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HomeMy WebLinkAboutCapital Assistance Contact/DOT 2012 SECTION 5309 CAPITAL ASSISTANCE CONTRACT BETWEEN THE STATE OF WISCONSIN AND THE CITY OF OSHKOSH This Contract is made by and between the State of Wisconsin, Department of Transportation, hereinafter referred to as "Department" and the City of Oshkosh, hereinafter referred to as "Recipient." PRELIMINARY STATEMENT The Department is authorized by section 85.20 (3)(d), Wisconsin Statutes, to apply for and receive federal grants on behalf of eligible recipients. The purpose of this program is to promote the general public good by providing financial assistance to surface public transportation systems. The Recipient has requested funds to assist in financing capital purchases under this program. The Department agrees to provide financial assistance with program monies made available under Section 5309 of the Federal Transit Act, in accordance with the terms and conditions of this Contract. In consideration of the reciprocal promises expressed in this Contract, the Department and the Recipient agree as follows: Article I: Payment by the Department A. Payment under the terms of this Contract is based on 49 U.S.C.S. S1601 et. seq. (Section 5309 of the Federal Transit Act), which specifies that capital assistance grants may not exceed eighty percent (80%) of the total capital costs, except for equipment required by the Americans with Disabilities Act or the Clean Air Act, for which the grant may not exceed 90% of the total project costs. B. The Department agrees to pay the Recipient $110,000.00, or 80% (90% for ADA or CAA mandated equipment) of the purchase price, whichever is less of the items specified in Attachment A, Project Budget. The costs eligible for assistance shall be limited to those specified in Attachment A, project budget. C. The Department shall make payment to the Recipient upon receipt of invoices prepared by the manufacturer or dealer showing the actual costs of purchased equipment or in the case of a construction project, upon receipt of invoices in accordance with the payment schedule as specified in the construction contract. D. If the Department's audit establishes that payment to the Recipient under the terms of this Contract has exceeded the allowable maximum as defined in Article I.B., the Recipient shall refund to the Department upon demand a sum sufficient to reduce the payment to comply with Article I.B of this Contract. E. Consistent with Articles I.B and notwithstanding other provisions of this contract, the Department may reduce the payments otherwise due under paragraph B of this article. The WI-04-0009 Department under this paragraph may reduce those payments only by an amount equal to any overpayments made to Recipient under this Contract or under any prior capital assistance contract. The Department may determine the amount of any such overpayment by conducting an audit under Article IV. If the Department finds an overpayment, the Department may thereafter set off that overpayment against the amount payable to Recipient under paragraph B of this article until the amount payable under paragraph B of this article equals the overpayment. Hence, until total payment due under paragraph B of this article equals the overpayment, no payments under paragraph B of this article shall be made; after total payment due under paragraph B of this article exceeds the overpayment, then that portion of the total payment due under paragraph B that exceeds the overpayment shall be paid to Recipient. Article II: Responsibility of Recipient A. The purchase of all equipment and facilities financed pursuant to this Contract shall be undertaken by the Recipient and shall be in accordance with applicable state and Federal laws and regulations. The Master Agreement between the State of Wisconsin and the Federal Transit Administration contains all required clauses that should be included in agreement between the State of Wisconsin and the Recipient and said Master Agreement is therefore included in this agreement by reference. B. The Recipient shall complete all projects included in this contract within a period of one (1) year from the date of execution of the contract. If the Recipient fails to complete a given project(s) within the one (1) year period, the Department shall take necessary actions to withdraw any remaining uncommitted funds in the contract at that time. The uncommitted funds may be reassigned to other subrecipients within the same capital grant cycle or surrendered to the federal government. C. Title to project equipment shall be in the name of a public body, subject to the restrictions on use and disposition of the project equipment and rolling stock set forth herein. Copies of title documents must be filed with the Bureau of Transit and Local Roads as soon as possible. D. The Recipient may not execute any transfer of title, lease, lien, pledge, mortgage, encumbrance, contract, grant anticipation note, alienation, or other obligation that in any way affects the Federal interest in any project real property or equipment, nor may the Recipient obligate itself, in any other manner, to any third party with respect to project real property or equipment, unless such transfer of title, lease, lien, pledge, mortgage, encumbrance, contract, grant anticipation note, alienation, or other obligation is expressly authorized in writing by the Department; nor may the Recipient, by any act or omission, adversely affect the Federal interest or impair the Recipient's continuing control over the use of project real property or equipment. E. The Recipient agrees that the project equipment and rolling stock shall only be used for the provision of transportation service to the general public and rolling stock shall be clearly marked for public use. The Recipient shall keep satisfactory records with regard to the use of the equipment and rolling stock and submit to the Department upon request such information as may be required to assure compliance with this section. Project equipment and rolling stock shall be operated only within the area described in the application for the duration of its useful WI-04-0009 • life. If during the useful life, the project equipment and rolling stock is not used in this manner or is withdrawn from transportation service, the Recipient shall immediately notify the Department and request disposition instructions. F. The Recipient shall perform preventive maintenance on the equipment, facilities, and rolling stock purchased with FTA funds, including ADA accessibility equipment, at a level no less than the manufacturer's recommended specifications. Adequate records of preventive maintenance on each piece of equipment, rolling stock, and facilities shall be maintained by the Recipient. The equipment, facilities, and rolling stock shall be properly maintained at all times. The Department shall have the right to conduct periodic inspections and reviews for the purpose of confirming that proper maintenance policies and procedures are being followed. G. The Recipient shall make available the equipment and rolling stock to the Department upon demand for the purpose of an annual verification or other inspections deemed necessary by the Department. H. The Recipient shall immediately notify the Department in all cases where project equipment or rolling stock is used in a manner substantially different from that described in the application. The Recipient shall obtain prior written concurrence from the Department for any proposed sale of equipment, facilities, rolling stock, title transfer, or lease to another agency. The Recipient shall maintain in amount and form satisfactory to the Department such insurance or self-insurance (including property, personal injury and collision coverage) as will be adequate to cover the current value of project equipment, facilities, and rolling stock throughout the period of required use. J. WisDOT reserves the right to require the Recipient to restore equipment and rolling stock or • pay for damages to the equipment, facilities, and rolling stock as a result of abuse or misuse of • such capital items with the Recipient's knowledge and consent. Article III: Records and Audits A. The Recipient shall have a single, organization-wide, financial and compliance audit performed by a qualified independent auditor if required to do so under Federal law and regulations. (See Federal OMB Circular No. A-133 and the provisions of OMB A-133 Compliance Supplement, dated March 2002.) B. This audit shall be performed in accordance with Federal Circular A-133 issued by the Federal Office of Management and Budget(OMB), its Compliance Supplement, and state single audit guidelines issued by the Wisconsin Department of Administration(DOA). C. The Recipient agrees to maintain appropriate accounts and records relating to this transportation project. Such accounts and records will be made available upon request to the Department for inspection and audit purposes. WI-04-0009 D. The Recipient shall permit the Department, The Comptroller General of the United States, and The Secretary of the United States Department of Transportation, or their authorized representatives, access to inspect: (1) all vehicles, facilities, and equipment purchased by the Recipient as part of the project; (2) all transportation services rendered by the Recipient by the use of such vehicles, facilities, and equipment; and(3) all relevant project data and records. The Recipient shall also permit the above-named agencies to audit the books, records, documents, and accounts of the Recipient pertaining to the project. Article IV: Assurance of Nondiscrimination on the Basis of Disability The Recipient, in accordance with 49 CFR Parts 27,37, and 38, agrees that it will comply with the Americans with Disabilities Act of 1990 (ADA), the Rehabilitation Act and all U.S. Department of Transportation regulations relating to enforcement of each Act. Article V: Prohibited Interests A. No member of or delegate to the Congress of the United States shall be admitted to any share or part of this Contract, or to any benefit arising there from. B. No member, officer, or employee of the Department or of the Recipient during his or her tenure or for one year thereafter shall have any personally benefiting interest, direct or indirect, in this Contract or the proceeds thereof. Article VI: Applicable Law This contract shall be governed under the laws of the State of Wisconsin. The recipient shall at all times comply with and observe all federal and state laws, local laws, ordinances, and regulations which are in effect during the period of this contract and which in any manner affect the work or its conduct. Article VII: Safety Requirements All materials, equipment, and supplies acquired through this contract by the Recipient, must comply fully with all safety requirements as set forth in law or rule by the State of Wisconsin and all applicable OSHA Standards. Article VIII: Arbitration Any claim, counterclaim or dispute arising out of or relating to this Contract may, by mutual consent, be submitted to arbitration, if the parties mutually agree, or in a court of competent jurisdiction within the State of Wisconsin. Article IX: Compliance with FTA Requirements The recipient agrees that if, during the term of this contract, the FTA determines through its triennial review of the recipient that it is out of compliance and ineligible to receive funds during this period, the recipient shall indemnify WisDOT for whatever funds it has disbursed, either through direct WI-04-0009 • reimbursement to WisDOT or through the withholding of eligible federal Section 5307, 5309 and/or 5311 funds. Article X: Fly America Requirements The Fly America requirements apply to the transportation of persons or property, by air, between a place in the U.S. and a place outside the U.S., or between places outside the U.S., when the FTA will participate in the costs of such air transportation. The Contractor agrees to comply with 49 USC 40118 (the "Fly America"Act) in accordance with the General Services Administration's regulations at 41 CFR Part 301-10, which provide that recipients and subrecipients of Federal funds and their contractors are required to use U.S. Flag air carriers for U.S. Government-financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Recipient shall submit, if a foreign air carrier was used, an approximate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Recipient agrees to include the requirements of this section in all subcontracts that may involve international air transportation. Article XI: Buy America Requirements The Buy America requirements apply to construction contracts and the acquisitions of goods and/or rolling stock (valued at more than $100,000). The Recipient agrees to comply with 49 USC 5323 (j) and 49 CFR Part 661, which provide that Federal funds may not be obligated unless steel, iron, and manufactured products used in FTA-funded projects are produced in the United States, unless a waiver has been granted by 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, software, and small purchases (currently less than $100,0000) made with capital, operating, or planning funds. Separate requirements for rolling stock are set out at 5323 (j)(2)(C) and 49 CFR 661.11. Rolling stock not subject to a general waiver must be manufactured in the United States and have a 60 percent domestic content. Article XII: Charter and School Bus Restriction The Recipient agrees that it will not engage in charter or sightseeing services except in compliance with 49 CFR, Part 604. The Recipient also agrees that it will not engage in school bus operations exclusively for the transportation of students and school personnel in competition with private school bus operators, in accordance with 49 CFR, Part 605. All vehicles operated by the transit system will remain open to the public at all times and will be clearly marked for public use. Article XIII: Cargo Preference WI-04-0009 The Recipient 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 leading 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.) 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. Article XIV: Seismic Safety The Seismic Safety requirements apply only to construction of new buildings or additions to existing buildings.-The Recipient agrees to comply with all the requirements of 42 USC § 7701 et seq., 42 U.S.C. § 7704 note,_and 49 CFR Part 41. Article XV: Energy Conservation The Recipient agrees to comply with the mandatory energy efficiency standards and policies within the applicable State energy conservation plans issued in compliance with the Energy Policy and Conservation Act, 42 U.S.C. §§ 6321 et seq. Article XVI: Clean Water • The Recipient agrees that it will comply with U.S. Department of Transportation regulations relating to the Federal Water Pollution Control Act, as amended, 33 USC § 1251 et seq. In addition: (1) The Recipient agrees to protect underground sources of drinking water consistent with the provisions of the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. §§ 300f et seq. (2) The Recipient agrees to comply with the notification of violating facility requirements of Executive Order No. 11738, "Administration of the Clean Air Act and the Federal Water Pollution Control Act with Respect to Federal Contracts, Grants, or Loans," 42 U.S.C. § 7606 note. Article XVII: Bus Testing The Bus Testing requirements pertain only to the acquisition of Rolling Stock/Turnkey. The Recipient agrees to comply with all the requirements of 49 USC § 5323 (C) and 49 CFR Part 665. Both the recipient and any third party contractor must comply with all the requirements of 49 USC § 5323 (C) and 49 CFR Part 665. Article XVIII: Pre-Award and Post Delivery Review Requirements WI-04-0009 . .... ... . .... . .. .... . The Pre-Award and Post-Delivery Review Requirements apply only to the acquisition of Rolling Stock/Turnkey(valued at more than $100,000). The Recipient agrees to comply with all the requirements of 49 USC § 5323 and 49 CFR Part 663 and to submit the following certifications: A. Buy America Requirements: The Recipient shall complete and submit a declaration certifying either compliance or noncompliance with Buy America. If the Bidder/Offeror certifies compliance with Buy America, it shall submit documentation which lists 1) component and subcomponent parts of the rolling stock to be purchased identified by manufacturer of the parts, their country of origin and costs; and 2)the location of the final assembly point for the rolling stock, including a description of the activities that will take place at the final assembly point and the cost of final assembly. B. Solicitation Specification Requirements: The Recipient shall submit evidence that it will be capable of meeting the bid specifications. C. Federal Motor Vehicle Safety Standards (FMVSS): The Recipient shall submit 1) manufacturer's FMVSS self-certification sticker information that the vehicle complies with relevant FMVSS or 2) manufacturer's certified statement that the contracted buses will not be subject to FMVSS regulations. Article XIX: Lobbying Certification The Recipient, in compliance with 49 CFR Parts 19 and 20, hereby assures and certifies that for any application for a Federal assistance exceeding $100,000: (1)No Federal appropriated funds have been paid or will be paid, by or on behalf of the Recipient, 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 making lobbying contacts to 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 or grant, the Recipient shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The Recipient shall require that the language of this certification will 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 subrecipients shall certify and disclose accordingly. This assurance is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of the assurance and certification is a prerequisite for making or entering into this transaction, as imposed by 31 U.S.C. 1352. Any person who makes a prohibited expenditure or fails to file or amend a required certification or disclosure form shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure or failure. WI-04-0009 • Article XX: Public Records Access It is the policy of the Department to maintain an open and public process in the solicitation, submission, review, and approval of procurement activities related to this contract. Bid/proposal openings are public unless otherwise specified. Records may not be available for public inspection prior to issuance of the notice of intent to award or the award of the contract. The Recipient agrees to require its third party contractors and third party subcontractors at as many tiers of the Project as required to provide to the U.S. Secretary of Transportation and the Comptroller General of the United States, or their duly authorized representatives, access to all third party records as requested to conduct audits and inspections related to any third party contract that have not been awarded on the basis of competitive bidding for a capital or improvement Project, as required by 49 U.S.C. § 5325(a). The Recipient further agrees to require its third party contractors and third party subcontractors at as many tiers of the Project as required to provide sufficient access to third party procurement records as needed for compliance with Federal regulations or to assure proper Project management as determined by FTA. Article XXI: Federal Changes The Recipient agrees that it will comply with 49 CFR Part 18; U.S. Department of Transportation regulations relating to applicable FTA regulations,policies, procedures, and directives, including those directly listed or included by reference in Form FTA MA(6) dated October, 1999, as they may be amended or promulgated from time to time during the term of this Contract. Recipient's failure to so comply shall constitute a material breach of this Contract. • Article XXII: Clean Air This requirement applies to all contracts exceeding $100,000, including indefinite quantities where the amount is expected to exceed $100,000 in any year._The Recipient agrees to comply with all applicable regulations, standards, orders, and requirements implementing the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. In addition : (1) The Recipient agrees to comply with the applicable requirements of the U.S. EPA regulations, "Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C. or the Federal Transit Act," 40 C.F.R. Part 51, Subpart T; and"Determining Conformity of Federal Actions to State or Federal Implementation Plans," 40 C.F.R. Part 93. To support the requisite air quality conformity finding for the Project, the Recipient agrees to implement each air quality mitigation or control measure incorporated in the Project. The Recipient further agrees that any Project identified in an applicable State Implementation Plan as a Transportation Control Measure will be wholly consistent with the design concept and scope of the Project described in the State Implementation Plan. WI-04-0009 (2) U.S. EPA also imposes requirements implementing the Clean Air Act, as amended,that may apply to transit operators, particularly operators of large transit bus fleets. Accordingly, the Recipient agrees to comply with the following U.S. EPA regulations to the extent they are applicable to the Project: "Control of Air Pollution from Motor Vehicles and Motor Vehicle Engines,"40 C.F.R. Part 85; "Control of Air Pollution from New and In-Use Motor Vehicles and New and In-Use Motor Vehicle Engines: Certification and Test Procedures," 40 C.F.R. Part 86; and"Fuel Economy of Motor Vehicles,"40 C.F.R. Part 600. (3) The Recipient agrees to comply with the notification of violating facility requirements of Executive Order No. 11738, "Administration of the Clean Air Act and the Federal Water Pollution Control Act with Respect to Federal Contracts, Grants, or Loans,"42 U.S.C. § 7606 note. Article XXIII: Contract Work Hours and Safety Standards Act The Recipient agrees that it will comply with 40 USC § 327 -333 (1999); 29 CFR § 5 (1999); and 29 CFR § 1926 (1998); U.S. Department of Transportation regulations relating to overtime requirements for construction contracts over$2,000 using federal funds and turnkey, rolling stock, and operational contracts (excluding contracts for transportation services) in excess of$2,500. With regard to the safety standards the Recipient agrees to comply with OSHA requirements as applicable to construction contracts in excess of$2,000 only (excluding the purchase of supplies or materials or articles normally available on the open market). Article XXIV: Copeland Anti-Kickback Act • • The Recipient agrees that it will comply 18 U.S.C. § 874 and 40 U.S.C. § 276c, and U.S. DOL regulations, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in part by Loans or Grants from the United States," 29 C.F.R. Part 3 relating to minimum wages for construction contracts over$2,000, using federal funds. Article XXV: No Government Obligation to Third Parties The Recipient agrees that it will comply the U.S. Department of Transportation regulations relating to contractual liability of the Federal Government to third parties as follows: A. The Recipient and contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express 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 Recipient, contractor, or any other party(whether or not party to that contract)pertaining to any matter resulting from the underlying contract. WI-04-0009 B. The Recipient agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. Article XXVI: Program Fraud and False or Fraudulent Statements and Related Acts A. The Recipient acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 USC § 3801 et seq. and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Recipient 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 Recipient 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 Recipient to the extent the Federal Government deems appropriate. B. The Recipient 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 USC § 5307, the Government reserves the right to impose the penalties of 18 USC § 1001 and 49 USC § 5307(n)(1) on the Recipient, to the extent the Federal Government deems appropriate. C. The Recipient agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be ' modified, except to'identify the subcontractor who will be subject to the provisions. Article XXVII: Termination A. The Department may terminate this Contract at any time that the Secretary determines that the Recipient or their subcontractor has failed to perform in the manner called for in the contract or has failed to fulfill contract obligations. Failure of the Recipient or their subcontractor to comply with the terms and conditions of its grant application and/or the provisions of this Contract shall be considered cause for termination. B. The Recipient may terminate this Contract if so directed by their appropriate governing body for whatever reason such request to terminate is made. C. Both parties agree that notice of intent to terminate the contract shall be made in writing through "return-receipt certified mail," at least 30 calendar days prior to the proposed termination date. WI-04-0009 • D. Upon termination of this Contract under the provisions of paragraphs A, B or C of this Article, the Recipient agrees to dispose of the project facilities, equipment, and/or rolling stock, in accordance with Wisconsin Department of Transportation instructions. Article XXVIII: Government Debarment and Suspension Executive Order 12549, as implemented by 49 CFR Part 29,prohibits FTA recipients and sub- recipients from contracting for goods and services from organizations that have been suspended or debarred from receiving Federally-assisted contracts. Recipient agrees to submit a certification to the effect that it will not enter into contracts over $25,000 with suspended or debarred contractors and that it will require their contractors (and their subcontractors)to make the same certification to it. Recipients are required to pass this requirement on to subcontractors seeking subcontracts over $25,000. Thus the terms "lower tier covered participant" and "lower tier covered transaction" include both contractors and subcontractors and contracts and subcontracts over $25,000. The certification and instruction language is obtained at 29 CFR Part 29, Appendix B, and must be included in IFB's and RFP's (for inclusion by contractors in their bids or proposals) for all contracts over $25,000, regardless of the type of contract to be awarded. Article XXIX: Civil Rights The Recipient agrees that it will comply with Title VI of the Civil Rights Act of 1964 and all U.S. Department of Transportation regulations relating to enforcement of that Act. The following specific requirements apply to this contract: A. Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 USC § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 USC § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 USC § 12132, and Federal • transit law at 49 USC § 5332, the Recipient and contractor agree to not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition,the Recipient and contractor agree to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. B. Equal Employment Opportunity- The following equal employment opportunity requirements apply to the underlying contract: (1) Race, Color, Creed,National Origin, Sex - In accordance with Title VII of the Civil Rights Act, as amended, 42 USC § 2000e, and Federal transit laws at 49 USC § 5332, the Recipient and contractor agree to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor(U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq ., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 USC § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Recipient and contractor agree to take affirmative action to ensure that applicants are employed, and that employees are treated during WI-04-0009 • • employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to,the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition,the Recipient and contractor agrees to comply with any implementing requirements FTA may issue. (2) Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 USC § 623 and Federal transit law at 49 USC § 5332, the Recipient and contractor agree to refrain from discrimination against present and prospective employees for reason of age. In addition, the Recipient and contractor agree to comply with any implementing requirements FTA may issue. (3) Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 USC § 12112, the Recipient agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Recipient agrees to comply with any implementing requirements FTA may issue. C. The Recipient also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. Article XXX: Breaches and Dispute Resolution All contracts in excess of$100,000 shall contain provisions or conditions which will allow for administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as may be appropriate. This may include provisions for bonding, penalties for late or inadequate performance, retained earnings, liquidated damages or other appropriate measures. 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 the State of Wisconsin, the Chief of Public Transit. This decision shall be final and conclusive unless within 10 days from the date of receipt of its copy,the Recipient mails or otherwise furnishes a written appeal to the Chief of the Public Transit Section. In connection with any such appeal, the Recipient shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the Chief of Public Transit shall be binding and the Recipient will abide by the decision. Unless otherwise directed, the Recipient shall continue performance under this contract while matters in dispute are being resolved. Article XXXI: Labor Protection The Recipient agrees to comply with applicable transit employee protective requirements, terms, and conditions determined by the U.S. Secretary of Labor to be fair and equitable to protect the interests of WI-04-0009 employees employed under this contract and to meet the employee protective requirements of 49 U.S.C. A5333(b), and U.S. DOL guidelines at 29 C.F.R. Part 215, and any amendments thereto. Article XXXII: Disadvantaged Business Enterprises A. Policy. It is the policy of the U. S. Department of Transportation that disadvantaged business enterprises (DBE) as defined in 49 CFR Part 26 shall have the opportunity to participate in the performance of contracts financed in whole or in part with Federal funds under this Agreement. Consequently, the DBE requirements of 49 CFR Part 26 apply to this Agreement. B. DBE Obligation. The Recipient or its contractor agrees to ensure that disadvantaged business enterprises as defined in 49 CFR Part 26 have the opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds provided under this Agreement. In this regard, all recipients or contractors shall take all necessary and reasonable steps in accordance with 49 CFR Part 26 to ensure nondiscrimination in the award and administration of all contracts and subagreements supported with Federal assistance from the U.S. D.O.T. Article XXXIII: Incorporation of Federal Transit Administration (FTA) Terms All contractual provisions required by the USDOT, as set forth in FTA Circular 4220.1D, dated April 15, 1996 or any subsequent amendments, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Recipient shall not perform any act, fail to perform any act, or refuse to comply with any WisDOT requests that would cause WisDOT to be in violation of the FTA terms and conditions. Article XXXIV: Intelligent Transportation System Program The Recipient agrees that it will comply with all requirements of Section VII of FTA Notice, "FTA National ITS Architecture Policy on Transit Projects, "66 Fed. Reg. 1459, January 8, 2001, in the course of implementing an ITS project. The applicant further agrees that it will comply, and require its third party contractors and subrecipients to comply, with all applicable requirements imposed by Section V (Regional ITS Architecture) and Section VI (Project Implementation) of that Notice. Article XXXV: Access Requirements for Persons with Disabilities The Recipient agrees to comply with the requirements of 49 U.S.C. § 5301(d), which states the Federal policy that elderly persons and persons with disabilities have the same right as other persons to use mass transportation service and facilities, and that special efforts shall be made in planning and designing those services and facilities to implement that policy. The Recipient also agrees to comply with all applicable requirements of section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, which prohibits discrimination on the basis of handicaps, with the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. §§ 12101 et seq., which requires that accessible facilities and services be made available to persons with disabilities, including any subsequent amendments to that Act, and with the Architectural Barriers Act of 1968, as amended, 42 WI-04-0009 U.S.C. §§ 4151 et seq., which requires that buildings and public accommodations be accessible to persons with disabilities, including any subsequent amendments to that Act. In addition, the Recipient agrees to comply with all applicable requirements of the following regulations and any subsequent amendments thereto: (1)U.S. DOT regulations, "Transportation Services for Individuals with Disabilities (ADA)," 49 C.F.R. Part 37; (2) U.S. DOT regulations, "Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance," 49 C.F.R. Part 27; (3)Joint U.S. Architectural and Transportation Barriers Compliance Board(U.S. ATBCB)/U.S. DOT regulations, "Americans With Disabilities (ADA) Accessibility Specifications for Transportation Vehicles," 36 C.F.R. Part 1192 and 49 C.F.R. Part 38; (4)U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability in State and Local Government Services," 28 C.F.R. Part 35; (5) U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities," 28 C.F.R. Part 36; (6) U.S. General Services Administration(U.S. GSA)regulations, "Accommodations for the Physically Handicapped," 41 C.F.R. Subpart 101-19; (7) U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630; (8) U.S. Federal Communications Commission regulations, "Telecommunications Relay Services and Related Customer Premises Equipment for the Hearing and Speech Disabled," 47 C.F.R. Part 64, Subpart F; and (9) U.S. ATBCB regulations, "Electronic and Information Technology Accessibility Standards," 36 C.F.R. Part 1194; and (10) FTA regulations, "Transportation for Elderly and Handicapped Persons," 49 C.F.R. Part 609; (11) Any implementing requirements FTA may issue. Article XXXVI: Notification of Federal Participation To the extent required by law, in the announcement of any third party contract award for goods or services (including construction services)having an aggregate value of$500,000 or more,the Recipient agrees to specify the amount of Federal assistance to be used in financing that acquisition of goods and services and to express that amount of that Federal assistance as a percentage of the total cost of that third party contract. Article XXXVII: Privacy Act WI-04-0009 • (1) The Recipient agrees to comply with, and assures the compliance of its employees with,the information restrictions and other applicable requirements of the Privacy Act of 1974, 5 U.S.C. § 552a. Among other things, the Recipient agrees to obtain the express consent of the Federal Government before the Recipient or its employees operate a system of records on behalf of the Federal Government. The Recipient understands that the requirements of the Privacy Act, including the civil and criminal penalties for violation of that Act, apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may result in termination of the underlying contract. (2) The Recipient also agrees to include these requirements in each subcontract to administer any system of records on behalf of the Federal Government financed in whole or in part with Federal assistance provided by FTA. Article XXXVIII: Attachments All attachments to this Contract are incorporated herein by annexation(Attachment A, B, & C). Witness the execution of this Contract by the parties hereto in the manner most appropriate to each. STATE OF WISCONSIN DEPARTMENT OF TRANSPORTATION City of Oshkosh By: � By: SEE ATTACHED PAGE Mark J. Wolfgr , Admi ' trator Division of Transportation Investment Name: Management' Date: 40,1/Is Date: -50/r 3 FEIN: 39-6005563-00 W:btlr/public transit/programs/5309 program/5309 Contractl2 WI-04-0009 IN WITNESS THEREOF, the parties hereto have caused this Agreement to be executed by their respective proper officers and affixed their corporate seals hereto as of the day and year first above written. CITY OF OSHKOSH Va- MAR A ROHLOFF CITY MANAGER r ∎( , S PAMELA R. UBRIG CITY CLERK APPROVED BY: I hereby certify that the necessary provisions have been made to pay the liability which will accrue under this contract. . LORE •N PEGGY ENO CITY ATTORNEY DIRECTOR OF FINANCE ATTACHMENT A 2012 Section 5309 Capital Assistance Grant Grant#WI-04-0009 City of Oshkosh Revenue Rolling Stock - 68,750 $ 137,500 2 11.12.02 Purchase/Replacement 35ft Transit Bus $ $ $ $ $ - $ - Subtotal A $ 137,500 Federal Share (80%) $ 110,000 Local Share (20%) $ 27,500 Attachment A Oshkosh