work to participants in that work. Therefore, unless FTA determines otherwise, the Purchaser and the Contractor performing experimental, developmental, or research work required by the underlying contract to which this Attachment is added agrees to permit FTA to make available to the public, either FTA's license in the copyright to any subject data developed in the course of that contract, or a copy of the subject data first produced under the contract for which a copyright has not been obtained. If the experimental, developmental, or research work, which is the subject of the underlying contract, is not completed for any reason whatsoever, all data developed under that contract shall become subject data as defined in subsection (a) of this clause and shall be delivered as the Federal Government may direct. This subsection (c), however, does not apply to adaptations of automatic data processing equipment or programs for the Purchaser or Contractor's use whose costs are financed in whole or in part with Federal assistance provided by FTA for transportation capital projects.

iv. Unless prohibited by state law, upon request by the Federal Government, the

Purchaser and the Contractor agree to indemnify, save, and hold harmless the Federal Government, its officers, agents, and employees acting within the scope of their official duties against any liability, including costs and expenses, resulting from any willful or intentional violation by the Purchaser or Contractor of proprietary rights, copyrights, or right of privacy, arising out of the publication, translation, reproduction, delivery, use, or disposition of any data furnished under that contract. Neither the Purchaser nor the Contractor shall be required to indemnify the Federal Government for any such liability arising out of the wrongful act of any employee, official, or agents of the Federal

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Government.

v. Nothing contained in this clause on rights in data shall imply a license to the Federal Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Federal Government under any patent.

vi. Data developed by the Purchaser or Contractor and financed entirely without using Federal assistance provided by the Federal Government that has been incorporated into work required by the underlying contract to which this Attachment has been added is exempt from the requirements of subsections (b), (c), and (d) of this clause, provided that the Purchaser or Contractor identifies that data in writing at the time of delivery of the contract work.

vii. Unless FTA determines otherwise, the Contractor agrees to include these requirements in each subcontract for experimental, developmental, or research work financed in whole or in part with Federal assistance provided by FTA.

3. Unless the Federal Government later makes a contrary determination in writing, irrespective of the Contractor's status (i.e. , a large business, small business, state government or state instrumentality, local government, nonprofit organization, institution of higher education, individual, etc.), the Purchaser and the Contractor agree to take the necessary actions to provide, through FTA, those rights in that invention due the Federal Government as described in U.S. Department of Commerce regulations, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," 37 C.F.R. part 401.

4. The Contractor also agrees to include these requirements in each subcontract for experimental, developmental, or research work financed in whole or in part with Federal assistance provided by FTA.

26. TRANSIT EMPLOYEE PROTECTIVE AGREEMENTS

49 U.S.C. § 5310, § 5311, and § 5333

29 C.F.R. Part 215

27. DISADVANTAGED BUSINESS ENTERPRISE (DBE)

REQUIREMENTS

49 C.F.R. Part 26

Section 1101(b) of the FAST Act

Applies to: Contractors and subcontractors

A. Policy. SAMTD has established a Disadvantaged…