RFP 24-009 EAMS - Appendix C - Federal Terms and Conditions.pdf

SALEM AREA MASS TRANSIT DISTRICT (SAMTD) RFP 24-009

Enterprise Asset Management Software (EAMS)

RFP 24-009 EAMS - Appendix C - Federal Terms and Conditions Page 1 of 23

APPENDIX C FEDERAL TRANSIT ADMINISTRATION (FTA)

CONTRACT CLAUSES

This Contract is funded in part under a financial assistance agreement between Salem Area Mass Transit District and the U.S. Department of Transportation, Federal Transit Administration (FTA). This Contract is subject to all provisions prescribed for third party contracts by that financial assistance agreement, including, but not necessarily limited to, the provisions below. Unless otherwise specified, all terms of this Section shall be included all supplier and subcontractor agreements.

Except as FTA determines otherwise in writing Contractor must comply with all applicable federal laws, regulations, and requirements, and should follow applicable federal guidance. FTA may take enforcement action if Contractor violates an applicable federal law, regulation, or requirement, or does not follow applicable federal guidance.

The following terms are non-negotiable without prior written approval from the Federal Transit Administration.

FLY AMERICA REQUIREMENTS

49 U.S.C. § 40118

41 C.F.R. §§ 301-10.131 – 301-10.143

Applicable to: Contracts that have transportation of persons or shipment of agency property, by air, between a place in the U.S. and a place outside the U.S., or between places outside the U.S., when the grant pays for this activity. 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 sub recipients of Federal funds and their contractors are required to use U.S. flag air carriers for U.S. Government-financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign air carrier was used, an appropriate certification adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation. The Contractor agrees to include substantially similar provisions in its contracts with subcontractors.

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BUY AMERICA REQUIREMENTS

49 U.S.C. § 5323(j)

49 U.S.C. § 24405(a)

2 CFR § 184

49 C.F.R. § 661

Applicable to: All federally assisted procurements of steel, iron, manufactured goods, and construction materials.

Applies to: Contractors and subcontractors.

The Contractor agrees to comply with 49 U.S.C. § 5323(j) and 49 C.F.R. part 661, which provide that Federal funds may not be obligated unless steel, iron, construction materials, and manufactured products used in FTA-funded projects are produced in the United States, unless a waiver has been granted by the Secretary of Transportation or the product is subject to a general waiver. General waivers are listed in 49 C.F.R. § 661.7.

Separate requirements for rolling stock are set out at 49 U.S.C. § 5323(j)(2)(C) and 49 C.F.R. § 661.11. Rolling stock not subject to a general waiver must be manufactured in the United States and have 70 percent or more domestic content.

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

CARGO PREFERENCE REQUIREMENTS

46 U.S.C. § 55305 46 C.F.R. Part 381

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

Applies to: Contractors and subcontractors.

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

1. To use privately owned United States-Flag commercial vessels to ship at least

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

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.)

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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.

ENERGY CONSERVATION REQUIREMENTS

42 U.S.C. §§ 6321–6327 49 C.F.R. Part 622 Subpart C

Applicable to: All contracts.

Applies to: Contractors and subcontractors.

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

ENVIRONMENTAL REQUIREMENTS

Applicable to: All contracts and subcontracts.

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.

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

(a) Joint FHWA and FTA final guidance, “Interim Guidance on MAP-21 Section 1319 Accelerated Decision making 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.

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(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.

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.

(1) Mitigation of Adverse Environmental Effects. 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.

h. Clean Air & Water Pollution Control Act

The Contractor agrees:

(1) It will not use any violating facilities;

(2) It will report the use of facilities placed on or likely to be placed on the U.S.

EPA “List of Violating Facilities;”

(3) It will report violations of use of prohibited facilities to FTA; and

(4) It will comply with the inspection and other requirements of the Clean Air

Act, as amended, (42 U.S.C. §§ 7401 – 7671q); and the Federal Water Pollution Control Act as amended, (33 U.S.C. §§ 1251-1387).

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

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LOBBYING RESTRICTIONS

49 C.F.R. Part 20

Applicable to: Contracts exceeding $100,000.

Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any WTA, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C.

1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-Federal funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient.

ACCESS TO RECORDS AND REPORTS

49 U.S.C. § 5325

Former 49 C.F.R. § 18.36 (i) 49 C.F.R. § 633.17

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/subrecipient of SAMTD in accordance with 49 C.F.R. § 18.36(i), the Contractor agrees to provide SAMTD, the FTA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions.

Contractor also agrees, pursuant to 49 C.F.R. § 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. § 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. §§ 5307, 5309, or 5311.

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

3. The Contractor agrees to permit any of the foregoing parties to reproduce by any

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4. The Contractor agrees to maintain all books, records, accounts, and reports required under this contract for a period of not less than seven (7) years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until SAMTD, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives have disposed of all such litigation, appeals, claims, or exceptions related thereto. Reference 49 C.F.R. § 18.39(i)(11).

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

CHANGES TO FEDERAL REQUIREMENTS

Former 49 C.F.R. Part 18

Applicable to: All contracts.

Applies to: Contractors and subcontractors.

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.

RECOVERED MATERIALS & SOLID WASTE

42 U.S.C. § 6962

40 C.F.R. Part 247

Applicable to: All contracts for items designated by the EPA on contracts for materials, supplies, construction and/or operations management,, when the purchaser or contractor procures $10,000 or more of one of these items during the fiscal year, or has procured $10,000 or more of such items in the previous fiscal year, using Federal funds.

The Contractor agrees to provide a preference for those products and services that conserve natural resources, protect the environment, and are energy efficient by complying with and facilitating compliance with Section 6002 of the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 6962, and U.S.

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Environmental Protection Agency (U.S. EPA), “Comprehensive Procurement Guideline for Products Containing Recovered Materials,” 40 C.F.R. part 247.

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.

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

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

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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.

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: 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 Insolvency: Notwithstanding anything to the contrary, a Party shall have the right to terminate this Agreement if the other Party (a) terminates or suspends its business, (b) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute, (c) becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority,

(d) has wound up its business or is liquidated, voluntarily or otherwise (e) assigns the contract obligations to another Party.

3. Termination for Default: 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

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4. Opportunity to Cure: SAMTD in its sole discretion may, in the case of a termination for breach or default, allow the Contractor thirty (30) calendar days in which to cure the defect unless otherwise agreed on by SAMTD staff in writing.

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.

5. 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.

6. Contractor’s Independent Obligation to Perform: Because of the critical importance of the obligations undertaken by Contractor under this Agreement to the operations of SAMDT, the substantial expertise that Contractor has represented it shall utilize in connection with the fulfillment of such obligations and the reliance of SAMDT on such expertise for the fulfillment of its business objectives, Contractor assumes an independent obligation to continue performance of its obligations in all respects regardless of any dispute that may arise between SAMDT and Contractor in connection with any claims by Contractor that SAMDT has materially breached its obligations under this Agreement. This independent obligation shall continue for one hundred and eighty (180) days from the date upon which SAMDT receives written notice of such alleged breach from Contractor. Contractor undertakes this independent obligation without prejudice to any rights or remedies it may otherwise have in connection with any dispute between Contractor and SAMDT.

GOVERNMENT-WIDE DEBARMENT AND SUSPENSION

2 C.F.R. Part 180 2 C.F.R. Part 2100

Applicable to: All contracts and subcontracts in excess of $25,000.

The Contractor shall comply and facilitate compliance with U.S. DOT regulations, “Nonprocurement Suspension and Debarment,” 2 C.F.R. part 1200, which adopts and supplements the U.S. Office of Management and Budget (U.S. OMB) “Guidelines to

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Agencies on Governmentwide Debarment and Suspension (Nonprocurement),” 2 C.F.R. part 180. These provisions apply to each contract at any tier of $25,000 or more, and to each contract at any tier for a federally required audit (irrespective of the contract amount), and to each contract at any tier that must be approved by an FTA official irrespective of the contract amount. As such, 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:

1) Debarred from participation in any federally assisted Award;

2) Suspended from participation in any federally assisted Award;

3) Proposed for debarment from participation in any federally assisted Award;

4) Declared ineligible to participate in any federally assisted Award;

5) Voluntarily excluded from participation in any federally assisted Award; or

6) Disqualified from participation in ay federally assisted Award.

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

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 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.

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

The Contractor agrees to the following, and also agrees to include these 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

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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, sexual orientation, gender identity, 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 the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, disability, or age,

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:

a. Comply with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §

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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,”

BREACHES AND DISPUTE RESOLUTION

FTA Circular 4220.1F

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

Applies to: Contractors and subcontractors.

Disputes - Disputes arising in the performance of this Contract, which are not resolved by agreement of the parties, shall be decided through mediation as out outlined in Appendix A – General Terms and Conditions. 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.

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

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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.

PATENT AND RIGHTS IN DATA

35 U.S.C. §§ 200 – 212 37 C.F.R. Part 401

Applicable to: All contracts for professional services involving research and development of a good or service for the agency, or contracts for IT software.

Applies to: Contractors and subcontractors.

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 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.

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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 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

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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.

EMPLOYEE PROTECTIVE AGREEMENTS

49 U.S.C. § 5310, § 5311, and § 5333 29 C.F.R. Part 215

Applicable to: All contracts as applicable.

Applies to: Contractors and subcontractors

Non-Construction Service or Labor Contracts

Contractor will comply with all federal laws, regulations, and requirements providing wage and hour protections for nonconstruction employees, including Section 102 of the Contract Work Hours and Safety Standards Act, as amended, 40 U.S.C. § 3702, and other relevant parts of that Act, 40 U.S.C. § 3701, et seq., and U.S. DOL regulations, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act),” 29 CFR Part 5.

Contractor will comply with the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. to the extent that the FLSA applies to employees performing work with federal assistance provided through the Underlying Agreement involving commerce, and as the

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Federal Government otherwise determines applicable.

DISADVANTAGED BUSINESS ENTERPRISE (DBE)

49 C.F.R. Part 26

Section 1101(b) of the FAST Act

Applicable to: All contracts.

Applies to: Contractors and subcontractors

This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The national goal for DBE participation is 10%. SAMTD’s overall goal for DBE participation is 2.49%. A separate contract goal has not been established for this procurement.

A DBE must be certified by the Certification Office for Business Inclusion and Diversity.

https://oregon4biz.diversitysoftware.com/. DBE firms shall have equal opportunity to compete for and perform as prime contractors, suppliers, or as subcontractors through another awarded contractor.

A. DBE and Small Business Enterprise (SBE) outreach and use is required for this contract. Proposers are required to make good faith efforts in recruiting DBE’s and SBE’s in the preparation of their bids Examples of good faith efforts to be demonstrated and documented by the prime contractor include, but are not limited to the following:

1. Attendance at any pre-solicitation or pre-bid meetings that were scheduled by

SAMTD to inform DBEs of contracting and subcontracting opportunities

2. Advertisement in general circulation, trade association and minority-focused media concerning the sub-contracting opportunities

3. Provision of written notice to a reasonable number of specific DBEs that their interest in the contract was being solicited, in sufficient time to allow the DBE to participate effectively (and documenting the contact)

4. Follow-up of initial solicitations of interest by contacting DBEs to determine with certainty whether the DBEs were interested

5. Provision to interested DBEs of adequate information about the plans, specifications and requirements of the contract (and maintaining record of such contract)

6. Negotiation in good faith with interested DBEs not rejecting DBEs as unqualified without sound reasons based on a thorough investigation of their capabilities (and be able to document any “unqualified”)

7. Soliciting the aid of available minority community organizations; minority contractors’ groups, local, state and federal minority business assistance officers;

and other organizations that provide assistance in the recruitment and placement of DBEs (and be able to furnish records of such solicitation).

8. Efforts to select portions of the work proposed to be performed to increase the likelihood of DBE Participation

9. Efforts to negotiate for specific sub Proposals, including at a minimum:

a. The name, address, or telephone num¬ber of each DBE contacted;

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b. A description of the information provided regarding the plans and specifications for the portions of the work to be performed;

c. A statement of why additional agreements were not reached;

d. Reasons for rejecting as unqualified any DBE contacted

10. Use of the Oregon Department of Consumer & Business Services Certified DBE Directory

11. Efforts to provide assistance in obtaining any necessary bonding or insurance;

12. Efforts to use the service of banks owned and controlled by minorities or women;

13. Efforts to assist the DBE in purchasing materials and supplies; and

14. Any other affirmative action efforts

Contractor Requirements

A. Reporting Requirements: The Contractor will be required to report its DBE participation obtained through race-neutral means throughout the period of contract performance. This report will include, the business name and address, amount of the sub-contract, amount and date of payments.

Proposers are required to document all good faith efforts at utilizing DBE’s and SBE’s (Outreach & Participation Schedule). Good faith efforts will be maintained and available upon request. A separate DBE Unavailability Certification is required for each DBE contractor contacted but unable to participate in the project.

Proposers will submit, with their proposal, a Determination of Good Faith Effort. Failure to include the determination will be cause for proposal rejection.

A Statement of Intent is required from all DBE’s that will be subcontracted work on this contract

The successful contractor will be required to submit a Prompt Payment Certification (provided to awarded contractor) and supporting documentation with each Progress Payment. SAMTD’s DBELO reserves the right to interview subcontractors to verify the information submitted on the Certification.

B. Prompt Payment: The prime contractor agrees to pay each subcontractor, if applicable, under this prime contract for the satisfactory performance of its contract no later than ten (10) days from the receipt of each payment the prime contractor receives from SAMTD. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of WTA. This clause applies to both DBE and non- DBE sub-contractors.