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Rev. 05/2021
FTA Master Agreement FY 2021 dated February 9, 2021
SECTION V - FEDERAL TRANSIT ADMINISTRATION (FTA) CLAUSES
Contractor shall comply with the following FTA requirements.
5.1.
NO GOVERNMENT OBLIGATION TO THIRD PARTIES
These requirements do not apply to micro-purchases ($10,000 or less, except for
construction contracts over $2,000).
The AGENCY and Contractor acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation of this
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 AGENCY, Contractor or any other party (whether or not a
party to that Contract) pertaining to any matter resulting from the underlying Contract.
The Contractor agrees to include the above clause in each subcontract financed in
whole or in part with Federal assistance provided by the FTA. It is further agreed that
the clause shall not be modified, except to identify the subcontractor who will be subject
to its provisions.
5.2.
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED
ACTS
These requirements do not apply to micro-purchases ($10,000 or less, except for
construction contracts over $2,000).
The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies
Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, "Program
Fraud Civil Remedies," 49 CFR part 31, apply to its actions pertaining to this Project.
Upon execution of the underlying Contract, the Contractor certifies or affirms the
truthfulness and accuracy of any statement it has made, it makes, it may make, or
causes to be made, pertaining to the underlying Contract or the FTA assisted project for
which this contract work is being performed. In addition to other penalties that may be
applicable, the Contractor further acknowledges that if it makes, or causes to be made, a
false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal
Government reserves the right to impose the penalties of the Program Fraud Civil
Remedies Act of 1986 on the Contractor to the extent the Federal Government deems
appropriate.
The Contractor also acknowledges that if it makes, or causes to be made, a false,
fictitious, or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in part
with Federal assistance originally awarded by FTA under the authority of 49 U.S.C.
chapter 53, the Government reserves the right to impose the penalties of 18 U.S.C. §
1001 and 49 U.S.C. § 5323(l) on the Contractor, to the extent the Federal Government
deems appropriate.
The Contractor agrees to include the above two paragraphs 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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5.3.
ACCESS TO RECORDS AND REPORTS
A. Record Retention
The Contractor will retain, and will require its subcontractors of all tiers to retain,
complete and readily accessible records related in whole or in part to the
contract, including, but not limited to, data, documents, reports, statistics, sub-
agreements, leases, subcontracts, arrangements, other third party agreements of
any type, and supporting materials related to those records.
B. Retention Period
The Contractor agrees to comply with the record retention requirements in
accordance with 2 CFR § 200.333. The Contractor shall maintain all books,
records, accounts and reports required under this Contract for a period of at not
less than three (3) years after the date of termination or expiration of this
Contract, except in the event of litigation or settlement of claims arising from the
performance of this Contract, in which case records shall be maintained until the
disposition of all such litigation, appeals, claims or exceptions related thereto.
C. Access to Records
The Contractor agrees to provide sufficient access to FTA and its contractors to
inspect and audit records and information related to performance of this contract
as reasonably may be required.
D. Access to the Sites of Performance
The Contractor agrees to permit FTA and its contractors access to the sites of
performance under this Contract as reasonably may be required.
5.4.
FEDERAL CHANGES
Contractor shall at all times comply with all applicable FTA regulations, policies,
procedures and directives, including without limitation those listed directly or by
reference in the FTA Master Agreement between the City of Phoenix and the FTA, as
they may be amended or promulgated from time to time during the term of the Contract.
Contractor’s failure to so comply shall constitute a material breach of the Contract.
5.5.
CIVIL RIGHTS LAWS AND REGULATIONS
The AGENCY is an Equal Opportunity Employer. As such, the AGENCY agrees to
comply with all applicable Federal civil rights laws and implementing regulations. Apart
from inconsistent requirements imposed by Federal laws or regulations, the AGENCY
agrees to comply with the requirements of 49 U.S.C. § 5323(h) (3) by not using any
Federal assistance awarded by FTA to support procurements using exclusionary or
discriminatory specifications.
Under this Contract, the Contractor shall at all times comply with the following
requirements and shall include these requirements in each subcontract entered into as
part thereof.
A. Nondiscrimination
In accordance with Federal transit law at 49 U.S.C. § 5332, the Contractor
agrees that it will not discriminate against any employee or applicant for
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employment because of race, color, religion, national origin, sex, disability, or
age. In addition, the Contractor agrees to comply with applicable Federal
implementing regulations and other implementing requirements FTA may issue.
B. Race, Color, Religion, National Origin, Sex
In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. §
2000e et seq., and Federal transit laws at 49 U.S.C. § 5332, the Contractor
agrees to comply with all applicable equal employment opportunity requirements
of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract
Compliance Programs, Equal Employment Opportunity, Department of Labor,"
41 CFR chapter 60, and 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. The Contractor agrees to take affirmative
action to ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, color, religion, national origin, or
sex (including sexual orientation and gender identity). Such action shall include,
but not be limited to, the following: employment, promotion, demotion or transfer,
recruitment or recruitment advertising, layoff or termination; rates of pay or other
forms of compensation; and selection for training, including apprenticeship. In
addition, the Contractor agrees to comply with any implementing requirements
FTA may issue.
C. Age
In accordance with the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-
634, U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations,
“Age Discrimination in Employment Act,” 29 CFR part 1625, the Age
Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S. Health
and Human Services regulations, “Nondiscrimination on the Basis of Age in
Programs or Activities Receiving Federal Financial Assistance,” 45 CFR part 90,
and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from
discrimination against present and prospective employees for reason of age. In
addition, the Contractor agrees to comply with any implementing requirements
FTA may issue.
D. Disabilities
In accordance with Section 504 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42
U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42
U.S.C. § 4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the
Contractor agrees that it will not discriminate against individuals on the basis of
disability. In addition, the Contractor agrees to comply with any implementing
requirements FTA may issue.
5.6.
INCORPORATION OF FTA TERMS
These requirements do not apply to micro-purchases ($10,000 or less, except for
construction contracts over $2,000).
The preceding provisions include, in part, certain Standard Terms and Conditions required
by the U.S. Department of Transportation (DOT), whether or not expressly set forth in the
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preceding contract provisions. All contractual provisions required by DOT, as set forth in
FTA Circular 4220.1F, and are hereby incorporated by reference. Anything to the contrary
herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of
a conflict with other provisions contained in the contract. Contractor shall not perform any
act, fail to perform any act, or refuse to comply with any requests of the AGENCY that
would cause the AGENCY to be in violation of the FTA terms and conditions.
The Contractor agrees to include the above clause in each subcontract financed in whole
or in part with Federal assistance provided by the FTA.
5.7.
FREE SPEECH AND RELIGIOUS LIBERTY
All Federal funding must be expended in full accordance with the U.S. Constitution,
Federal Law, and statutory and public policy requirements, including but not limited to
those prohibiting discrimination and protecting free speech, religious liberty, public
welfare, and the environment.
5.8.
FEDERAL TERMINATION RIGHTS
The termination rights under this Agreement are in addition to, and in no way limit, the
Federal Government’s right to terminate as described in 2 CFR § 200.340.
5.9.
GOVERNMENT-WIDE DEBARMENT AND SUSPENSION
This requirement does not apply to contracts and subcontracts under $25,000.
Debarment, Suspension, Ineligibility and Voluntary Exclusion
The Contractor shall comply and facilitate compliance with U.S. DOT regulations, “Non-
procurement Suspension and Debarment,” 2 CFR part 1200, which adopts and
supplements the U.S. Office of Management and Budget (U.S. OMB) “Guidelines to
Agencies on Government-Wide Debarment and Suspension (Non-procurement),” 2 CFR
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:
A. Debarred from participation in any federally assisted Award;
B. Suspended from participation in any federally assisted Award;
C. Proposed for debarment from participation in any federally assisted Award;
D. Declared ineligible to participate in any federally assisted Award;
E. Voluntarily excluded from participation in any federally assisted Award; or
F. Disqualified from participation in any federally assisted Award.
By signing and submitting its bid or proposal, the bidder or proposer certifies as follows:
The certification in this clause is a material representation of fact relied upon by the
AGENCY. If it is later determined by the AGENCY that the Contractor knowingly
rendered an erroneous certification, in addition to remedies available to the AGENCY,
the Federal Government may pursue available remedies, including but not limited to
suspension and/or debarment. The Contractor agrees to comply with the requirements
of 2 CFR part 180, subpart C, as supplemented by 2 CFR part 1200, while this offer is
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valid and throughout the period of any contract that may arise from this offer. The
Contractor further agrees to include a provision requiring such compliance in its lower
tier covered transactions.
5.10. TERMINATION
Subrecipients must include provisions in their contracts and subcontracts that allows for
termination for cause and for convenience by the subrecipient, including the manner by
which it will be effected and the basis for settlement. See Appendix II(B) to 2 CFR part
200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards, and
FTA Circular 4220.1F, Chapter IV, paragraph 2.b.(6)(b)4 – Termination.
5.11. VIOLATION AND BREACH OF CONTRACT
These requirements are not applicable to contracts and subcontracts under the
simplified acquisition threshold (currently set at $250,000).
Unless otherwise provided for by the AGENCY, the following provisions shall apply:
Dispute Resolution: Disputes arising in the performance of this Contract that are not
resolved by agreement of the parties shall be decided in writing by the authorized
representative of AGENCY. This decision shall be final and conclusive unless within ten
(10) calendar days from the date of receipt of its copy, Contractor mails or otherwise
furnishes a written appeal to the authorized representative of AGENCY. In connection
with any such appeal, Contractor shall be afforded an opportunity to be heard and to
offer evidence in support of its position. The decision of the authorized representative of
AGENCY shall be binding upon Contractor, and Contractor shall abide by the decision.
Performance During Disputes: Contractor agrees that notwithstanding the existence of
any dispute between the parties, insofar as is possible, under the terms of the Contract,
Contractor will continue to perform the obligations required of Contractor during the
continuation of any such dispute unless enjoined or prohibited by an Arizona Court of
competent jurisdiction.
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 the AGENCY or Contractor shall constitute a
waiver of any right or duty afforded any of them under this 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 upon in writing.
5.12. LOBBYING RESTRICTIONS (Include certification form)
These requirements do not apply to contracts and subcontracts under $100,000.
Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying
Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] -
Contractors who apply or bid for an award of $100,000 or more shall file the certification
required by 49 CFR part 20, "New Restrictions on Lobbying." Each tier certifies to the
tier above that it will not and has not used Federal appropriated funds to pay any person
or organization for influencing or attempting to influence an officer or employee of any
agency, a member of Congress, officer or employee of Congress, or an employee of a
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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.
5.13. CARGO PREFERENCE REQUIREMENTS
These requirements apply to all contracts involving equipment, material, or commodities
that may be transported by ocean vessels.
Cargo Preference - Use of United States-Flag Vessels
The contractor agrees:
A. 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;
B. To furnish within 20 working days following the date of loading for shipments
originating within the United States or within 30 working 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, DC 20590
and to the FTA recipient (through the contractor in the case of a subcontractor's
bill-of-lading.); and
C. To include these requirements in all subcontracts issued pursuant to this contract
when the subcontract may involve the transport of equipment, material, or
commodities by ocean vessel.
5.14. FLY AMERICA
These requirements apply to contracts and subcontracts involving the transportation of
persons or property by air between a place in the United States and a place outside of
the United States, or between places outside the United States, when the FTA will
participate in the cost of such air transportation.
Fly America Requirements
A. Definitions. As used in this clause--
“International air transportation” means transportation by air between a place in
the United States and a place outside the United States or between two places
both of which are outside the United States.
“United States” means the 50 States, the District of Columbia, and outlying
areas.
“U.S.-flag air carrier” means an air carrier holding a certificate under 49 U.S.C.
Chapter 411.
B. When Federal funds are used to fund travel, Section 5 of the International Air
Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 40118) (Fly
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America Act) requires contractors, recipients, and others use U.S.-flag air
carriers for U.S. Government-financed international air transportation of
personnel (and their personal effects) or property, to the extent that service by
those carriers is available. It requires the Comptroller General of the United
States, in the absence of satisfactory proof of the necessity for foreign-flag air
transportation, to disallow expenditures from funds, appropriated or otherwise
established for the account of the United States, for international air
transportation secured aboard a foreign-flag air carrier if a U.S.-flag air carrier is
available to provide such services.
C. If available, the Contractor, in performing work under this contract, shall use
U.S.-flag carriers for international air transportation of personnel (and their
personal effects) or property.
D. In the event that the Contractor selects a carrier other than a U.S.-flag air carrier
for international air transportation, the Contractor shall include a statement on
vouchers involving such transportation essentially as follows:
Statement of Unavailability of U.S. - Flag Air Carriers - International air
transportation of persons (and their personal effects) or property by U.S.-flag
air carrier was not available or it was necessary to use foreign-flag air carrier
service for the following reasons. See FAR § 47.403. [State reasons]:
_____________________________________________
(End of statement)
E. The Contractor shall include the substance of this clause, including this
paragraph (E), in each subcontract or purchase under this contract that may
involve international air transportation.
5.15. EMPLOYEE PROTECTIONS
Prevailing Wage and Anti-Kickback
These requirements apply to all prime construction, alteration, or repair contracts in
excess of $2,000.
For all prime construction, alteration or repair contracts in excess of $2,000 awarded by
FTA, the Contractor shall comply with the Davis-Bacon Act and the Copeland “Anti-
Kickback” Act. Under 49 U.S.C. § 5333(a), prevailing wage protections apply to laborers
and mechanics employed on FTA assisted construction, alteration, or repair projects.
The Contractor will comply with the Davis-Bacon Act, 40 U.S.C. §§ 3141-3144, and
3146-3148 as supplemented by DOL regulations at 29 CFR part 5, “Labor Standards
Provisions Applicable to Contracts Governing Federally Financed and Assisted
Construction.” In accordance with the statute, the Contractor shall pay wages to laborers
and mechanics at a rate not less than the prevailing wages specified in a wage
determination made by the Secretary of Labor. In addition, the Contractor agrees to pay
wages not less than once a week. The Contractor shall also comply with the Copeland
“Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by DOL regulations at 29 CFR
part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in
Whole or in part by Loans or Grants from the United States.” The Contractor is
prohibited from inducing, by any means, any person employed in the construction,
completion, or repair of public work, to give up any part of the compensation to which he
or she is otherwise entitled.
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Contract Work Hours and Safety Standards
These requirements apply to all contracts involving construction in excess of $100,000
that involve the employment of mechanics or laborers.
For all contracts in excess of $100,000 that involve the employment of mechanics or
laborers, the Contractor shall comply with the Contract Work Hours and Safety
Standards Act (40 U.S.C. §§ 3701-3708), as supplemented by the DOL regulations at 29
CFR part 5. Under 40 U.S.C. § 3702 of the Act, the Contractor shall compute the wages
of every mechanic and laborer, including watchmen and guards, on the basis of a
standard work week of 40 hours. Work in excess of the standard work week is
permissible provided that the worker is compensated at a rate of not less than one and a
half times the basic rate of pay for all hours worked in excess of 40 hours in the work
week. The requirements of 40 U.S.C. § 3704 are applicable to construction work and
provide that no laborer or mechanic be required to work in surroundings or under
working conditions which are unsanitary, hazardous or dangerous. These requirements
do not apply to the purchase of supplies or materials or articles ordinarily available on
the open market, or to contracts for transportation or transmission of intelligence.
In the event of any violation of the clause set forth herein, the Contractor and any
subcontractor responsible therefor shall be liable for the unpaid wages. In addition, the
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 this clause in the sum of $10 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 this clause.
The FTA 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 this section.
The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in
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 this
agreement.
Contract Work Hours and Safety Standards for Awards Not Involving Construction
These requirements apply to all contracts (not involving construction) in excess of
$100,000 that involve the employment of mechanics or laborers.
The Contractor shall comply with all federal laws, regulations, and requirements
providing wage and hour protections for non-construction employees, in accordance with
40 U.S.C. § 3702, Contract Work Hours and Safety Standards Act, and other relevant
parts of that Act, 40 U.S.C. § 3701 et seq., and U.S. DOL regulations, “Labor Standards
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Provisions Applicable to Contracts Covering Federally Financed and Assisted
Construction (also Labor Standards Provisions Applicable to Non-construction Contracts
Subject to the Contract Work Hours and Safety Standards Act),” 29 CFR part 5.
The Contractor shall maintain payrolls and basic payroll records during the course of the
work and shall preserve them for a period of three (3) years from the completion of the
contract for all laborers and mechanics, including guards and watchmen, working on the
contract. Such records shall contain the name and address of each such employee,
social security number, correct classifications, hourly rates of wages paid, daily and
weekly number of hours worked, deductions made, and actual wages paid.
Such records maintained under this paragraph shall be made available by the Contractor
for inspection, copying, or transcription by authorized representatives of the FTA and the
Department of Labor, and the Contractor will permit such representatives to interview
employees during working hours on the job.
The Contractor shall require the inclusion of the language of this clause within
subcontracts of all tiers.
5.16. SEISMIC SAFETY
These requirements apply only to contracts for the construction of new buildings or
additions to existing buildings.
The Contractor agrees that any new building or addition to an existing building will be
designed and constructed in accordance with the standards for Seismic Safety required in
Department of Transportation (DOT) Seismic Safety Regulations 49 CFR part 41 and will
certify to compliance to the extent required by the regulation. The Contractor also agrees
to ensure that all work performed under this Contract, including work performed by a
subcontractor, is in compliance with the standards required by the Seismic Safety
regulations and the certification of compliance issued on the project.
5.17. VETERANS EMPLOYMENT
These requirements apply only to capital projects (see 49 USC Section 5302,
Subsection 3).
Contractor shall give a hiring preference, to the extent practicable, to veterans (as
defined in U.S.C. Section 2108 of title 5) who have the requisite skills and abilities to
perform the construction work required under the Contract. This requirement shall not be
understood, construed or enforced in any manner that would require an employer to give
a preference to any veteran over any equally qualified applicant who is a member of any
racial or ethnic minority, female, an individual with a disability, or a former employee.
5.18. BONDING
These requirements are applicable to all construction or facility improvement contracts
and subcontracts exceeding the simplified acquisition threshold (currently set at
$250,000). See FTA Circular C 4220.1F for specific bonding requirements.
Bonds are required for all construction or facility improvement contracts and
subcontracts exceeding the simplified acquisition threshold. FTA may accept the
bonding policy and requirements of the recipient if FTA has determined that the Federal
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interest is adequately protected. If such a determination has not been made, the
following minimum requirements apply:
A. A bid guarantee from each bidder equivalent to five percent of the bid price. The
“bid guarantee” must consist of a firm commitment such as a bid bond, certified
check, or other negotiable instrument accompanying a bid as assurance that the
bidder will, upon acceptance of the bid, execute such contractual documents as
may be required within the time specified.
B. A performance bond on the part of the contractor for 100 percent of the contract
price. A “performance bond” is one executed in connection with a contract to
secure fulfillment of all the contractor's obligations under such contract.
C. A payment bond on the part of the contractor for 100 percent of the contract
price. A “payment bond” is one executed in connection with a contract to assure
payment as required by law of all persons supplying labor and material in the
execution of the work provided for in the contract.
5.19. Public Transportation Employee Protective Arrangements
These requirements apply only to contracts for transit operations performed by
employees of contractors and subcontractors recognized by FTA to be a transit operator.
The Contractor agrees to comply with the following employee protective arrangements of
49 U.S.C. § 5333(b):
A. U.S. DOL Certification. Under this Contract or any Amendments thereto that
involve public transportation operations that are supported with federal
assistance, a certification issued by U.S. DOL is a condition of the Contract.
B. Special Warranty. When the Contract involves public transportation operations
and is supported with federal assistance appropriated or made available for 49
U.S.C. § 5311, U.S. DOL will provide a Special Warranty for its Award, including
its Award of federal assistance under the Tribal Transit Program. The U.S. DOL
Special Warranty is a condition of the Contract.
C. Special Arrangements. The conditions of 49 U.S.C. § 5333(b) do not apply to
Contractors providing public transportation operations pursuant to 49 U.S.C. §
5310. FTA reserves the right to make case-by-case determinations of the
applicability of 49 U.S.C. § 5333(b) for all transfers of funding authorized under
title 23, United States Code (flex funds), and make other exceptions as it deems
appropriate, and, in those instances, any special arrangements required by FTA
will be incorporated herein as required.
5.20. CHARTER SERVICE
These requirements apply to contracts for operating public transportation service.
The Contractor agrees to comply with 49 U.S.C. 5323(d), 5323(r), and 49 CFR part 604,
which provides that recipients and sub-recipients of FTA assistance are prohibited from
providing charter service using federally funded equipment or facilities if there is at least
one private charter operator willing and able to provide the service, except as permitted
under:
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•
Federal transit laws, specifically 49 U.S.C. § 5323(d);
•
FTA regulations, “Charter Service,” 49 CFR part 604;
•
Any other federal Charter Service regulations; or
•
Federal guidance, except as FTA determines otherwise in writing.
The Contractor agrees that if it engages in a pattern of violations of FTA’s Charter
Service regulations, FTA may require corrective measures or impose remedies on it.
These corrective measures and remedies may include:
•
Barring it or any subcontractor operating public transportation under its Award
that has provided prohibited charter service from receiving federal assistance
from FTA;
•
Withholding an amount of federal assistance as provided by Appendix D to part
604 of FTA’s Charter Service regulations; or
•
Any other appropriate remedy that may apply.
The Contractor should also include the substance of this clause in each subcontract that
may involve operating public transit services.
5.21. SCHOOL BUS OPERATIONS
These requirements apply to contracts for operating public transportation service.
The Contractor agrees to comply with 49 U.S.C. 5323(f), and 49 CFR part 604, and not
engage in school bus operations using federally funded equipment or facilities in
competition with private operators of school buses, except as permitted under:
•
Federal transit laws, specifically 49 U.S.C. § 5323(f);
•
FTA regulations, “School Bus Operations,” 49 CFR part 605;
•
Any other Federal School Bus regulations; or
•
Federal guidance, except as FTA determines otherwise in writing.
If Contractor violates this School Bus Agreement, FTA may:
•
Bar the Contractor from receiving Federal assistance for public transportation; or
•
Require the contractor to take such remedial measures as FTA considers
appropriate.
When operating exclusive school bus service under an allowable exemption, the
Contractor may not use federally funded equipment, vehicles, or facilities. The
Contractor should include the substance of this clause in each subcontract or purchase
under this Contract that may operate public transportation services.
5.22. SAFE OPERATIONS OF MOTOR VEHICLES
Seat Belt Use
The Contractor is encouraged to adopt and promote on-the-job seat belt use policies
and programs for its employees and other personnel that operate company-owned
vehicles, company- rented vehicles, or personally operated vehicles. The terms
“company-owned” and “company-leased” refer to vehicles owned or leased either by the
Contractor or AGENCY.
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Distracted Driving
The Contractor agrees to adopt and enforce workplace safety policies to decrease
crashes caused by distracted drivers, including policies to ban text messaging while
using an electronic device supplied by an employer, and driving a vehicle the driver
owns or rents, a vehicle Contactor owns, leases, or rents, or a privately-owned vehicle
when on official business in connection with the work performed under this agreement.
5.23. ENCOURAGING CONTRACTOR POLICIES TO BAN TEXT MESSAGING WHILE
DRIVING
These requirements do not apply to micro-purchases ($10,000 or less, except for
construction contracts over $2,000).
Definitions.
As used in this clause:
"Driving" means operating a motor vehicle on an active roadway with the motor running,
including while temporarily stationary because of traffic, a traffic light, stop sign, or
otherwise. "Driving" does not include operating a motor vehicle with or without the motor
running when one has pulled over to the side of, or off, an active roadway and has
halted in a location where one can safely remain stationary.
“Text messaging” means reading from or entering data into any handheld or other
electronic device, including for the purpose of short message service texting, e-mailing,
instant messaging, obtaining navigational information, or engaging in any other form of
electronic data retrieval or electronic data communication. The term does not include
glancing at or listening to a navigational device that is secured in a commercially
designed holder affixed to the vehicle, provided that the destination and route are
programmed into the device either before driving or while stopped in a location off the
roadway where it is safe and legal to park.
Executive Order
This clause implements Executive Order 13513, Federal Leadership on Reducing Text
Messaging While Driving, dated October 1, 2009.
Contractor is encouraged to:
A. Adopt and enforce policies that ban text messaging while driving:
1. Company-owned or rented vehicles or Government-owned vehicles; or
2. Privately-owned vehicles when on official Government business or when
performing any work for or on behalf of the Government.
B. Conduct initiatives in a manner commensurate with the size of the business,
such as:
1. Establishment of new rules and programs or reevaluation of existing
programs to prohibit text messaging while driving; and
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2. Education, awareness, and other outreach to employees about the safety
risks associated with texting while driving.
Subcontracts
Contractor shall insert the substance of this clause, including this paragraph, in all
subcontracts that exceed the micro-purchase threshold, as defined in Federal
Acquisition Regulation 2.101 on the date of subcontract award.
5.24. SUBSTANCE ABUSE REQUIREMENTS
These requirements apply to contracts with contractors who perform safety-sensitive
functions, as defined in 49 CFR Part 655.4, “Definitions.”
Contractor shall establish and implement a drug and alcohol testing program that
complies with “Procedures for Transportation Workplace Drug and Alcohol Testing
Programs” (49 CFR Part 40) and “Prevention of Alcohol Misuse and Prohibited Drug Use
in Transit Operations” (49 CFR Part 655), produce any documentation necessary to
establish its compliance with parts 655 and 40, and permit any authorized representative
of the United States Department of Transportation or its operating administrations, the
State Oversight Agency of Arizona, or the City of Phoenix, to inspect the facilities and
records associated with the implementation of the drug and alcohol testing program as
required under 49 CFR part 655 and 49 CFR part 40 and review the testing process.
Contractor shall also submit for review and approval a copy of its substance abuse
prevention policy developed to implement its drug and alcohol testing program.
Contractor agrees further to certify annually its compliance with parts 655 and 40 and to
submit the Drug and Alcohol Management Information System (DAMIS) reports before
March 15 to Transit Compliance Officer, City of Phoenix Public Transit Department, 302
N. 1st Avenue, Phoenix, AZ 85003. To certify compliance, the Contractor shall use the
"Substance Abuse Certifications" in the "Annual List of Certifications and Assurances for
Federal Transit Administration Grants and Cooperative Agreements," which is published
annually in the Federal Register.
5.25. BUY AMERICA (Include certification form)
These requirements apply to contracts over $150,000 if they involve the purchase of
iron, steel, manufactured goods, or rolling stock.
Contractor agrees to comply with 49 U.S.C. 5323(j) and 49 CFR part 661, which provide
that Federal funds may not be obligated unless all steel, iron, and manufactured products
used in FTA funded projects are produced in the United States, unless a waiver has been
granted by FTA or the product is subject to a general waiver. General waivers are listed in
49 CFR § 661.7 and include final assembly in the United States for 15 passenger vans
and 15 passenger wagons produced by Chrysler Corporation, microcomputer equipment,
and software. Separate requirements for rolling stock are set out at 49 U.S.C.
5323(j)(2)(C) and 49 CFR § 661.11.
Contractor must submit to AGENCY the appropriate Buy America certification
below with its offer. Offers that are not accompanied by a completed Buy America
certification will be rejected as nonresponsive.
5.26. ROLLING STOCK LIMITATIONS
These requirements apply to contracts for the purchase of rolling stock.
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Contractor and its subcontractors must comply with the limitation on certain rolling stock
procurements at 49 U.S.C. § 5323(u), prohibiting the procurement of rolling stock from
specified manufacturers for public transportation use.
5.27. BUS TESTING
These requirements apply to contracts for the purchase or lease of any bus model that is
new or has any major change in configuration or components to be acquired or leased.
Contractor [Manufacturer] agrees to comply with the Bus Testing requirements under 49
U.S.C. 5318(e) and FTA's implementing regulation at 49 CFR part 665 to ensure that the
requisite testing is performed for all new bus models or any bus model with a major
change in configuration or components, and that the bus model has achieved a passing
score. Upon completion of the testing, the Contractor shall obtain a copy of the bus testing
reports from the operator of the testing facility and make that report(s) publicly available
prior to final acceptance of the first vehicle by the grantee.
5.28. PRE-AWARD AND POST-DELIVERY AUDITS OF ROLLING STOCK PURCHASES
These requirements apply to contracts for the purchase of revenue service rolling stock.
Contractor agrees to comply with 49 U.S.C. § 5323(m) and FTA's implementing regulation
at 49 CFR part 663. The Contractor shall comply with the Buy America certification(s)
submitted with its offer. The Contractor agrees to participate and cooperate in any pre-
award and post-delivery audits performed pursuant to 49 CFR part 663 and related FTA
guidance.
5.29. CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT
These requirements do not apply to contracts and subcontracts under $150,000.
The Contractor agrees:
A. It will not use any violating facilities;
B. It will report the use of facilities placed on or likely to be placed on the U.S. EPA
“List of Violating Facilities;”
C. It will report violations of use of prohibited facilities to FTA; and
D. 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).
5.30. ENERGY CONSERVATION
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.
5.31. RECYCLED PRODUCTS
These requirements apply to all contracts and subcontracts involving the purchase of
items designated by the EPA (that contain the highest percentage of recovered materials
practicable) in excess of $10,000. See 40 C.F.R part 247 for federal designation of items.
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
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facilitating compliance with Section 6002 of the Resource Conservation and Recovery Act,
as amended, 42 U.S.C. § 6962, and U.S. Environmental Protection Agency (U.S. EPA),
“Comprehensive Procurement Guideline for Products Containing Recovered Materials,” 40
CFR part 247.
5.32. PATENT RIGHTS AND RIGHTS IN DATA
These requirements apply to contracts for the performance of experimental,
developmental, or research work.
Intellectual Property Rights
This Project is funded through a Federal award with FTA for experimental,
developmental, or research work purposes. As such, certain Patent Rights and Data
Rights apply to all subject data first produced in the performance of this Contract. The
Contractor shall grant the AGENCY intellectual property access and licenses deemed
necessary for the work performed under this Agreement and in accordance with the
requirements of 37 CFR part 401, “Rights to Inventions Made by Nonprofit Organizations
and Small Business Firms Under Government Grants, Contracts and Cooperative
Agreements,” and any implementing regulations issued by FTA or U.S. DOT. The terms
of an intellectual property agreement and software license rights will be finalized prior to
execution of this Contract and shall, at a minimum, include the following restrictions:
Except for its own internal use, the Contractor may not publish or reproduce subject data
in whole or in part, or in any manner or form, nor may the Contractor authorize others to
do so, without the written consent of FTA, until such time as FTA 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. For
purposes of this agreement, the term “subject data” means recorded information whether
or not copyrighted, and that is delivered or specified to be delivered as required by the
Contract. Examples of “subject data” include, but are not limited to computer software,
standards, specifications, engineering drawings and associated lists, process sheets,
manuals, technical reports, catalog item identifications, and related information, but do
not include financial reports, cost analyses, or other similar information used for
performance or administration of the Contract.
A. 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 below.
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 the Contract, whether or not a copyright
has been obtained; and
2. Any rights of copyright purchased by the Contractor using Federal assistance
in whole or in part by the FTA.
B. Unless FTA determines otherwise, the Contractor performing experimental,
developmental, or research work required as part of this Contract 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 the 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
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subject of this Contract, is not completed for any reason whatsoever, all data
developed under the Contract shall become subject data as defined herein and
shall be delivered as the Federal Government may direct.
C. Unless prohibited by state law, upon request by the Federal Government, the
Contractor agrees 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 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. 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.
D. 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.
E. Data developed by the Contractor and financed entirely without using Federal
assistance provided by the Federal Government that has been incorporated into
work required by the underlying Contract is exempt from the requirements herein,
provided that the Contractor identifies those data in writing at the time of delivery
of the Contract work.
F. 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.
5.33. COMPLIANCE WITH NATIONAL ITS ARCHITECTURE POLICY
These requirements apply only to contracts for National Intelligent Transportation
System projects.
Contractor agrees to conform to the National Intelligent Transportation Systems (ITS)
Architecture requirements of 23 U.S.C. § 517(d), unless it obtains an exemption from
those requirements, and follow FTA Notice, “FTA National ITS Architecture Policy on
Transit Projects,” 66 Fed. Reg. 1455, January 8, 2001, and all other applicable federal
guidance.
5.34. NATIONAL TRANSIT DATABASE (NTD) REPORTING
As a condition of benefitting from federal assistance for public transportation operations,
contractor and its subcontractors must:
A. Facilitate compliance with 49 U.S.C. § 5334(a), which authorizes the National
Transit Database (NTD);
B. Conform to the NTD reporting system and the Uniform System of Accounts and
Records;
C. Comply with FTA regulations, “Uniform System of Accounts and Records and
Reporting System,” 49 CFR Part 630;
D. Report information relating to, and the condition of, its public transportation
assets, as provided in FTA regulations, “Transit Asset Management; National
Transit Database,” 49 CFR Parts 625 and 630;
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E. Comply with any other applicable reporting regulation and requirements; and
F. Follow FTA guidance.
5.35. TRAFFICKING IN PERSONS
Contractor and its subcontractors or their employees shall not:
A. Engage in severe forms of trafficking in persons during the Contract Term;
B. Procure a commercial sex act during the Contract Term; or
C. Use forced labor in the performance of the Contract.
Contractor shall inform AGENCY immediately of any information Contractor receives
from any source alleging a violation of a prohibition in this section. AGENCY may
terminate this Agreement for any violation of this section; such right of termination is in
addition to all other remedies for noncompliance that are available to the AGENCY.
5.36. CENTERS FOR DISEASE CONTROL AND PREVENTION (CDC) ORDER ON
REQUIREMENTS FOR PERSONS TO WEAR MASKS WHILE ON CONVEYANCES
AND AT TRANSPORTATION HUBS
The Contractor agrees that it will comply, and will require all subcontractors to comply,
with the CDC Mask Order of January 29, 2021, titled Requirement for Persons to Wear
Masks While on Conveyances and at Transportation Hubs (“CDC Mask Order”).
The Contractor agrees that FTA may take enforcement action for non-compliance with
the CDC Mask Order, including:
A. Enforcement actions authorized by 49 U.S.C. § 5329(g);
B. Referring the Recipient to the CDC or other Federal authority for enforcement
action;
C. Enforcement actions authorized by 2 CFR §§ 200.339 – .340; and
D. Any other enforcement action authorized by federal law or regulation.
5.37. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
(DBE requirements to be provided by PTD Compliance Section)
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FTA CERTIFICATIONS
EACH CERTIFICATION PROVIDES
INSTRUCTION DESCRIBING WHEN
THE CERTIFICATION IS APPLICABLE
INAPPLICABLE FTA CERTIFICATIONS
MAY BE LEFT BLANK
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DEBARMENT AND SUSPENSION CERTIFICATION
This certification does not apply to contracts and subcontracts under $25,000. Offers that are
not accompanied by a completed, applicable certification will be rejected as nonresponsive.
□ The Proposer certifies, to the best of its knowledge and belief, that the Proposer and its
principals:
1. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily or involuntarily excluded from covered transactions by any federal department or
agency;
2. Have not, within the preceding three years, been convicted of or had a civil judgment
rendered against them for commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public or private agreement or transaction;
violation of federal or state antitrust statutes, including those proscribing price fixing between
competitors, allocation of customers between competitors, and bid rigging; commission of
embezzlement, theft, forgery, bribery, falsification or destruction of records, making false
statements, tax evasion, receiving stolen property, making false claims, or obstruction of
justice; or commission of any other offense indicating a lack of business integrity or business
honesty;
3. Are not presently indicted for or otherwise criminally or civilly charged by a governmental
entity (federal, state, or local) with commission of any offense described in Paragraph 2 of
this certification;
4. Have not, within the preceding three years, had one or more public transactions (federal,
state, or local) terminated for cause or default.
OR
□ The Proposer is unable to certify to all of the statements in this certification, and attaches its
explanation to this certification. (In the explanation, the Proposer must certify to those
statements that can be certified and explain why the other statements cannot be certified.)
The Proposer certifies or affirms the truthfulness and accuracy of the contents of the statements
submitted on or with this certification. In addition, the Proposer understands and agrees that the
provisions of 31 USC §§ 3801 et al. are applicable to this certification.
Company: _________________________________________________________________
Name: ____________________________________________________________________
Title: _____________________________________________________________________
Signature: _________________________________________________________________
Date: _____________________________________________________________________
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LOBBYING CERTIFICATION
This certification does not apply to contracts and subcontracts under $100,000. Offers that are
not accompanied by a completed, applicable certification will be rejected as nonresponsive.
The Proposer certifies, to the best its knowledge and belief, that:
1. No federal appropriated funds have been paid or will be paid, by or on behalf of the
Proposer, to any person for influencing or attempting to influence an officer or employee
of an agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with the awarding of any federal
contract, the making of any federal grant, the making of any federal loan, the entering
into of any cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any federal contract, grant, loan, or cooperative
agreement.
2. If any funds other than federal appropriated funds have been paid or will be paid to any
person for influencing or attempting to influence an officer or employee of any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with this federal contract, grant, loan, or cooperative
agreement, the Proposer shall complete and submit Standard Form-LLL, “Disclosure
Form to Report Lobbying,” in accordance with its instructions.
3. The Proposer shall require that the language of this certification be included in the award
documents for all subawards at all tiers (including subcontracts, subgrants, and
contracts under grants, loans, and cooperative agreements) and that all subcontractors
shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for
making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any
person who fails to file the required certification shall be subject to a civil penalty of not less than
$10,000 and not more than $100,000 for each such failure.
The Proposer certifies or affirms the truthfulness and accuracy of the contents of the statements
submitted on or with this certification. In addition, the Proposer understands and agrees that the
provisions of 31 USC §§ 3801 et al. are applicable to this certification.
Company: _________________________________________________________________
Name: ____________________________________________________________________
Title: _____________________________________________________________________
Signature: _________________________________________________________________
Date: _____________________________________________________________________
Per paragraph 2 above, complete and submit Standard Form–LLL, “Disclosure Form to Report
Lobbying,” if applicable.
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TAX LIABILITY CERTIFICATION
This certificate applies to all contracts.
The Proposer, certifies that:
(a) it has no unpaid federal tax liability that has been assessed, for which all judicial and
administrative remedies have been exhausted or have lapsed, and that is not being paid
in a timely manner pursuant to an agreement with the authority responsible for collecting
the tax liability; and
(b) it has not been convicted of a felony criminal violation under any federal law within the
preceding 24 months.
The Proposer certifies or affirms the truthfulness and accuracy of the contents of the statements
submitted on or with this certification. In addition, the Proposer understands and agrees that the
provisions of 31 USC §§ 3801 et al. are applicable to this certification.
Company: _________________________________________________________________
Name: ____________________________________________________________________
Title: _____________________________________________________________________
Signature: _________________________________________________________________
Date: _____________________________________________________________________
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DISADVANTAGED BUSINESS ENTERPRISE (DBE) CERTIFICATION
This certificate applies to all contracts.
(DBE certification to be provided by PTD Compliance Section)
The Proposer certifies or affirms the truthfulness and accuracy of the contents of the statements
submitted on or with this certification. In addition, the Proposer understands and agrees that the
provisions of 31 USC §§ 3801 et al. are applicable to this certification.
Company: _________________________________________________________________
Name: ____________________________________________________________________
Title: _____________________________________________________________________
Signature: _________________________________________________________________
Date: _____________________________________________________________________