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AGREEMENT NO. __________
GRANT PASS-THRU AGREEMENT
BETWEEN
THE CITY OF PHOENIX
AND
CITY OF GLENDALE
Subrecipient SAM.gov Identification No.: JPC1A6MZZE33
Federal Award Identification Number (FAIN) No. AZ-2022-024
(49 U.S.C. Section 5307 Federal Transit Administration Funds)
This Grant Pass-Thru Agreement (“Agreement”) is made and entered into this 1st
day of July 2022 (“Effective Date”), by and between the City of Phoenix (“PHOENIX”),
a municipal corporation duly organized and existing under the laws of the State of
Arizona, and City of Glendale (“SUBRECIPIENT”), a municipal corporation duly
organized and existing under the laws of the State of Arizona. PHOENIX and
SUBRECIPIENT are sometimes referred to collectively as “PARTIES” and individually
as a “PARTY.”
RECITALS
A. PHOENIX’s City Manager is authorized and empowered by the City Charter’s
provisions to execute contracts.
B. PHOENIX has statutory and charter authority to provide transit services and
enter into agreements with other entities within the Phoenix Urban Area for
providing transit services. See A.R.S. Section 11-951, et seq.; Phoenix City
Charter Chapter 2, Section 2, Subsections (c)(i) and (l).
C. As a political subdivision of the State of Arizona, PHOENIX may contract and
enter into stipulations of any nature to do acts necessary and convenient for the
exercise of its powers. The laws of the State of Arizona authorize municipalities
to: (1) engage in any business or enterprise that may be engaged in by persons
by virtue of a franchise from the municipal corporation (see A.R.S. Section 9-
511(A)); (2) appropriate and spend public monies on activities that “will assist in
the creation or retention of jobs or will otherwise improve or enhance the
economic welfare of [its] inhabitants” (see A.R.S. Section 9-500.11); and (3) be
vested with all the powers set forth in Title 9 for incorporated towns, in their
respective charters, and in other provisions of law (see A.R.S. Section 9-499.01).
D. SUBRECIPIENT has statutory authority to exercise all of the powers granted to
municipal corporations and to cities by the Constitution and laws of the State of
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Arizona, together with all of the implied powers necessary to carry into execution
all the expressed powers granted therein and the power to enter into
intergovernmental agreements with other governmental entities. See A.R.S.
Section 11-951, et seq.
E. Transit activities are one of the types of activities authorized pursuant to the
aforementioned statutory and Charter authority and such powers do not conflict
with any of the provisions of SUBRECIPIENT’s authorizations.
F. Section 5307 of chapter 53, title 49, United States Code (formerly the Federal
Transit Act of 1964, as amended) makes financial aid available to government
entities and public transportation operators engaging in the preservation,
improvement, and operation of mass transit systems.
G. PHOENIX successfully applied to the Federal Transit Administration (“FTA”) for
a grant of Section 5307 funds, which was awarded on the 30th day of August,
2022, as FAIN No. AZ-2022-024 (“Grant”).
H. SUBRECIPIENT shall receive funds from said Grant and perform the project(s)
(“Project(s)”) described in Exhibit A-1, as attached to this Agreement and
incorporated by reference.
I. PHOENIX and SUBRECIPIENT have been authorized by their respective formal
authorities to enter into this Agreement.
AGREEMENT
IT IS HEREBY AGREED, by and between the PARTIES, as follows:
1. Agreement Term and Budget/Performance Periods.
A. The Agreement’s term is the time interval from the execution of this
Agreement to its conclusion. The Agreement’s term:
• begins on its Effective Date; and
• ends after all federal and PHOENIX requirements have been met and
PHOENIX has closed out the Grant.
Funding for any uncompleted and unbilled Projects may be reassigned at the
discretion of PHOENIX, as needed to close out the Grant. Grant close-out is
the process by which all activities approved in a grant award have been
completed and/or the federal assistance awarded has been expended for
eligible costs. PHOENIX maintains a “Master Grant Closeout Schedule” that
provides the estimated grant close-out date based on the completion dates of
each project within the grant. Within 90 days of final reimbursement,
PHOENIX will begin the grant close-out process and prepare reports,
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including a narrative of completed projects and the subrecipient’s final
reconciled budget, Federal Financial Report (“FFR”), and Milestone Progress
Report (“MPR”). Each grant is considered closed when PHOENIX has
completed and submitted the documents required for close-out and FTA has
accepted these documents. A “Grant Closure Notice and Records Retention
Requirement Letter” is prepared and distributed to each subrecipient in the
grant award.
B. The Agreement’s budget period is the time interval from the start date of a
funded portion of the award to the end date of that funded portion, during
which PHOENIX is authorized to expend the funds awarded. The
Agreement’s budget period:
•
Begins on the 1st day of July, 2022; and
•
Ends on the 30th day of September, 2025.
The Project(s) led by SUBRECIPIENT must be completed and
reimbursement must be requested by the end of the Agreement’s budget
period.
C. The Agreement’s performance period is time interval from the start of the
initial federal award to the estimated end date of performance, which may
include one or more funded portions or budget periods. The Agreement’s
performance period:
• Begins on the 1st day of July, 2022; and
• Ends on the 30th day of September, 2025.
2. Federal and Local Funding.
A. The total federal funds allocated to SUBRECIPIENT under this Agreement
shall not exceed $4,777. No reimbursements shall be made unless all
required reports, as described below, have been submitted.
B. SUBRECIPIENT shall provide the required local match for the Project(s), and
that local match is currently estimated to be $0., as detailed in Exhibit A-1.
SUBRECIPIENT shall be responsible for the full amount of any costs that
exceed the awarded Project(s) amount, such as price increases and
applicable taxes.
3. Reimbursement From Grant.
A. PHOENIX agrees to reimburse SUBRECIPIENT for its share of federal
funding allocated from the Grant for the purchase of items/services provided
in the “Project Description” box of Exhibit A-1. SUBRECIPIENT shall comply
with all requirements in 2 CFR Part 200, “Uniform Administrative
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Requirements, Cost Principles, and Audit Requirements for Federal Awards,”
which are incorporated by reference.
B. To receive reimbursement for any allowable and eligible indirect costs
awarded by and charged to the Grant, SUBRECIPIENT shall either charge: a
cost allocation plan/indirect cost rate approved by the SUBRECIPIENT’s
cognizant federal agency to be submitted by SUBRECIPIENT to PHOENIX
on an annual basis; or a de minimis rate of 10% of modified total direct costs
(“MTDC”) in accordance with 2 CFR Part 200.414. Reimbursement shall not
exceed the federal funds allocated to SUBRECIPIENT, unless approved in
writing by PHOENIX. SUBRECIPIENT acknowledges that its applicable
indirect cost rate for this Agreement was provided to PHOENIX in
SUBRECIPIENT’s Grant Application, which is incorporated by reference into
this Agreement.
4. Application for Reimbursement.
A. SUBRECIPIENT shall submit an electronic copy of its application for
reimbursement of the federal share to:
City of Phoenix Public Transit Department
Management Services Division, Grants Section
Email: ptdgrants@phoenix.gov
B. The cover letter must identify the PHOENIX contract number and the period
for which the application is submitted.
C. For any applicable reimbursements, SUBRECIPIENT shall submit its
application with the reimbursement request form shown in Exhibit B, which is
attached to this Agreement and incorporated by reference.
D. The application for reimbursement must be accompanied by detailed backup
documentation for all eligible expenses. At a minimum, the documentation
shall include the following:
1. A listing of all invoiced costs with vendors and payment dates;
2. Copies of paid invoices received from vendors for purchases of supplies
and services and corresponding proof of payment, such as cancelled
checks or bank statements; and
3. Such other documentation as PHOENIX or FTA may require, including
any reports mandated by Exhibit C, which is attached to this Agreement
and incorporated by reference.
5. SUBRECIPIENT Performance.
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A. SUBRECIPIENT shall complete the Project(s) for which the Grant’s funds
have been awarded in a proper and timely manner. SUBRECIPIENT is
responsible for complying with all federal, state, and local requirements
imposed under the Grant, including the requisites identified in Exhibit D,
Exhibit E, and Exhibit F, which are attached to this Agreement and
incorporated by reference.
B. SUBRECIPIENT must comply with all of the terms and conditions set forth in
the “FTA Master Grant Agreement” currently in effect and any subsequent
revisions, which are publicly available at transit.dot.gov/funding/grantee-
resources/sample-fta-agreements/fta-grant-agreements and incorporated into
this Agreement by reference. SUBRECIPIENT must also comply with all
conditions required for the Grant under the “Annual List of Certifications and
Assurances for FTA Grants and Cooperative Agreements” currently in effect
and any subsequent revisions, which are publicly available at
transit.dot.gov/funding/grantee-resources/certifications-and-
assurances/certifications-assurances and incorporated into this Agreement by
reference.
C. SUBRECIPIENT’s failure to comply with all applicable requirements may
result in the withholding of funds to SUBRECIPIENT under the Grant.
6. Insurance.
SUBRECIPIENT shall have adequate insurance to cover the Project(s) in the
event of damage or complete loss.
7. Indemnification.
Each PARTY (as “Indemnitor”) agrees to indemnify, defend, and hold harmless
the other PARTY (as “Indemnitee”) from and against any and all claims, losses,
liability, costs, or expenses (including reasonable attorney’s fees) (hereinafter
collectively referred to as “Claims”) arising out of bodily injury of any person
(including death) or property damage, but only to the extent that such Claims
which result in vicarious/derivative liability to the Indemnitee are caused by the
act, omission, negligence, misconduct, or other fault of the Indemnitor, its
officers, officials, agents, employees, or volunteers.
8. Notice.
A. Any notice, consent, or other communication (“Notice”) required or permitted
under this Agreement shall be in writing and either delivered in person, sent
by email, deposited in the United States mail (postage prepaid, registered or
certified mail, and return receipt requested), or deposited with any commercial
air courier or express service addressed as follows:
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If intended for SUBRECIPIENT:
Kevin Link, Transit Manager
City of Glendale
6210 W. Myrtle Avenue, Suite S
Glendale Arizona 85301-1700
Telephone: (623) 930.3508
Email: klink@glendaleaz.com
If intended for PHOENIX:
Jesús E Sapien, Public Transit Director
City of Phoenix Public Transit Department
302 N. 1st Avenue, Suite 900
Phoenix, Arizona 85003
Telephone: (602) 495-0418
Email: jesus.sapien@phoenix.gov
with electronic copy to:
City of Phoenix Public Transit Department
Management Services Division, Grants
Section
Email: ptdgrants@phoenix.gov
B. Notice shall be deemed received: (a) at the time it is personally served; (b) on
the day it is sent by email; (c) on the 2nd business day after its deposit with
any commercial air courier or express service; or (d) on the 10th calendar
day after its deposit in the United States mail (postage prepaid, registered or
certified mail, and return receipt requested). Any time period stated in a
Notice shall be computed from the time the Notice is deemed received. Either
PARTY may change its mailing address, email address, or the person to
receive Notice by providing the other PARTY with a Notice of that change.
C. Notice sent by email shall also be sent by regular mail to the recipient at the
above address. This requirement for duplicate Notice is not intended to
change the effective date of the original Notice sent by email.
9. Summary of Exhibits.
As noted above, the following exhibits are attached to this Agreement and
incorporated by reference:
Exhibit A-1 Federal Grant Pass-Thru Agreement Detail Summary
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Exhibit B
Federal Grant Reimbursement Form
Exhibit C
Required Reports
Exhibit D
Required Federal Provisions
Exhibit E
Partial List of Applicable Laws
Exhibit F
Required Local Provisions
[remainder of page intentionally left blank]
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The PARTIES executed this Agreement on the day and year first above written.
CITY OF PHOENIX
Jeffrey Barton, City Manager
By______________________________
Jesús E. Sapien
Public Transit Director
ATTEST:
________________________________
City Clerk - PHOENIX
APPROVED AS TO FORM:
Cris Meyer, City Attorney
________________________________
Carolina Potts
Assistant Chief Counsel
_____
APPROVED BY PHOENIX CITY COUNCIL BY FORMAL ACTION ON MAY 19, 2021
CITY OF GLENDALE
By ___________________________________
Printed Name: _________________________
Title: _________________________________
APPROVED AS TO FORM:
_______________________________________
Attorney for CITY OF GLENDALE
APPROVED BY ____________________________________ BY FORMAL ACTION
ON ____________________________.
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INTERGOVERNMENTAL AGREEMENT DETERMINATION
In accordance with the requirements of A.R.S. § 11-952(D), each of the undersigned
attorneys acknowledge: (1) that they have reviewed the above Agreement on behalf of
their respective clients; and (2) that, as to their respective clients only, each attorney
has determined that this Agreement is in proper form and is within the powers and
authority granted under the laws of the State of Arizona.
______________________________
______________________________
Attorney for PHOENIX
Attorney for CITY OF GLENDALE
______
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EXHIBIT A-1
FEDERAL GRANT PASS THRU AGREEMENT
DETAIL SUMMARY
FAIN NUMBER: AZ-2022-024
CFDA NUMBER: 20.507
GRANT RECIPIENT: CITY OF PHOENIX
GRANT SUBRECIPIENT’S NAME: CITY OF GLENDALE
GRANT SUBRECIPIENT’S ADDRESS:
6210 W. Myrtle Avenue, Suite S
Glendale Arizona 85301-1700
GRANT SUBRECIPIENT’S SAM.GOV IDENTIFICATION NUMBER: JPC1A6MZZE33
TOTAL ELIGIBLE PROJECT COST
for federal grant purposes (TEPC):
$ 4,777
• Federal Share of TEPC:
$ 4,777
• Local Share/Match of TEPC:
$ 0
PROJECT(S) DESCRIPTION:
ALI Code: Project(s) Description: R&D?
(yes/no)
Local:
Federal:
Total:
57.20.10
Transit Security
No
$ 0
$ 4,777
$ 4,777
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EXHIBIT B
FTA Grant Expenditure Reimbursement Request Application
The information provided will be used by the City of Phoenix Public Transit Department (“PTD”) to monitor SUBRECIPIENT expenditures
for FTA-funded projects and disburse FTA funds for eligible costs. No further FTA funds may be disbursed unless this report is completed
and submitted as required.
SUBRECIPIENT ORGANIZATION NAME AND ADDRESS GRANT AGREEMENT
NUMBER
REQUEST NO.
REPORTING PERIOD (Dates)
FROM:
TO:
TOTAL
LOCAL MATCH FTA SHARE
TOTAL ELIGIBLE PROJECT COSTS
$ -
$ - $ -
TOTAL PREVIOUS PAYMENTS
$ -
$ - $ -
CURRENT REIMBURSEMENT REQUESTED
$ -
$ - $ -
REMAINING FUNDING
$ -
$ - $ -
REQUIRED SIGNATURES
This document must be signed by the SUBRECIPIENT's Transit Manager and Chief Financial Officer or their
designated representative(s).
CERTIFICATION
We certify the financial expenditures submitted for reimbursement with this report, including supporting documentation, are
eligible and allowable expenditures, have been incurred compliant with all applicable Federal laws and regulations, have not
been previously requested, and have met all matching requirements. In addition, we understand that any discovery of a
violation of a federal law or regulation, or any failure to follow applicable Federal directives, may result in withdrawal of
federal participation.
SIGNATURE OF TRANSIT MANAGER OR DESIGNEE
DATE
TYPED OR PRINTED NAME AND TITLE
TELEPHONE
SIGNATURE OF CHIEF FINANCIAL OFFICER OR DESIGNEE
DATE
TYPED OR PRINTED NAME AND TITLE
TELEPHONE
Instructions
1. Keep a copy of all documents submitted.
2. All project records, including financial records, must be maintained for three years beyond the later of vehicle/asset
disposal or final close-out of the Grant with FTA.
For PTD use only
Date request received:
Approved for funds availability (signature/date)
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EXHIBIT C
Required Reports
SUBRECIPIENT agrees to submit reports and statements or plans as now or hereafter
required by PHOENIX or the FTA. Quarterly reports are due on or before the 15th of the
month following the end of the quarter, i.e., October 15, January 15, April 15 and July 15;
and annual reports are due ninety days (except NTD Report, which shall be due 120
days) after the end of the fiscal year (July 1 - June 30). Drug and Alcohol Reports are
due January 31 for the previous calendar year.
REPORT
FREQUENCY
DESCRIPTION
DBE Reports
As required by
PHOENIX
DBE participation, utilization, annual goal
setting, progress, and information reports
Grant Status Report Quarterly
Status of each project by grant number
NTD Report – Close
Out Letter
Annually
Copy for information only
Fixed Assets Status
Report
Annually
Inventory of all FTA-funded assets
Single Audit Report
Annually
Copy of federally required audit
Title VI Annual
Report
Annually
Subrecipient to provide all Title VI
complaints and related information
annually
Lobbying Activities
As required
pursuant to 31
U.S.C. 1352
Subrecipient to disclose any lobbying
activities quarterly and submit Disclosure
of Lobbying Activities LLL form pursuant
to 31 U.S.C. 1352
Drug and Alcohol
Reports
Annually
FTA drug and alcohol testing
Contract Change
Orders Above
$100,000
Quarterly
Subrecipient to provide list of any
federally-funded contract change orders
for any amount $100,000 or greater
Claims/Settlements
Quarterly
Subrecipient to provide list of any
federally-funded projects with
Claims/Settlements pending or closed
within the quarter
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Vehicle Record
Inventory Form
Reimbursements
with vehicles
Provide a vehicle record inventory form
for each vehicle purchased with FTA
funds
Capital Asset
Purchase Form
Reimbursements
with capital asset
Provide a capital asset purchase form for
each capital asset purchased with FTA
funds
Staff Time
Documentation
Reimbursements
with staff time
All reimbursements for staff time must
include verification of all hours billed,
including copies of all applicable
timecards or other time reporting
documentation
5310 FTA Grants
Grant Performance
Information
Annually or as
required by FTA
Evaluation of Grant Accomplishments
The reports and required submissions listed above may be increased, revised,
reorganized, deleted or changed as required by FTA guidelines. All reports must be
current before any FTA funds will be disbursed by PHOENIX.
EXHIBIT C, Page 2
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EXHIBIT D
Required Federal Provisions
1.
SUBRECIPIENT shall permit the authorized representatives of PHOENIX, the
United Stated Department of Transportation (“USDOT”), and the Controller
General of the United States to inspect and audit all data, books, records, and
reports relating to this Agreement and SUBRECIPIENT’s performance
hereunder. PHOENIX's audit shall be at SUBRECIPIENT's sole cost and
expense. All required records shall be maintained for a minimum of three years
after the Grant has been formally closed, excluding assets, vehicles, or
equipment. For assets, vehicles, or equipment that received federal funding in
this Grant, all records must be kept for three years after the disposal date of the
asset, which may extend well past the grant closure date. The obligations of
SUBRECIPIENT under this provision survive the termination or expiration of this
Agreement.
2.
Both PARTIES warrant that no person has been employed or retained to solicit
or secure this Agreement upon an agreement or understanding for a
commission, percentage, brokerage, or contingent fee; and, further, that no
member or delegate to Congress or City Council, or any employee of PHOENIX
or SUBRECIPIENT, has any interest, financial or otherwise, in this Agreement.
3.
SUBRECIPIENT shall fully comply with the Disadvantaged Business Enterprise
(“DBE”) regulations of USDOT, 49 CFR Part 26. SUBRECIPIENT shall abide by
all stipulations, regulations, and procedures set forth in PHOENIX’s FTA-
approved DBE Program Plan. The Transit Civil Rights Officer of PHOENIX’s
Public Transit Department and representative(s) of PHOENIX’s Equal
Opportunity Department will meet annually with SUBRECIPIENT to cooperatively
determine DBE participation for all FTA-assisted projects.
4.
In performing the services for which federal funding is provided under this
Agreement, SUBRECIPIENT agrees to comply with all laws, rules, regulations,
standards, orders, or directives applicable to: (a) this Agreement; (b) the services
provided pursuant to this Agreement; and (c) PHOENIX, as the designated
recipient of FTA funding. These laws, rules, regulations, standards, orders, and
directives include federal, state, and local laws and those items set forth here in
Exhibit D and below in Exhibit E.
5.
The PARTIES acknowledge that federal funds are being used for the work,
services, and operations provided under this Agreement. In that regard,
PHOENIX, as the designated grant recipient, is obligated to accept and comply
with all of the terms and conditions set forth in the Federal Transit Administration
(“FTA”) Master Grant Agreement. In order for SUBRECIPIENT to receive
funding under this Agreement with PHOENIX, SUBRECIPIENT is required to
similarly accept and comply with all such terms and conditions, and
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SUBRECIPIENT does hereby specifically agree to be bound thereby. A copy of
the Master Grant Agreement and any subsequent revisions are publicly available
at transit.dot.gov/funding/grantee-resources/sample-fta-agreements/fta-grant-
agreements and incorporated into this Agreement by reference. SUBRECIPIENT
is solely responsible for complying with all the terms and conditions of the Master
Grant Agreement and any subsequent revisions.
6.
SUBRECIPIENT understands and acknowledges the applicability of the
Immigration Reform and Control Act of 1986 (“IRCA”) and agrees to comply with
the IRCA in the performance of this Agreement.
7.
SUBRECIPIENT shall fully comply with Equal Employment Opportunity (“EEO”)
regulations of the USDOT Urban Mass Transportation Administration (“UMTA”)
Circular 4704.1. SUBRECIPIENT shall provide an EEO Program Plan when they
employ 50 or more transit-related employees and requests or receives: (a)
planning assistance under Section 8 or 9 of the Urban Mass Transportation
(“UMT”) Act (or any combination thereof) in excess of $250,000 in the previous
federal fiscal year; or (b) capital or operating assistance under Section 3, 4(i), or
9 of the UMT Act, 23 U.S.C. 142 (a)(2), or 23 U.S.C. 103(e) (or any combination
thereof) in excess of $1 million in the previous federal fiscal year.
SUBRECIPIENT shall fully comply with EEO regulations as they pertain to
subcontractors. Any subcontractor with 50 or more transit-related employees
shall provide an EEO Program Plan.
8.
Section 319 of Public Law 101-121 prohibits recipients of federal contracts
from using appropriated funds for lobbying U.S. Federal Agencies or the United
States Congress in connection with a specific covered federal action and
requires all persons to disclose lobbying if they request or receive a covered
federal action.
By signing this agreement, SUBRECIPIENT certifies that:
A.
SUBRECIPIENT shall require that the language of this section be
included in the award documents for all sub-awards at all tiers (including
subcontracts, subgrants, and contracts under grants, loans, and
cooperative agreements) and that SUBRECIPIENT shall certify and
disclose accordingly.
B.
No federally appropriated funds have been paid or will be paid, by or on
behalf of SUBRECIPIENT, 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 the: (1) award of any federal contract; (2)
EXHIBIT D, Page 2
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grant of any federal loan; (3) provision of any federal grant; (4) entrance
into any cooperative agreement; and (5) extension, continuation, renewal,
amendment, or modification of any federal contract, grant, loan, or
cooperative agreement.
C.
If any funds other than federally 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, SUBRECIPIENT shall complete and submit Standard Form-
LLL, "Disclosure Form to Report Lobbying," in accordance with its
instructions.
D.
This certification is a material representation of fact upon which reliance
was placed when this transaction was made or entered. 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.
9.
If a current or prospective legal matter that may affect the Federal Government
emerges, the SUBRECIPIENT must promptly notify PHOENIX, which must then
promptly notify the FTA Chief Counsel and FTA Regional Counsel for Region 9.
The SUBRECIPIENT must include a similar notification requirement in its Third-
Party Agreements and must require each Third-Party Participant to include an
equivalent provision in its subagreements at every tier, for any agreement that is
a “covered transaction” according to 2 C.F.R. §§ 180.220 and 1200.220.
A.
The types of legal matters that require notification include, but are not
limited to, a major dispute, breach, default, litigation, or naming the
Federal Government as a party to litigation or a legal disagreement in any
forum for any reason.
B.
Matters that may affect the Federal Government include, but are not
limited to, the Federal Government’s interests in the Award, the
accompanying Underlying Agreement, and any Amendments thereto, or
the Federal Government’s administration or enforcement of federal laws,
regulations, and requirements.
C.
The SUBRECIPIENT must promptly notify PHOENIX, which must then
promptly notify the U.S. DOT Inspector General in addition to the FTA
Chief Counsel or Regional Counsel for Region 9, if the SUBRECIPIENT
EXHIBIT D, Page 3
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has knowledge of potential fraud, waste, or abuse occurring on a Project
receiving assistance from FTA. The notification provision applies if a
person has or may have submitted a false claim under the False Claims
Act, 31 U.S.C. § 3729, et seq., or has or may have committed a criminal
or civil violation of law pertaining to such matters as fraud, conflict of
interest, bid rigging, misappropriation or embezzlement, bribery, gratuity,
or similar misconduct involving federal assistance. This responsibility
occurs whether the Project is subject to this Agreement or another
agreement between the Recipient and FTA, or an agreement involving a
principal, officer, employee, agent, or Third-Party Participant of the
SUBRECIPIENT. It also applies to subcontractors at any tier. Knowledge,
as used in this paragraph, includes, but is not limited to, knowledge of a
criminal or civil investigation by a federal, state, or local law enforcement
or other investigative agency, a criminal indictment or civil complaint, or
probable cause that could support a criminal indictment, or any other
credible information in the possession of the SUBRECIPIENT. In this
paragraph, “promptly” means to refer information without delay and
without change. This notification provision applies to all divisions of the
SUBRECIPIENT.
10.
PHOENIX and SUBRECIPIENT are prohibited from obligating or expending loan
or grant funds to: procure or obtain, extend or renew a contract to procure or
obtain, or enter into a contract (or extend or renew a contract) to procure or
obtain equipment, services, or systems that uses covered telecommunications
equipment or services as a substantial or essential component of any system, or
as critical technology as part of any system. As described in Public Law 115-232,
section 889, covered telecommunications equipment is:
A.
Telecommunications equipment produced by Huawei Technologies
Company or ZTE Corporation (or any subsidiary or affiliate of such
entities).
B.
Video surveillance and telecommunications equipment produced by
Hytera Communications Corporation, Hangzhou Hikvision Digital
Technology Company, or Dahua Technology Company (or any subsidiary
or affiliate of such entities) for the purpose of public safety, security of
government facilities, physical security surveillance of critical
infrastructure, and other national security purposes.
C.
Telecommunications or video surveillance services provided by such
entities or using such equipment.
D.
Telecommunications or video surveillance equipment or services
produced or provided by an entity that the Secretary of Defense, in
EXHIBIT D, Page 4
18
consultation with the Director of the National Intelligence or the Director of
the Federal Bureau of Investigation, reasonably believes to be an entity
owned or controlled by, or otherwise connected to, the government of a
covered foreign country.
In implementing the prohibition under Public Law 115-232, section 889,
subsection (f), paragraph (1), heads of executive agencies administering loan,
grant, or subsidy programs shall prioritize available funding and technical support
to assist affected businesses, institutions, and organizations as is reasonably
necessary for those affected entities to transition from covered communications
equipment and services, to procure replacement equipment and services, and to
ensure that communications service to users and customers is sustained
EXHIBIT D, Page 5
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EXHIBIT E
Partial List of Applicable Laws
A.
Federal Codes. SUBRECIPIENT shall comply with Title VI of the Civil Rights Act
of 1964, 78 Stat. 252, 42 U.S.C. 2000d to U.S.C. 2000d-4 (“Title VI”) and all
requirements imposed by or pursuant to Title 49, Code of Federal Regulations,
Department of Transportation, Subtitle A, Office of the Secretary, Part 21,
“Nondiscrimination in Federally-Assisted Programs of the Department of
Transportation - Effectuation of Title VI of the Civil Rights Act of 1964”
(“Nondiscrimination Regulations”) and other pertinent directives so that no
person in the United States shall, on the grounds of race, color, sex or national
origin be excluded from participation in, be denied the benefits of, or be
otherwise subjected to discrimination under any program or activity for which
SUBRECIPIENT receives federal financial assistance, directly or indirectly, from
the Department of Transportation, including the Federal Transit Administration.
SUBRECIPIENT hereby gives assurance that it will promptly take any measures
necessary to effectuate this Agreement. This assurance is required by
Subsection 21.7(a)(1) of the Nondiscrimination Regulations.
More specifically and without limiting the above general assurance,
SUBRECIPIENT hereby gives the following specific assurances with respect to
the Project(s):
1.
SUBRECIPIENT shall insert the following notification in all solicitations for
bids for work or material subject to the Nondiscrimination Regulations and
made in connection with a project under 49 U.S.C. chapter 53 and, in
adapted form, in all proposals for negotiated agreements:
CONTRACTOR, in accordance with Title VI of the Civil Rights Act
of 1964, 78 Stat. 252, 42 U.S.C. 2000d to 2000d-4 and Title 49,
Code of Federal Regulations, Department of Transportation,
Subtitle A, Office of the Secretary, Part 21, “Nondiscrimination in
Federally-Assisted Programs of the Department of Transportation,”
issued pursuant to such Act, hereby notifies all bidders and
proposers that it will affirmatively ensure that in regard to any
contract or procurement entered into pursuant to this
advertisement, disadvantaged business enterprises will be afforded
full opportunity to submit bids and proposals in response to this
invitation and will not be discriminated against on the grounds of
race, color, sex, or national origin in consideration for an award.
2.
If SUBRECIPIENT carries out a program of training under Section 5312of
Title 49, United States Code chapter 53, the assurance shall obligate
SUBRECIPIENT to make selection of the trainee or fellow without regard
to race, color, sex, or national origin.
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3.
Where SUBRECIPIENT receives federal financial assistance to carry out
a program under Title 49, United States Code chapter 53, the assurance
shall obligate SUBRECIPIENT to assign transit operators and to furnish
transit operators without regard to race, color, sex, or national origin.
4.
Where SUBRECIPIENT carries out a program under Title 49, United
States Code chapter 53, routing, scheduling, quality of service, frequency
of service, age and quality of vehicles assigned to routes, quality of
stations serving different routes, and location of routes may not be
determined on the basis of race, color, sex, or national origin.
5.
This assurance obligates SUBRECIPIENT for the period during which
federal financial assistance is extended to the Project(s).
6.
SUBRECIPIENT shall provide for such methods of administration for the
program as are found by PHOENIX to give reasonable guarantee that it,
its contractors, subcontractors, transferees, successors-in-interest and
other participants under such program will comply with all requirements
imposed pursuant to 49 U.S.C. chapter 53, the Nondiscrimination
Regulations, and this assurance.
7.
SUBRECIPIENT agrees that PHOENIX has a right to seek judicial
enforcement regarding any matter arising under 49 U.S.C. chapter 53,
the Nondiscrimination Regulations, and this assurance.
B.
Compliance with FTA Regulations. During the performance of this Agreement,
SUBRECIPIENT, for itself, its assignees and successors-in-interest agrees as
follows:
1.
SUBRECIPIENT shall comply with the Nondiscrimination Regulations, as
they may be amended from time to time, which are incorporated by
reference and made a part of this Agreement.
2.
With regard to the work performed by it during the Agreement,
SUBRECIPIENT shall not discriminate on the grounds of race, color, sex,
or national origin in the selection and retention of subcontractors, including
procurement and leases of equipment.
3.
In all solicitations, either by competitive bidding or negotiation, made by
SUBRECIPIENT for work to be performed under a subcontract—including
procurement of materials or leases of equipment—each potential
subcontractor or supplier shall be notified by SUBRECIPIENT of the
subcontractor’s obligations under this Agreement and the
Nondiscrimination Regulations.
EXHIBIT E, Page 2
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4.
SUBRECIPIENT shall provide all information and reports required by the
Nondiscrimination Regulations or directives issued pursuant thereto, and
shall permit access to its books, records, accounts, other sources of
information, and its facilities as may be determined by PHOENIX or FTA
to be pertinent to ascertain compliance with such Nondiscrimination
Regulations, orders, and instructions. Where any information required of
SUBRECIPIENT is in the exclusive possession of another who fails or
refuses to furnish this information, SUBRECIPIENT shall so certify to
PHOENIX or FTA, as appropriate, and shall set forth what efforts it has
made to obtain the information.
5.
If SUBRECIPIENT fails to comply with the nondiscrimination provisions of
this Agreement, then PHOENIX shall impose such contract sanctions as it
or FTA may determine to be appropriate, including: (a) withholding of
payments to SUBRECIPIENT under the grant award until SUBRECIPIENT
complies; and (b) cancellation, termination, or suspension of this
Agreement, in whole or in part.
6.
SUBRECIPIENT shall include the FTA provisions included above in
paragraphs 1 through 5 of Exhibit E, section B, in every subcontract,
including procurement of materials and leases of equipment, unless
exempt by the Nondiscrimination Regulations or governing directives
issued. SUBRECIPIENT shall take such action with respect to any
subcontract or procurement as PHOENIX or FTA may direct as a means
of enforcing such provisions, including sanctions for noncompliance. If
SUBRECIPIENT becomes involved in, or is threatened by litigation with a
subcontractor or supplier as a result of such direction, then
SUBRECIPIENT may request that PHOENIX enter into such litigation to
protect the interests of PHOENIX, and SUBRECIPIENT may request the
United States to enter into such litigation to protect the interests of the
United States.
7.
SUBRECIPIENT hereby adopts the Title VI investigation and tracking
procedure developed by PHOENIX. SUBRECIPIENT agrees that
PHOENIX personnel shall conduct Title VI investigations. The
determinations made by PHOENIX of Title VI complaints shall be binding
upon SUBRECIPIENT. SUBRECIPIENT shall maintain a list of any active
Title VI investigations conducted by any governmental entity, including
PHOENIX, and shall maintain a Title VI complaint log of closed
investigations for three years. SUBRECIPIENT shall provide information
to the public concerning its Title VI obligations and apprise the public of
protections offered by Title VI. The obligations of SUBRECIPIENT under
this provision survive the termination or expiration of this Agreement.
EXHIBIT E, Page 3
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8.
SUBRECIPIENT avows that, where applicable, it is and will provide fair
and equitable labor protective arrangements, as reflected in Section
5333(b) of Title 49 U.S. Code, as amended (formerly Section 13(c) of the
Federal Transit Act of 1964, 49 U.S.C. 1609). SUBRECIPIENT shall fully
cooperate with PHOENIX in meeting the legal requirements of the labor
protective provisions of Section 5333(b) and the Labor Agreements and
side letters currently in force and certified by the United States
Department of Labor. Changes, including changes in service and any
other changes that may adversely affect transit employees, shall be made
only after due consideration of the impact of such changes on Section
5333(b) protections granted to employees.
9.
SUBRECIPIENT shall comply with the following statutes and regulations:
• 18 U.S.C. 1001
• Section 5301 of 49 U.S.C. chapter 53
• Section 5309(i) of 49 U.S.C. chapter 53
• Section 5310 of 49 U.S.C. chapter 53, which provides—among other
thing—for the planning and design of mass transportation facilities to
meet the special needs of senior persons and persons with disabilities
• Section 5323(d) and (f) of 49 U.S.C. chapter 53
• Section 5326 of 49 U.S.C. chapter 53
• Section 5329 of 49 U.S.C. chapter 53
• Section 5332 of 49 U.S.C. chapter 53, which prohibits—among other
things—discrimination on the basis of race, color, creed, national
origin, sex, or age
• Section 5333 of 49 U.S.C. chapter 53, which requires compliance with
applicable labor requirements
• Section 5337 of 49 U.S.C. chapter 53
• Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, which
prohibits—among other things—discrimination on the basis of race,
color or national origin by recipients of federal financial assistance.
• Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, which
prohibits—among other things—discrimination in employment
• Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, which
prohibits—among other things—discrimination on the basis of disability
• 49 CFR Part 600 et seq. regulations promulgated by FTA
• 49 CFR Parts 21, 23, 25, 26 and 27 regulations promulgated by the
Department of Transportation governing Title VI, minority business
enterprise (DBE/women's business enterprise), relocation and land
acquisition, and nondiscrimination based on disability, respectively
• 46 CFR Part 381 regulations promulgated by the Maritime
Administration governing cargo preference requirements
EXHIBIT E, Page 4
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• 36 CFR Part 800 regulations promulgated by the Advisory Council on
Historic Preservation
• 31 CFR part 205 regulations promulgated by the Department of the
Treasury governing letter of credit
• 40 CFR Part 15 regulations promulgated by the Environmental
Protection Agency pertaining to administration of clean air and water
pollution requirements
• 29 CFR Parts 5 and 215 regulations promulgated by the Department of
Labor pertaining to construction labor and transit employee protections
C.
Drug and Alcohol Testing. SUBRECIPIENT shall have in place, maintain, and
implement a plan and a program for compliance with U.S. DOT Drug and Alcohol
regulations, as specified in 49 CFR 40, 49 CFR 653, and 49 CFR 654. That plan
and program shall be modified to incorporate and comply with such other
regulations as were adopted by the USDOT and published in the Federal
Register as of February 14, 1994 and any subsequent changes thereto.
EXHIBIT E, Page 5
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EXHIBIT F
Required Local Provisions
1.
Assignability; Successors and Assigns. This Agreement and any rights or
obligations hereunder shall not be transferred or assigned, in whole or in part, by
SUBRECIPIENT without the prior written consent of PHOENIX. Any attempt to
assign without such prior written consent shall be void.
2.
Employment and Organization Disclaimer. This Agreement is not intended to and
will not constitute, create, give rise to, or otherwise recognize a joint venture,
partnership, or formal business association or organization of any kind as
existing between the PARTIES, and the rights and the obligations of the
PARTIES shall be only those expressly set forth herein. Neither PARTY (nor any
employee of either PARTY) is the agent of the other PARTY or otherwise
authorized to act on behalf of the other PARTY for any purpose. SUBRECIPIENT
shall be liable to PHOENIX for any financial liability arising from any finding to the
contrary by any forum of competent jurisdiction.
3.
Entire Agreement; Modification (No Oral Modification). This Agreement and any
Exhibits, Attachments, or Schedules attached hereto constitute the full and
complete understanding and agreement of the PARTIES. This Agreement
supersedes and replaces any and all previous representations, understandings,
and agreements, written or oral, relating to its subject matter. There shall be no
oral alteration or modification of this Agreement. This Agreement and its terms
may not be modified or changed except in writing signed by both PARTIES.
4.
Invalidity of Any Provisions. This Agreement shall remain in full force and effect
even if one or more of its terms or provisions have been held to be invalid or
unenforceable. Such a holding shall result in the offending term or provision
being ineffective to the extent of its invalidity or unenforceability without
invalidating the remaining terms and provisions hereof. This Agreement shall
thereafter be construed as though the invalid or unenforceable term or provision
were not contained herein.
5.
Applicable Law and Litigation. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Arizona. Any and all
litigation between the PARTIES arising from this Agreement shall be litigated
solely in the appropriate state court located in Maricopa County, Arizona.
6.
Inspection and Audit. The provisions of A.R.S. Section 35-214 shall apply to this
Agreement. PHOENIX shall perform the inspection and audit function specified
therein.
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7.
Compliance with Laws and Permits. SUBRECIPIENT shall comply with all
applicable laws, ordinances, regulations, and codes of federal, state and local
governments. Further, SUBRECIPIENT shall be solely responsible for obtaining
all approvals and permits necessary to perform the work called for under this
Agreement.
8.
Non-waiver. If PHOENIX fails or delays in exercising or enforcing any right,
power, privilege, or remedy under this Agreement, such failure or delay shall not
be deemed a waiver, release, or modification of the requirements—or any other
terms or provisions—of this Agreement.
9.
Contract Cancellation. The PARTIES acknowledge that this Agreement is subject
to cancellation by PHOENIX, or cancellation by SUBRECIPIENT if it is a
government entity, pursuant to the provisions of A.R.S. Section 38-511.
10.
Legal Worker Requirements. PHOENIX is prohibited by A.R.S. Section 41-4401
from awarding a contract (agreement) to any SUBECIPIENT who fails, or whose
contractors fail, to comply with A.R.S. Section 23-214(A). Therefore,
SUBRECIPIENT agrees that:
A. SUBRECIPIENT and each contractor it uses warrants their compliance with
all federal immigration laws and regulations that relate to their employees and
their compliance with A.R.S. Section 23-214(A).
B. A breach of warranty under paragraph A will be deemed a material breach of
the Agreement that is subject to penalties up to and including termination of
the Agreement.
C. PHOENIX retains the legal right to inspect the papers of SUBRECIPIENT or
any contractor employee who works on the Agreement to ensure that the
SUBRECIPIENT or any contractor is complying with the warranty under
paragraph A.
EXHIBIT F, Page 2