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HomeMy WebLinkAboutR-2007-166 Washington State Department of Transportation Federal / State Capital Consolidated Grant AgreementA RESOLUTION RESOLUTION NO. R-2007- 166 authorizing and directing the City Manager of the City of Yakima to execute a Federal/State Capital Consolidated Grant Agreement and all other necessary documentation with the Washington State Department of Transportation to accept a Special Needs Transportation Grant. WHEREAS, the City currently provides and intends to continue to provide Paratransit Special Needs transportation services in Yakima as required by the Americans with Disabilities Act (ADA); and, WHEREAS, a Special Needs Paratransit grant has been awarded to Yakima Transit, and Yakima Transit's Special Needs Transportation Services program would meet grant requirements to provide an enhanced public transportation program for those with special needs who qualify under the ADA; and WHEREAS, after project review, the Council Transit Committee's recommendation is to approve the Special Needs Transportation Services projects, and WHEREAS, it is in the best interest of the, City to utilize the grant award to provide a Special Needs Transportation Services program in Yakima for those with special transportation needs who qualify under the ADA; now therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute the attached Federal/State Capital Consolidated Grant Agreement" with the Washington State Department of Transportation and all other necessary documentation for acceptance of the Special Needs Transportation Grant. ADOPTED BY THE CITY COUNCIL this 4thday of December 2007. A- 20U7/&'(o Federal/State Capital Consolidated Grant Agreement Washington State Department of Transportation 310 Maple Park Avenue SE PO Box 47387 Olympia, WA 98504-7387 Contact: Jerry Ayres (360) 705-7912 Contractor, Yakima Transit 2301 Fruitvale Boulevard Yakima, WA 98902-1228 Federal ID #: 91-6001293 Contact: Gary Pira (509) 576-6422 CFDA# 20.521 PROJECT COST . Federal Funds $ 0 State Funds $ 79,577 Contractor Funds 5 0 Total Funds $ ' 79,577 AGREEMENT NUMBER GCA5351 • Scope of Project: As set forth.in Exhibit 1, Scope of Project and Budget, attached and incorporated by this reference. Term of Project: July 1, 2007 through the useful life of the equipment. Service Area: The City of Yakima THIS AGREEMENT; entered into by the State of Wasiington Department of Transportation, hereinafter "WSDOT", and the above contractor, hereinafter "CONTRACTOR", and/or individually referred to the "PARTY"•and collectively referred to as the "PARTIES", WITNESSETH TI -IAT: WI-IEREAS, Federal funding is authorized under 49 USC chapter 53, Title 23 USC (Highways),; the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) enacted as Public Law 109-59, August 10, 2005; the Transportation Equity Act for the 21'1 Century (TEA -21) enacted as Public law 105-178; June 9, 1998, as amended, the National Capital Transportation Act of 1969, D.C. Official Code, §§ 9-1111.01 et seq., or other Federal legislation FTA administers to the extent FTA so determines; WI-IEREAS, funding is authorized under 49 USC § 5317 for New Freedom; and any subsequent amendments and resolutions thereto; WHEREAS, the State of Washington in its Sessions Laws of 2007, chapter 518, section 224, I(a)(b) and 2(a)(b), provides Rural Mobility and Paratransit/Special Needs funding through its 2007-2009 biennial appropriations to WSDOT; and WHEREAS, the State of Washington Paratransit/Special Needs Transit Formula funds provides funding to transit agencies for transportation related support of persons with special needs; NOW, THEREFORE, in consideration of the terms, conditions, performances and mutual covenants herein set forth and the attached Exhibit I, "Scope of Project and Budget", which is incorporated and made a part hereof, IT IS MUTUALLY AGREED AS FOLLOWS: Section 1 • Purpose of Agreement The purpose of this AGREEMENT is to provide funding to the CONTRACTOR for the acquisition of capital equipment to be used in the undertaking of transportation services to the residents and people within the State, hereinafter referred to as the "Project". Section 2 Scope of Project The CONTRACTOR shall undertake and complete the purchase of the capital equipment as detailed in Exhibit 1, "Scope of Project and Budget" and operate the Project Equipment within the area described in the caption space header above titled "Service Area" in accordance with the terms and conditions of this AGREEMENT. Page 1 of 17 GCA5351 Section 3 Term of Project The Project period of this AGREEMENT shall begin on the date shown in the caption space header above titled "Term of Project" and continues through the useful life of the Project Equipment, regardless of the date of signature and execution of the AGREEMENT, unless terminated as provided herein. WSDOT has defined the useful life of vehicle Project Equipment shown as the Vehicle Disposition Schedule in its "Guicle for Managing Your Public Transportation Grant for 2007-2009 State and Federal Grants Awarded by the Washington Stale Department of Transportation", and any amendments thereto, which is by this reference incorporated as if fully set out and shall constitute a full provision and term of this AGREEMENT. Non -vehicle Project Equipment useful life should be determined by using the North American Industry Classification System (NAICS) codes tables. Section 4 Contractor's Funds of Project Costs The "Total Project Cost" of the Project shall not exceed the amount indicated in the caption' space header above titled "PROJECT COST". The CONTRACTOR agrees to expend "Contractor's Funds" in an amount sufficient, when added together with the federal funds and/or state funds allocated for the Project, to ensure payment of eligible expenses as described in Exhibit I, "Scope of Project and Budget". The CONTRACTOR further agrees that there shall be no reduction in the amount specified as the Contractor's Funds unless there is a concurrent proportional reduction in the Federal and/or State funds as defined in Exhibit 1, Scope of Project and Budget of this AGREEMENT. If at any time the CONTRACTOR becomes aware that the cost which it expects to incur in the performance of this AGREEMENT will exceed or be substantially less than the amount indicated in the caption space header above titled "Project Cost", the CONTRACTOR shall notify WSDOT promptly in writing to that effect. The CONTRACTOR agrees that "Project Cost" eligible for Federal participation, including State Funds and Contractor's Funds used as match to FTA funds, must comply with the standards of OMB Circular A-87, Revised, "Cost Principles for State and Local Governments", or OMB Circular A-122, Revised, "Cost Principles for Non -Profit Organizations whichever is appropriate. Section 5 Inspection Upon Delivery The CONTRACTOR shall. inspect Project Equipment purchased pursuant to this AGREEMENT at the time of delivery to the CONTRACTOR. Upon receipt and acceptance of Project Equipment, the CONTRACTOR agrees that it has fully inspected the Project Equipment and accepts it as in good condition and repair, and is satisfied with the Project Equipment and that the Project Equipment complies with all regulations, rules, and laws. Section 6 Miscellaneous Charges and Conditions The CONTRACTOR shall pay all storage charges, parking charges, and fines, as well as any fees (including vehicle registration, license, safety, and emission control inspection fees), and taxes which may. be imposed with respect to said Project Equipment by a duly constituted governmental authority as the result of the CONTRACTOR's use or intended use of the Project Equipment. Required visual and road test inspection fees on vehicles for acceptance and software licensing use fees are eligible for reimbursement. All replacements, repairs, or substitutions of parts or equipment shall be at the cost and expense of the CONTRACTOR. Section 7 Payment A. WSDOT, using FTA grant funds and/or state grant funds, shall reimburse the CONTRACTOR's allowable expenses incurred in completing the Project described in Exhibit 1, Scope of Project and Budget. Allowable Project expenses shall be determined by WSDOT as described in WSDOT's "Guide to Managing Your Public Transportation Grant for 2007-2009 State and Federal Grants Awarded by the Washington State Department of Transportation", and any amendments thereto. In no event shall the total amount reimbursed by WSDOT hereunder exceed the federal or state funds identified in the caption space titled "Project Cost" above. B. Payment will be made by WSDOT on a reimbursable basis. Payment is subject to the submission to and approval by WSDOT of appropriate invoices, reports, and financial summaries. Any financial summaries submitted to .WSDOT must include a record of the actual costs. C. The CONTRACTOR's final payment request for state funding must be received by WSDOT by July 15, 2009, within 30 days of the completion of the Project or within 30 days of the termination of this AGREEMENT, whichever is sooner. Any payment request for state funds received after July 15, 2009 will not be eligible for reimbursement. D. For vehicle purchases, the Project Equipment titles shall designate WSDOT as the legal owner and the CONTRACTOR as the registered owner through the project period. WSDOT will release the interest of ownership of the Project Equipment to the CONTRACTOR in writing 30 days from the end of the useful life of the Project Equipment. Page 2 of 17 GCA5351 Section 8 Assignments, Subcontracts, and Leases A. Unless otherwise authorized in advance in writing by WSDOT, the CONTRACTOR shall not assign any Project Equipment under this AGREEMENT, or execute any contract, amendment, or change order thereto pertaining to the Project Equipment, or obligate ltsell in any manner with any third party with respect to its rights and responsibilities under this AGREEMENT or lease or lend the Project Equipment or any part thereof to be used by anyone not under the CONTRACTOR's direct supervision. B. The CONTRACTOR agrees to include Sections 9 through 30 of this AGREEMENT in each subcontract financed in whole or in part with federal assistance provided by FTA; and in all contracts it enters into for the employment of any individuals, procurement of any materials, or the performance of any work to be accomplished under this AGREEMENT, subject to the limitations set forth in Sections 22C.2 and D.2 of this AGREEMENT. It is further agreed that those clauses shall not be modified, except to identify the subcontractor or other person or entity that will be subject to its provisions. In addition, the following provision shall be included in any advertisement or invitation to bid for any procurement by the CONTRACTOR under this AGREEMENT: Statement of Financial Assistance - This AGREEMENT is subject to a /incrncial assistance contract between the Washington State Department of Transportation and the Federal Transit Administration and the appropriations of the State of Washington. Section 9 Reports and Use of Project Equipment A. The CONTRACTOR agrees that the Project Equipment shall be used for the provision of transportation service within the area described in the caption space titled "Service Area," above, for the Project Equipment's useful life as set forth in Exhibit 1, Scope of Project and Budget. The CONTRACTOR further agrees that it will not use or permit the use of the Project Equipment in a negligent manner or in violation of any law, or so as to avoid any insurance covering the same, or permit the Project Equipment to become subject to any lien, charge, or encumbrance. Should the CONTRACTOR unreasonably delay or fail to use the Project Equipment during the useful life of that Project Equipment, the CONTRACTOR agrees that it may be required to refund the entire amount of the Federal and/or State Funds expended on the Project. The CONTRACTOR shall immediately notify WSDOT when any Project Equipment is withdrawn from Project use or when Project Equipment is used in a manner substantially different from that identified in the "Scope of Project and Budget." If the Project Equipment is permanently removed from transportation service, the CONTRACTOR agrees to immediately contact WSDOT for instructions regarding the disposal of the Project Equipment. For vehicle purchases only, the CONTRACTOR further understands that the Project Equipment shall be used to provide passenger service levels as described below: I. A minimum of 100 passenger, revenue service miles per vehicle per week, or 2. A minimum of 1(10 one-way passenger trips per vehicle per week. B. Reports. The CONTRACTOR shall advise WSDOT regarding the progress of the Project at such times and in such manner as WSDOT and FTA may require, including, but not limited to, interim reports. The CONTRACTOR shall keep satisfactory written records with regard to the use of Project Equipment and shall submit the following reports to, and in a form and at such times prescribed by, WSDOT until the useful life of the Project Equipment expires: I . Reports describing the current usage of Project Equipment and other data which WSDOT and FTA may request. For vehicle purchases only, those reports include, but are not limited to: a. Vehicle Ridership b. Vehicle Mileage c. Service Hours d. Project Equipment Maintenance e. Vehicle Inventory Report 2. In the event any portion of the Project Equipment sustains disabling damage and/or triggers drug and alcohol testing, the CONTRACTOR shall notify WSDOT immediately after the occasion of the damage, including the circumstances thereof. 3. The CONTRACTOR shall collect and submit to WSDOT, at such time as WSDOT may require, such financial statements, data, records, contracts, and other documents related to the Project as may be deemed necessary by WSDOT and FTA. C. Remedies for Misuse or Noncompliance. The CONTRACTOR shall not use any Project Equipment in a manner different from that set forth in Exhibit I, Scope of Project and Budget, and the "Service Area" identified in the AGREEMENT. If WSDOT determines that Project Equipment has been used in a manner different from that set forth in Exhibit 1, Scope of Project and Budget, and the "Service Area" identified in the AGREEMENT, WSDOT may direct the CONTRACTOR to dispose of the Project Equipment acquired by the CONTRACTOR in accordance with FTA procedures. WSDOT may also withhold Grant payments should it determine that the CONTRACTOR has failed to comply with any provision of this AGREEMENT. If federal participation and funding is either reduced or canceled as a result of a breach by the CONTRACTOR, the CONTRACTOR is then liable for all damages from the breach, even though those damages exceed the price payable under this AGREEMENT. Page 3 of 17 GCA5351 Section 10 Maintenance of Project Equipment The CONTRACTOR shall make all necessary repairs and reasonably maintain the Project Equipment to assure it remains in good and operational condition for the useful life of the Project Equipment. All service, materials, and repairs in connection with the use and operation of the Project Equipment during its useful life shall be at the CONTRACTOR's expense. CONTRACTORS who are transit agencies must also have a Transit Asset Management Plan certified by WSDOT. All other CONTRACTORS must submit a written Vehicle Maintenance Plan to WSDOT for approval by September 30, 2007 or prior to the receipt of their first grant funded vehicle. The CONTRACTOR agrees to, at a minimum, service the Project Equipment and replace parts at intervals recommended in the manual provided by the manufacturer of such Equipment, or sooner if needed. The CONTRACTOR shall take the Project Equipment to an appropriate service and repair facility for any service and repair under the manufacturer's warranty. WSDOT and FTA shall not be liable for repairs, nor shall any such repairs be charged to either entity. The CONTRACTOR shall comply with the Equipment management requirements identified in 49 CFR Part 18.32(d) or 49 CFR Part I9.34(f) whichever is appropriate, the "Common Rule," which by this reference is incorporated herein; and any reference therein to "grantee" shall mean the CONTRACTOR. The CONTRACTOR shall retain records of all maintenance and parts replacement performed on the Project Equipment. The CONTRACTOR shall provide copies of such records to WSDOT, upon request. Section 11 General Compliance Assurance The CONTRACTOR agrees to give reasonable guarantees that it and its subcontractors or third party contractors under this AGREEMENT, will comply with all requirements imposed by, or pursuant to, the Federal Transit Act including any amendments thereto, and the Federal Regulations. The CONTRACTOR agrees to comply with the provisions of 49 CFR Part 18 or 49 CFR Part 19, whichever is applicable, and the "Common Rule" as defined in OMB Circular A-87 The CONTRACTOR agrees that the United States, any agency thereof, WSDOT and any of WSDOT's representatives, have not only the right to monitor the compliance of the CONTRACTOR with the provisions of this assurance, but also have the right to seek judicial enforcement with regard to any matter arising under the Federal Transit Act, the Federal Regulations, and this assurance. It is understood by the CONTRACTOR that this assurance obligates the CONTRACTOR and any transferee of the CONTRACTOR, or said transferee's successor(s), for the useful life of the Project Equipment. Section 12 Purchases The CONTRACTOR shall make purchases of any Project Equipment pursuant to this AGREEMENT through procurement procedures approved in advance by WSDOT and consistent with the following provisions: A. General Procurement Requirements. The CONTRACTOR shall comply with third party procurement requirements of 49 U.S.C. chapter 53 and other applicable Federal laws in effect now or as subsequently enacted; with USDOT third party procurement regulations of 49 C.F.R. § 18.36 or 49 C.F.R. § 19.40 through 19.48 and other applicable Federal regulations pertaining to third party procurements and subsequent amendments thereto to the extent those regulations are consistent with SAFETEA-LU provisions. The CONTRACTOR shall also comply with the provisions of FTA Circular 4220.1.E, "Third Party Contracting. Requirements", and any revision or replacement thereof; and applicable Federal regulations or requirements identified in 49 USC Part 18, "Uniform Administrative Requirements; and any amendments thereof, \vhich by this reference are incorporated herein; and any reference therein to' `Grantee" shall mean CONTRACTOR. B. Preference for United States Products and Services. To the extent applicable, the CONTRACTOR agrees to comply with the following U.S. preference requirernents: 1. Buy America. The CONTRACTOR agrees to comply with 49 U.S.C. § 5323(j), with FTA regulations, "Buy America Requirements," 49 C.F.R. Part 661, and with implementing guidance FTA may issue. 2. Cargo Preference—Use of United States -Flag Vessels. The CONTRACTOR agrees to comply with 46 App. U.S.C. § 1241(b)(I) and U.S. Maritime Administration regulations, '`Cargo Preference—U.S.-Flag Vessels," 4,6 C.F.R. Part 381, to the extent those regulations apply to the Project. 3. Fly America. The CONTRACTOR understands and agrees that the Federal Government will not participate in the costs of international air transportation of any persons involved in or property acquired for the Project unless that air transportation is provided by U.S.-flag air careers to the extent service by U.S.-flag air carriers is available, in accordance with the International Air Transportation Fair Competitive Practices Act of 1974, as amended, 49 U.S.C. § 40118, and with U.S. GSA regulations, "Use of United States Flag Air Carriers," 41 C.F.R. §§ 301-10.131 through 301-10.143. C. Bus Testing. To the extent applicable, the CONTRACTOR agrees to comply with the requirements of 49 U.S.C. § 5318(e) and FTA regulations, "Bus Testing," 49 C.F.R. Part 665, and any revision thereto. D. Pre -Award and Post -Delivery Requirements. The CONTRACTOR agrees to comply with the requirements of 49 U.S.C. § 5323(m) and FTA regulations, "Pre -Award and Post -Delivery Audits of Rolling Stock Purchases," 49 C.F.R. Part 663, and any revision thereto. Page 4 of 17 GCA5351 E. Geographic Restrictions. The CONTRACTOR agrees to not use any state or local geographic preference, except those expressly mandated or encouraged by federal statute or as permitted by FTA. F. Government Orders. In case any lawful government authority shall make any order with respect to the Project or Project Equipment, or any part thereof, or the PARTIES hereto or either PARTY, Y, the CONTRACTOR shall cooperate with WSDOT in carrying out such order and will arrange its operation and business so as to enable WSDOT to comply with the terms of the order. Section 13 Charter Service Operations The CONTRACTOR shall comply with 49 U.S.C. 5323(d) and 49 CFR Part 604, which state that recipients and subrecipients 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 under one, of the exceptions at 49 CFR 604.9. Any charter service provided under one of the exceptions must be "incidental," i.e., it must not interfere with or detract from the transportation services provided under this contract. Section 14 School Bus Operations The CONTRACTOR agrees to comply with 49 U.S.C. 5323(0 and 49 CFR Part 605, which state that recipients and subrecipients of FTA assistance may not engage in school bus operations exclusively for the transportation of students and school personnel in competition with private school bus operators unless qualified under specified exemptions. When operating exclusive school bus service under an allowable exemption. recipients and subrecipients may not use federally funded Equipment, vehicles, or facilities. Section 15 Incorporation of Federal Terms A. Purchasing. This AGREEMENT's provisions include. in part, certain Standard Terms and Conditions required by FTA, whether or not expressly set forth herein. All contractual provisions as set forth in FTA Circular 4220.1E, are hereby incorporated by reference. All FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this AGREEMENT. The CONTRACTOR shall not perform any act, fail to perform any act, or refuse to comply with any WSDOT request, which would cause WSDOT to be in violation of any FTA term or condition. B. Federal Changes. The CONTRACTOR shall at all times comply with all applicable FTA regulations, policies, procedures and directives, whether or not they are referenced in this AGREEMENT and agrees to include any amendments promulgated by the FTA, during the term of this AGREEMENT. The CONTRACTOR 's failure to so comply shall constitute a material breach of this AGREEMENT. Section 16 No Obligation by the Federal Government A. WSDOT and the CONTRACTOR acknowledge and agree that, regardless of any concurrence by the Federal Government or approval of the solicitation or award of this AGREEMENT, the Federal Government is not a party to this AGREEMENT and shall not be subject to any obligations or liabilities to the CONTRACTOR or any other party (whether or not a PARTY to this AGREEMENT) pertaining to any matter resulting from this AGREEMENT. B. No contract between the CONTRACTOR and its subcontractors shall create any obligation or liability of WSDOT with regard to this AGREEMENT without WSDOT's specific written consent, notwithstanding its concurrence in, or approval of, the award of any contract or subcontract or the solicitations thereof. The CONTRACTOR hereby agrees to include this provision in all contracts it enters into for the employment of any individuals, procurement of any materials, or the performance of any work to be accomplished under this AGREEMENT. Section 17 Personal Liability of Public Officers No officer or employee of WSDOT shall be personally liable for any acts or failure to act in connection with this AGREEMENT, it being understood that in such matters they are acting solely as agents of WSDOT. Section 18 Ethics A. Code of Ethics. The CONTRACTOR agrees to maintain a written code or standards of conduct that shall govern the performance of its officers, employees, board members, or agents engaged in the award and administration of contracts supported by federal assistance. The code or standards shall provide that the CONTRACTOR's officers, employees, board members, or agents may neither solicit nor accept gratuities, favors, or anything of monetary value from any present or potential contractor or sub -recipient. The CONTRACTOR may set minimum rules where the financial interest is not substantial, or the gift is an unsolicited item of nominal intrinsic value. These codes or standards shall prohibit the CONTRACTOR's officers, employees, board members, or agents from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest or personal gain. As permitted by state or local law or regulations, such code or standards shall Page 5 of 17 GCA5351 include penalties, sanctions, or other disciplinary actions for violations by the CONTRACTOR's officers, employees, board members, or agents, or by subcontractors or sub -recipients or their agents. The CONTRACTOR must fully comply with all the requirements and obligations of chapter 42.52 RCW that govern ethics in state and local governments. I. Personal Conflict of Interest, The CONTRACTOR's code or standards shall prohibit the CONTRACTOR's employees, officers, board members, or agents from participating in the selection, award, or administration of a contract supported by Federal Funds if a real or apparent conflict of interest would be involved. Such a conflict would arise when any of the PARTIES set forth below has a financial or other interest in the firm or entity selected for award: a. The employee, officer, board member, or agent; b. Any member of his or her immediate family; c. His or her partner; or d. An organization that employs, or is about to employ, any of the above. 2. Organizational Conflict of Interest. The CONTRACTOR's code or standard of conduct must include procedures for identifying and preventing real and apparent organizational conflicts of interest. An organizational conflict of interest exists when the nature of the work to be performed under a proposed third party contract may, without some restrictions on future activities, result in an unfair competitive advantage to the third party contractor or impair its objectivity in performing the work under this AGREEMENT. B. Debarment and Suspension. The CONTRACTOR agrees to comply with the requirements of Executive Orders Numbers 12549 and 12689, "Debarment and Suspension, "31 U.S.C. §6101 note, and U.S. DOT regulations "Government -wide Debarment and Suspension (Non -procurement)" at 49 C.F.R. Part 29. The CONTRACTOR agrees to review the Excluded Parties Listing System at http//epls.arnetrgov% before entering into ant contracts. C. Bonus or Commission. The CONTRACTOR affirms that it has not paid, and agrees not to pay, any bonus or commission to obtain approval of its application for federal financial assistance for this Project. D. Relationships with Employees and Officers of WSDOT. The CONTRACTOR shall not extend any loan, gratuity or gift of money in any form whatsoever to any employee or officer of WSDOT, nor shall the CONTRACTOR rent or purchase any Equipment and materials from any employee or officer of WSDOT. E. Employment of Former WSDOT Employees. The CONTRACTOR hereby warrants that it shall not engage on a full, part- time, or other basis during the period of this AGREEMENT, any professional or technical personnel who are, or have been, at any time during the period of this AGREEMENT, in the employ of WSDOT without written consent of WSDOT. F. Restrictions on Lobbying. The CONTRACTOR agrees to: 1. Comply with 31 U.S.C. § 1352(a) and will not use Federal assistance to pay the costs of influencing any officer or employee of a Federal agency, Member of Congress, officer of Congress or employee of a member of Congress, in connection with making or extending the Grant AGREEMENT or Cooperative Agreement; and 2. Comply, and assure compliance by each subcontractor at any tier and each sub -recipient at any tier, with applicable requirements of U.S. DOT regulations, "New Restriction on Lobbying," 49 C.F.R. Part 20, modified as necessary by 31 U.S.C. §1352; and 3. Comply with federal statutory provisions to the extent applicable prohibiting the use of Federal assistance Funds for activities designed to influence Congress or a state legislature on legislation or appropriations, except through proper, official channels. G. Employee Political Activity. To the extent applicable, the CONTRACTOR agrees to comply with the provisions of the "I -latch Act," 5 U.S.C. §§ 1501 through 1508, and §§ 7324 — 7326, and Office of Personnel Management regulations, "Political Activity of State or Local Officers or Employees," 5 C.F.R. Part 151. The "Hatch Act" limits the political activities of state and local agencies and their officers and employees, whose principal employment activities are financed in whole or in part with Federal Funds including a loan, grant, or cooperative agreement. Nevertheless, in accordance with 49 U.S.C. § 5307(k)(2)(B) and 23 U.S.C. § 142(g), the "Hatch Act" does not apply to a non -supervisory employee of a transit system (or of any other agency or entity performing related functions) receiving assistance pursuant to the SAFETEA-LU provisions and/or receiving FTA assistance to whom the "Hatch Act" does not otherwise apply. H. False or Fraudulent Statements or Claims. The CONTRACTOR acknowledges and agrees that: 1. The Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. §§ 3801 et seq., and USDOT regulations, "Program Fraud Civil Remedies," 49 CFR Part 31, apply to its activities in connection with the Project. Accordingly, by executing this AGREEMENT, the CONTRACTOR certifies or affirms the truthfulness and accuracy of each statement it has made, it makes, or it may make in connection with the Project covered by this AGREEMENT. In addition to other penalties that may apply, the CONTRACTOR also acknowledges that if it makes a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986, as amended, on the CONTRACTOR to the extent the Federal Government deems appropriate. 2. Criminal Fraud: if the CONTRACTOR makes a false, fictitious, or fraudulent claim, statement, submission, certification, assurance, or representation to the Federal Government or includes a false, fictitious, or fraudulent statement or representation in any agreement in connection with this Project authorized under 49 U.S.C. Chapter 53 or any other Federal law, the Federal Page 6 of 17 GCA5351 Government reserves the right to impose on the CONTRACTOR the penalties of 49 U.S.C. § 5323(1), 18 U.S.C. § 1001 or other applicable Federal law to the extent the Federal Government deems appropriate. Section 19 Compliance with Laws and Regulations The CONTRACTOR agrees to abide by all applicable state and federal laws and regulations including but not limited to, those concerning employment, equal opportunity employment, nondiscrimination assurances, project record keeping necessary to evidence compliance with such federal and state laws and regulations, and retention of all such records. The CONTRACTOR will adhere to all of the nondiscrimination provisions in Chapter 49.60 RCW. Section 20 Civil Rights The CONTRACTOR shall comply with all applicable civil rights laws, regulations and directives except to the extent that the Federal Government determines otherwise in writing. These include but are not limited to, the following: A. Nondiscrimination in Federal Transit Programs. The CONTRACTOR agrees to comply, and assures compliance by each third party contractor at any tier, with the provisions of 49 U.S.C. §5332, which prohibits discrimination on the basis of race, color, creed, national origin, sex, or age, and prohibits discrimination in employment or business opportunity; B. Nondiscrimination --Title VI of the Civil Rights Act. The CONTRACTOR agrees to comply, and assure compliance by each third party contractor at any tier, with all provisions prohibiting discrimination on the basis of race, color, or national origin, of Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000d el seq.; and USDOT regulations, "Nondiscrimination in Federally -Assisted Programs of the Department of Transportation --Effectuation of Title VI of the Civil Rights Act", 49 CFR Part 21. Except to the extent FTA determines otherwise in writing, the CONTRACTOR also agrees to comply with any applicable implementing Federal directives that may be issued; C. Equal Employment Opportunity. The CONTRACTOR agrees to comply, and assures compliance by each third party contractor at any tier, with all requirements of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and 49 U.S.C. § 5332 and any implementing Federal regulations and any subsequent amendments thereto. Except to the extent FTA determines otherwise in. writing, The CONTRACTOR also agrees to comply with any applicable Federal equal employment opportunity (EEO) directives that may be issued. Accordingly: 1. The CONTRACTOR agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, sex, disability, age, or national origin. 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, creed, sex, disability, age, or national origin. Such action shall include, but not be limited to, 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. The CONTRACTOR shall also comply with any implementing requirements FTA may issue. 2. If the CONTRACTOR is required to submit and obtain Federal Government approval of its EEO program, that EEO program approved by the Federal Government is incorporated by reference and made part of this AGREEMENT. Failure by the CONTRACTOR to carry out the terms of that EEO program shall be treated as a violation of this AGREEMENT. Upon notification to the CONTRACTOR of its failure to carry out the approved EEO program, the Federal Government may impose such remedies, as it considers appropriate, including termination of federal financial assistance, or other measures that may affect the CONTRACTOR's eligibility to obtain future federal financial assistance for transportation projects. D. Nondiscrimination on the Basis of Sex. The CONTRACTOR agrees to comply with all applicable requirements of Title IX oldie Education Amendments of 1972, as amended, 20 U.S.C. §§ 1681 et seq.; with U.S. DOT regulations "Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance", 49 C.F.R. Part 25; and with any implementing directives that U.S. DOT or FTA may promulgate, which prohibit discrimination on the basis of sex. E. Nondiscrimination on the basis of Age. The CONTRACTOR agrees to comply with applicable requirements of: 1. The Age Discrimination Act of 1975, as amended, 42 U.S.C. §§ 6101 ei seq., and with implementing U.S. Health and Human Services, "Nondiscrimination on the basis of Age in Programs and Activities Receiving Federal Assistance", 45 C.F.R. Part 90, which prohibits discrimination on the basis of age. • 2. The Age Discrimination in -Employment Act (ADEA), 29 U.S.C. §§ 621 through 634, and with implementing U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations, "Are Discrimination in Employment Act", 29 C.F.R. Part 1625. F. Disabilities -Employment. In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the CONTRACTOR 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 CONTRACTOR agrees to comply with any implementing requirements FTA may issue. G. Disabilities -Access. The CONTRACTOR agrees to comply with the requirements of 49 U.S.C. § 5301(d) which state the Federal policy that the elderly and persons with disabilities have the same rights as other persons to use mass transportation service Page 7 of 17 GCA5351 and facilities, and that special efforts shall be made in planning and designing those services and facilities to implement said policy. The CONTRACTOR also agrees to comply with all applicable reg0irements of section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, which prohibit discrimination on the basis of handicap; with the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. §§ 12101 et seq., which requires the provision of accessible facilities and services to be made available to persons with disabilities; and the Architectural Barriers Act of 1968, as amended, 42 U.S.C. §§ 4151 et seq, which requires that buildings and public accommodations be accessible to persons with disabilities; and with the Federal regulations, including any amendments thereto following U.S. DOT regulations, "Transportation Services for Individuals with Disabilities (ADA)," 49 C.F.R. Part 37; 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; Joint U.S. Architectural and Transportation Barriers Compliance Board U.S. DOT regulations; "Americans with Disabilities (ADA) Accessibility Specifications for Transportation Vehicles," 36 C.F.R. Part 1 192 and 49 C.F.R. Part 38; U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability in State and Local Government Services," 28 C.F.R. Part 35; U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities," 28 C.F.R. Part 36; U.S. GSA regulations, "Accommodations for the Physically Handicapped," 41 C.F.R. Subpart 101-19; 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; U.S. Federal Communications Commission regulations, "Telecommunications Relay Services and Related Custom Premises Equipment for the Hearing and Speech Disabled," 47 C.F.R. Part 64, Subpart F; U.S. ATBCB regulations, "Electronic and Information Technology Accessibility Standards," 36 C.F.R. Part 1194; FTA regulations, "Transportation for Elderly and Handicapped Persons," 49 C.F.R. Part 609; and Federal civil rights and nondiscrimination directives implementing the foregoing regulations, except to the extent the Federal Government determines otherwise in writing. H. Drug or Alcohol Abuse. Confidentiality and Other Civil Rights Protections. The CONTRACTOR agrees to comply with the confidentiality and other civil rights provisions of the Drug Abuse Office and Treatment Act of 1972, as amended 21 U.S.C. §§ 1 101 et seq.; with the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970, as amended; 42 U.S.C. §§ 4541 et seq.; and comply with the Public Health Service Act of 1912, as amended, 42 U.S.C. §§ 201 et seq. and any subsequent amendments to these laws. I. Access to Services for Persons with Limited English Proficiency. The CONTRACTOR agrees to comply with the policies of Executive Order No. 13166, "Improving Access to Services for Persons with Limited English Proficiency," 42 U.S.C. § 2000d-1 note, and with provisions of U.S. DOT Notice "DOT Guidance to Recipients on Special Language Services to Limited English Proficient (LEP) Beneficiaries," 66 Fed. Reg. 6733 et seq., January 22, 2001. J. Environmental Justice. The CONTRACTOR agrees to comply with the policies of Executive Order No. 12898, "Federal Actions to Address Environmental Justice in Minority populations and Low-income Populations", 42 U.S.C. § 4321 note, except to the extent that the Federal Government determines otherwise in writing. K. Other Nondiscrimination Statutes. The CONTRACTOR agrees to comply with all applicable provisions of other Federal Laws, regulations, and directives pertaining to and prohibiting discrimination and other nondiscrimination statute(s) that may apply to the Project including chapter 49.60 RCW. Section 21 Participation of Disadvantaged Business Enterprises The CONTRACTOR shall take the following measures to facilitate participation by disadvantaged business enterprises (DBE) in the Project: A. The CONTRACTOR agrees to comply with section 1101(b) of SAFETEA-LU, 23 U.S.C. § 101 note, and U.S. DOT regulations, "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs," 49 C.F.R. Part 26; and B. The CONTRACTOR agrees that it shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any third party contract, or sub -agreement supported with federal assistance derived from the U.S. DOT or in the administration of its DBE program or the requirements of 49 C.F.R. Part 26. The CONTRACTOR agrees to take all necessary and reasonable steps under 49 C.F.R. Part 26 to ensure nondiscrimination in the award and administration of all third party contracts and sub -agreements supported with Federal assistance derived from the U.S. DOT. The CONTRACTOR's DBE program, as required by 49 C.F.R. Part 26 and.approved by the U.S. DOT, is incorporated by reference and made part of this AGREEMENT. Implementation of the DBE program is a legal obligation, and failure to carry out its terms shall be treated as violation of this AGREEMENT. Upon notification to the CONTRACTOR of its failure to implement its approved DBE program, the U.S. DOT may impose sanctions as provided for under 49 C.F.R. Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. § 1001, and/or the Program Fraud Civil Remedies Act, 31 U.S.C. SSS 3801 et seq. Page 8 of 17 GCA5351 Section 22 Energy Conservation and Environmental Requirements A. Energy Conservation. The CONTRACTOR shall comply with the mandatory standards and policies relating to energy efficiency standards and policies within the Washington State energy conservation plan issued in compliance with the Energy Policy and Conservation Act, 42 U.S.C. §§ 6321 et seq., and any amendments thereto. B. Environmental Protection. The Recipient agrees to comply with all applicable requirements of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§ 4321-4335; Executive Order No. 11514, as amended, "Protection and Enhancement of Environmental Quality," 42 U.S.C. § 4321 note; FTA statutory requirements at 49 U.S.C. § 5324(b); U.S. Council on Environmental Quality regulations imposing requirements for compliance with the National Environmental Policy Act of 1969, as amended, 40 C.F.R. Part 1500 - 1508; joint Federal Highway Administration (FHWA)/FTA regulations, "Environmental Impact and Related Procedures," 23 C.F.R. Part 771 and 49 C.F.R. Part 622, and subsequent Federal environmental protection regulations that mat be promulgated. As a result of enactment of 23 U.S.C. §§ 139 and 326 as well as amendments to 23 U.S.C. § 138, environmental decision making requirements imposed on FTA projects are to be implemented consistent with the joint FHWA/FTA document, "Interim,Guidance for Implementing Key SAFETEA-LU Provisions on Planning, Environment, and Air Quality for joint FI IWA/FTA Authorities," dated September 2, 2005. and any subsequent applicable Federal directives that may be issued, except to the extent that FTA determines otherwise in writing C. Clean Water. In the event that the Federal share, identified in "Project Cost" of this AGREEMENT, exceeds $100,000, the CONTRACTOR shall comply with all applicable standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. §`; 1.251 et seq. 1. The CONTRACTOR agrees to report each violation to WSDOT and understands and agrees that WSDOT will, in turn, report each violation, as required, to the FTA and to the appropriate EPA Regional Office. 2. The CONTRACTOR also agrees to include these requirements in each subcontract that exceeds 5100,000 and is financed in whole or in part with Federal assistance provided by FTA. D. Clean Air. In the event that the federal share, identified in "Project Cost" exceeds $100,000, the CONTRACTOR shall comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401- 7671 el seq. 1. The CONTRACTOR agrees to report each violation to WSDOT and understands and agrees that WSDOT will, in turn, report each violation to the FTA and to the appropriate EPA Regional Office 2. The CONTRACTOR also agrees to include these requirements in each contract exceeding 5100,000 financed in whole or in part with Federal assistance provided by the FTA. Section 23 Accounting Records A. Project Accounts. The CONTRACTOR agrees to establish and maintain for the Project either a separate set of accounts or separate accounts within the framework of an established accounting system that can be identified with the Project, in accordance with applicable federal regulations and other requirements that FTA may impose. The CONTRACTOR agrees that all checks, payrolls, invoices, contracts, vouchers, orders, or other accounting documents pertaining in whole or in part to the Project shall be clearly identified, readily accessible and available to WSDOT and FTA upon request, and, to the extent feasible, kept separate from documents not pertaining to the Project. B. Funds Received or Made Available for the Project. The CONTRACTOR agrees to deposit in a financial institution, all advance Project payments it receives from the Federal Government and record in the Project Account all amounts provided by the Federal Government in support of the Grant AGREEMENT or Cooperative AGREEMENT and all other funds provided for, accruing to, or otherwise received on account of the Project (Project funds) in accordance with applicable Federal regulations and other requirements FTA may impose. Use of financial institutions owned at least 50 percent by minority group members is encouraged. C. Documentation of Project Costs and Program Income. The CONTRACTOR agrees to support all costs charged to the Project, including any approved services contributed by the CONTRACTOR or others, with properly executed payrolls, time records, invoices, contracts, or vouchers describing in detail the nature and propriety of the charges. The CONTRACTOR also agrees to maintain accurate records of all program income derived from implementing the Project, except certain income determined by FTA to be exempt from Federal program income requirements. D. Checks, Orders, and Vouchers. The CONTRACTOR agrees to refrain from drawing checks, drafts, or orders for goods or services to be charged against the Project Account until it has received and filed a properly signed voucher describing in proper detail the purpose for the expenditure. Page 9 of 17 GCA5351 Section 24 Audits, Inspection, and Retention of Records A. Submission of Proceedings, Agreements, and Other Documents. During the course of the Project and for six (6) years thereafter, the CONTRACTOR agrees to retain intact and to provide any data, documents, reports, records, contracts, and supporting materials relating to the Project as WSDOT may require. Reporting and record-keeping requirements are set forth in 49 C.F.R. Part 19. Project closeout does not alter these recording and record-keeping requirements. Should an audit, enforcement, or litigation process be commenced, but not completed, during the aforementioned six-year period then the CONTRACTOR's obligations hereunder shall be extended until the conclusion of that pending audit, enforcement, or litigation process. B. General Audit Requirements. The CONTRACTOR agrees to perform the financial and compliance audits required by the Single Audit Act Amendments of 1996, 31 U.S.C. §§ 7501 el seq. As provided by 49 C.F.R. § 19.26, these financial and compliance audits must comply with the provisions of OMB Circular A-133, Revised, "Audits of States, Local Governments. and Non -Profit Organizations, " the latest OMB A-133 Compliance Supplement for U.S. DOT, and any further revision or supplement thereto. The CONTRACTOR also agrees to obtain any other audits required by the Federal Government. The CONTRACTOR agrees that audits will be carried out in accordance with U.S. General Accounting Office "Government Auditing Standards". The CONTRACTOR agrees to obtain any other audits required by WSDOT. Project closeout will not alter the CONTRACTOR's audit responsibilities. C. Inspection. The CONTRACTOR agrees to permit WSDOT, the State Auditor, the United States Department of Transportation, and the Comptroller General of the United States, or their authorized representatives, to inspect all Project work materials, payrolls; maintenance records, and other data, and to audit the books, records, and accounts of the CONTRACTOR and its contractors pertaining to the Project. The CONTRACTOR agrees to require each third party contractor whose contract award is not based on competitive bidding procedures as defined by the United States Department of Transportation to permit WSDOT, the State Auditor, the United States Department of Transportation, and the Comptroller General of the United States, or their duly authorized representatives, to inspect all work, materials, payrolls, and other data and records involving that third party contract, and to audit the books, records, and accounts involving that third party contract as it affects the Project as required by 49 U.S.C. § 5325(g) . Section 25 Labor Provisions A. Contract Work Hours and Safety Standards Act. The CONTRACTOR shall comply with, and shall require the compliance by each subcontractor at any tier, any applicable employee protection requirements for non -construction employees as defined by the Contract Work Hous and Safety Standards Act, as amended, 40 U.S.C. § 3701 el seq., and specifically, the wage and hour requirements of section 102 of that Act at 40 U.S.C. § 3702 and U.S. DOL regulations, "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Non -construction Contracts Subject to the Contract Work Hours and Safety Standards Act)" at 29 C.F.R. Part 5; and the safety requirements of section 107 of that Act at 40 U.S.C. § 3704, and implementing U.S. DOL regulations, "Safety and Health Regulations for Construction," 29 C.F.R. Part 1926. B. Fair Labor Standards Act. The CONTRACTOR agrees that the minimum wage and overtime provisions of the Fair Labor Standards Act, as amended, 29 U.S.C. §§ 201 et seq., apply to employees performing work involving commerce, and apply to any local government employees that are public transit authority employees. The CONTRACTOR shall comply with the Fair Labor Standards Act's minimum wage and overtime requirements for employees performing work in connection with the Project. C. Overtime Requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty (40) hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty (40) hours in such workweek. D. Payrolls and Basic Records. Payrolls and basic records relating thereto shall be maintained by the CONTRACTOR during the course oldie work and preserved for a period of six (6) years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the Project). Such records shall contain the name. address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis -Bacon Act, 40 U.S.C. § 3141 et .seq., and pursuant to 49 U.S.C. § 5333(a) et seq., daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(I)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section I (b)(2)(B) of the Davis -Bacon Act, 40 U.S.C. § 3141 et seq. and pursuant to 49 U.S.C. §5333(a), the CONTRACTOR shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. CONTRACTOR's employing apprentices or trainees under approved programs Page 10 of 17 GCA5351 shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. E. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (A) of this section the CONTRACTOR and any subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such CONTRACTOR and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic. including watchmen and guards, employed in violation of the clause set forth in paragraph (A) of this section, in the sum of ten dollars (S 10) for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty (40) hours without payment of the overtime wages required by the clause set forth in paragraph (C) of this section. F. Withholding for unpaid wages and liquidated damages. The CONTRACTOR shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the CONTRACTOR or subcontractor under any such contract or any other federal contract with the same prime CONTRACTOR, or any other federally -assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime CONTRACTOR, such sums as may be determined to be necessary to satisfy any liabilities of such CONTRACTOR or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (E) of this section. G. Transit Employee Protective Agreement. As a recipient of funds under TEA -21, SAFETEA-LU, 23 U.S.C. j 10, 49 U.S.C. jj 5309, 53 I I , 531 1(f), 5316, 5317 or a public agency recipient of funds under 49 U.S.C. j j 5310, the CONTRACTOR shall carry out the Project in compliance with the applicable terms and conditions determined by the U.S. Secretary of Labor to be fair and equitable to protect the interests of employees affected by the Project and that comply with the requirements of 49 U.S.C. j 5333 (b), and with the U. S. DOL guidelines, "Section 5333(b), Federal Transit Law," 29 C.F.R. Part 215 and any amendments thereto. These terms and conditions are identified in U.S. DOL's certification of transit employee protective arrangements to FTA. The CONTRACTOR agrees to implement the Project in accordance with die conditions stated in that U.S. DOL certification, which certification and any documents cited therein are incorporated by reference and made part of this AGREEMENT. The CONTRACTOR agrees to comply with the terms and conditions of the Special Warranty for the Non - urbanized Area Program agreed to by the U.S. Secretaries of Transportation and Labor, dated May 31, 1979, and the procedures implemented by U.S. DOL or any revision thereto. Section 26 Planning and Private Enterprise FTA Requirements. The CONTRACTOR agrees to implement the Project in a manner consistent with the plans developed in compliance with the applicable planning and private enterprise provisions of 49 U.S.C. jj 5303, 5304, 5306, and 5323(a)(I); joint Federal Highway Administration (FHWA)/FTA document, "Interim Guidance for Implementing SAFETEA-LU Provisions on Planning, Environment, and Air Quality for Joint FHWA/FTA Authorities," dated September 2, 2005, as amended by joint FHWA/FTA guidance, "SAFETEA-LU Deadline for New Planning Requirements (July I, 2007)," dated May 2, 2006; joint FHWA/FTA regulations, "Planning Assistance and Standards," 23 C.F.R. Part 450 and 49 C.F.R. Part 613; and with FTA regulations, '`Major Capital Investment Projects," 49 C.F.R. Part 61 1, to the extent that these regulations are consistent with the SAFE"I'EA-LU amendments to the public transportation planning and private enterprise laws, and when promulgated, any subsequent amendments to those regulations. To the extent feasible, the CONTRACTOR agrees to comply with the provisions of 49 U.S.C. j 5323(k), which afford governmental agencies and non-profit organizations that receive Federal assistance for non- emergency transportation from Federal Governmental sources (other than U.S. DOT) an opportunity to be included in the design, coordination, and planning of transportation services. Section 27 Substance Abuse • A. Drug and Alcohol Abuse - The CONTRACTOR agrees to establish and implement a drug and alcohol testing program that complies with 49 CFR Parts 655, produce any documentation necessary to establish its compliance with Parts 655, and permit any authorized representative of the United States Department of Transportation or its operating administrations and WSDOT to inspect the facilities and records associated with the implementation of the drug and alcohol testing program as required under 49 CFR Parts 655 and review the testing process. The CONTRACTOR agrees further to submit annually the Management Information System (MIS) reports to WSDOT by February 28`r' each year for the useful life of the Project Equipment. B. Privacy Act - The CONTRACTOR agrees to comply with the confidentiality and other civil rights provisions of the Drug Abuse Office and Treatment Act of 1972, Pub. L. 92-255, March 21, 1972, the Comprehensive Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970, Pub. L. 91-616, December 31, 1970, and the Public Health Services Act of 1912, 42 U.S.C. j j 290dd-3 and 290ee-3 including amendments to these acts. The CONTRACTOR understands that the requirements of the Privacy Act, including the civil and criminal penalties for violation of that Act. apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may result in termination of the underlying AGREEMENT. Page 11 of 17 GCA5351 Section 28 Liens on Equipment WSDOT shall hold legal title to all vehicles the CONTRACTOR acquires and have legal ownership to any non -vehicle Project Equipment the CONTRACTOR acquires or modifies using the Federal and/or State Funds identified in the "PROJECT COST" of this AGREEMENT. The CONTRACTOR accepts WSDOT's legal ownership of the Project Equipment during its useful life and agrees to follow the terms stated in Section 9A of this AGREEMENT regarding liens and disposal of said Project Equipment. The legal title or lien shall cover 80 percent of the disposable value of the Project Equipment and may be satisfied only by proper disposal of the Project Equipment in a manner determined by WSDOT. Section 29 Loss or Damage to Project Equipment A. The CONTRACTOR, at its own expense, shall cover any loss, theft, damage; or destruction of the Project Equipment using either of the following methods: I. The CONTRACTOR shall maintain Comprehensive and Collision insurance adequate to cover the value of the Project Equipment; the CONTRACTOR shall supply a copy of the Certificate of Insurance specifying such coverage to WSDOT before operating or moving any Project Equipment; or 2. The CONTRACTOR shall provide a written certificate of self- insurance to WSDOT before operating or moving any Project Equipment. The CONTRACTOR will cover from its own resources the costs of repairing or replacing any Project Equipment, if it is stolen, damaged, or destroyed in any manner. B. If the damage to the Project Equipment does not result in a total loss, payments for damage shall be paid directly to the CONTRACTOR. The CONTRACTOR shall, within thirty (30) days, either: 1. Devote all of the insurance proceeds received to repair the Project Equipment and place it back in service, and the CONTRACTOR shall, at its own expense, pay any portion of the cost of repair which is not covered by insurance; or 2. In the event the CONTRACTOR certified to self- insurance, devote all funds necessary to repair the Project Equipment and place it back into service. C. If the Project Equipment is a total loss, either by theft or damage, the insurance proceeds or equivalent shall be paid directly to WSDOT. The CONTRACTOR shall within sixty (60) days of loss, theft, or damage, notify WSDOT that it either: 1. Intends to replace the lost Project Equipment; or 2. Does not intend to replace the lost Project Equipment. D. If WSDOT determines that the total loss occurred under circumstances in which the CONTRACTOR fulfilled its obligations under this AGREEMENT, WSDOT would either pay or rebate to the CONTRACTOR its proportionate share of such proceeds received, or take such other action with respect to such proceeds, as FTA shall allow. Section 30 Coordination of Special Needs Transportation It is the policy of the WSDOT to actively support coordination of special needs transportation in the State. As a condition of assistance, the CONTRACTOR is required to participate in local coordinated planning as led by the CONTRACTOR's relevant Metropolitan Planning Organization (MPO) and/or Regional Transportation Planning Organization (RTPO). Section 31 State and Local Law Except when a federal statute or regulation pre-empts state and local law, no provision of this AGREEMENT shall require the CONTRACTOR to observe or enforce compliance with any provision, perform any other act, or do any other thing in contravention of state or local law. Thus if any provision or compliance with any provision of this AGREEMENT violate state, or local law, or would require the CONTRACTOR to violate state or local law, the CONTRACTOR agrees to notify WSDOT immediately in writing. Should this occur; WSDOT and the CONTRACTOR agree to make appropriate arrangements to proceed with or, if necessary, expeditiously terminate the Project. Section 32 Limitation of Liability A. The CONTRACTOR shall indemnify and hold harmless WSDOT, its agents, employees, and officers from and process and defend at its own expense any and all claims, demands, suits at law or equity, actions, penalties, losses, damages, or costs (hereinafter referred to collectively as "claims"), of whatsoever kind or nature brought against WSDOT arising out of, in connection with or incident to the execution of this AGREEMENT and/or the CONTRACTOR's performance or failure to perform any aspect of this AGREEMENT. This indemnity provision applies to all claims against WSDOT, its agents, employees and officers arising out of, in connection with or incident to the negligent acts or omissions of the CONTRACTOR, its agents, employees and officers. Provided, however, that nothing herein shall require the CONTRACTOR to indemnify and hold harmless or defend the WSDOT, its agents, employees or officers to the extent that claims are caused by the negligent acts or omissions of Page 12 of 17 GCA5351 • the WSDOT, its agents, employees or officers. The indemnification and hold harmless provision shall survive termination of this AGREEMENT. B. The CONTRACTOR shall be deemed an independent CONTRACTOR for all purposes. and the employees of the CONTRACTOR, or its subcontractors and the employees thereof, shall not in any manner be deemed to be the employees of WSDOT. C. The CONTRACTOR specifically assumes potential liability for actions brought by CONTRACTOR's employees and/or subcontractors and solely for the purposes of this indemnification and defense, the CONTRACTOR specifically waives any immunity under the State industrial Insurance Law, Title 51 revised Code of Washington. D. In the event either the CONTRACTOR or WSDOT incurs attorney's fees, costs or other legal expenses to enforce the provisions of this section of the AGREEMENT against the other PARTY, all such fees, costs and expenses shall be recoverable by the prevailing PARTY. Section 33 Changed Conditions Affecting Performance The CONTRACTOR hereby agrees to immediately notify WSDOT of any change in conditions or law, or of any other event, which may affect its ability to perform the Project in accordance with the provisions of this AGREEMENT. Section 34 Agreement Modifications Either PARTY may request changes in this AGREEMENT which may only be amended by mutual agreement of the PERTIES. Such amendments or modifications to the terns of this AGREEMENT shall not be binding or valid unless made in writing and signed by persons authorized to bind each ()Idle PARTIES. Section 35 Termination A. Termination for Convenience. WSDOT and or the CONTRACTOR may suspend or terminate this AGREEMENT, in whole or in part, by written notice to the other PARTY in accordance with 49 CFR Part 18 § 18.44 or 49 CFR 19 `; 19.61, whichever is applicable to a project receiving federal fiords. WSDOT and the CONTRACTOR shall agree upon the AGREEMENT termination provisions including but not limited to the settlement terms, conditions, and in the case of partial termination the portion to be terminated. Written notification must set forth the reasons for such termination. the effective date, and in case of a partial termination, the portion to be terminated. However, if in the case of partial termination, WSDOT determines that the remaining portion of the award will not accomplish the purposes for which the award was made WSDOT may terminate the award in its entirety WSDOT may suspend all or any part of the State financial assistance provided herein, at any time by written notice to the CONTRACTOR and the PARTIES may terminate this AGREEMENT for convenience for reasons including, but not limited to, the following: 1. The requisite Federal and/or State funding becomes unavailable through failure of appropriation or otherwise; 2. WSDOT determines, in its sole discretion, that the continuation of the Project would not produce beneficial results commensurate with the further expenditure of funds; 3. The CONTRACTOR is prevented from proceeding with the Project as a direct result of an Executive Order of the President with respect to the prosecution of war or in the interest of national defense; or an Executive Order of the President or Governor of the State with respect to the preservation of energy resources; 4. The CONTRACTOR is prevented from proceeding with the Project by reason of a temporary preliminary, special, or permanent restraining order or injunction of a court of competent jurisdiction where the issuance of such order or injunction is primarily caused by the acts or omissions of persons or agencies other than the CONTRACTOR; 5. The Federal Government and/or State Government determines that the purposes of the statute authorizing the Project would not be adequately served by the continuation of Federal and/or State financial assistance for the Project; or 6. The Federal Government terminates this AGREEMENT due to a determination that the CONTRACTOR has: (a) willfully misused Federal assistance funds by failing to make adequate progress on the Project, (b) failed to make reasonable and appropriate use of the Project real property, facilities, or equipment, or (c) failed to comply with the terms of this AGREEMENT. In the event of a termination under this subsection, and the Federal Government exercises its right to require WSDOT to refund any or all of the Federal Funds provided for the Project, the CONTRACTOR shall return all monies reimbursed to it by WSDOT, in the amount required by the Federal Government, within sixty (60) days of its re'eeipt of a certified letter from WSDOT. 7. In the case of termination for convenience under subsections 1-5 above, WSDOT shall reimburse the CONTRACTOR for all costs payable under this AGREEMENT which the CONTRACTOR properly incurred prior to termination. The CONTRACTOR shall promptly submit its claim for reimbursement to WSDOT. If the CONTRACTOR has any property in its possession belonging to WSDOT, the CONTRACTOR will account for the same, and dispose of it in the manner WSDOT directs. B. Termination for Default. WSDOT may suspend or terminate this AGREEMENT for default, in whole or in part, and all or any part of the federal financial assistance provided herein, at any time by written notice to the CONTRACTOR, if the CONTRACTOR materially breaches or fails to perform any of the requirements of this AGREEMENT, including: Page 13 of 17 GCA5351 I. Takes any action pertaining to this AGREEMENT without the approval of WSDOT, which under the procedures of this AGREEMENT would have required the approval of WSDOT; 2. Jeopardizes its ability to perform pursuant to this AGREEMENT, United States of America laws, Washington state laws, or local governmental laws under which the CONTRACTOR operates; 3. Abuses or misuses the Project Equipment, including, but not limited to: a. Failure to maintain a vehicle according to the manufacturer's standards; b. Failure to repair damages or replace defective or broken parts in a timely manner; or c. Failure to take any action which could affect the ability of the Project Equipment to perform its designated function or takes any action which could shorten its useful hfe for Project use or otherwise. d. Failure to make reasonable and appropriate use of the Project Equipment, real property, or facilities. 4. Fails to make reasonable progress on the Project or other violation of this AGREEMENT that endangers substantial performance of the Project; or 5. Fails to perform in the manner called for in this AGREEMENT; or fails, to comply with, or is in violation of any provision of this AGREEMENT. WSDOT shall serve a notice of termination on the CONTRACTOR setting forth the manner in which the CONTRACTOR is in default hereunder. If it is later determined by WSDOT that the CONTRACTOR had an'excusable reason for not performing, such as events which are not the fault of or.are beyond the control of the CONTRACTOR, such as a strike, fire or flood, WSDOT may: (a) allow the CONTRACTOR to continue work after setting up a new delivery of performance schedule, or (b) treat the termination as. a termination for convenience: C. WSDOT, in its sole discretion may, in the case of a termination for breach or.default, allow the CONTRACTOR ten (10) business days, or such longer period as determined by WSDOT, in which to cure the defect. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions. If the CONTRACTOR fails to remedy to WSDOT's satisfaction the breach or default within the timeframe and under the conditions set forth in the notice of termination, WSDOT shall have the right to terminate this AGREEMENT without any further obligation to CONTRACTOR. Any such termination for default shall not in any way operate to preclude WSDOT from also pursuing all available remedies against CONTRACTOR and its sureties for said breach or default. D. In the event that WSDOT elects to waive its remedies for any breach by CONTRACTOR of any covenant, term or condition of this AGREEMENT, such waiver by WSDOT shall not limit WSDOT's remedies for any succeeding breach of that or of any other term, covenant; or condition of this AGREEMENT. Section 36 Lack of Waiver In no event shall any WSDOT payment of grant funds to the CONTRACTOR constitute or be construed as a waiver by WSDOT of any CONTRACTOR breach, or default. Such payment shall in no way impair or prejudice any right or remedy available to WSDOT with respect to any breach or default. Section 37 WSDOT Advice The CONTRACTOR bears complete responsibility for the administration and success of the Project as it is defined by this AGREEMENT and any amendments thereto. If the CONTRACTOR solicits advice from WSDOT on problems that may arise, the offering of WSDOT advice shall not shift the responsibility of the CONTRACTOR for the correct administration and success of the Project, and WSDOT shall not be held liable for offering advice to the CONTRACTOR. Section 38 Subrogation A. Prior to Subrogation. WSDOT may require the CONTRACTOR to take such action as may be necessary or appropriate to preserve the CONTRACTOR's right to recover damages from any person or organization alleged to be legally responsible for injury to the Project Equipment or other property in which WSDOT has a financial interest. B. Subrogation. WSDOT may require the CONTRACTOR to assign to it all right of recovery against any person or organization for loss, to the extent of WSDOT's loss. Upon assignment, the CONTRACTOR shall execute, deliver, and do whatever else necessary to secure WSDOT's rights. The,CONTRACTOR shall do nothing after any loss td prejudice the rights of WSDOT. C. Duties of the CONTRACTOR. If WSDOT has exercised its right of subrogation, the CONTRACTOR shall. cooperate with WSDOT and, upon WSDOT's request, assist in the prosecution of suits and enforce any right against any person or organization who may be liable to WSDOT due to damage of Project Equipment. The CONTRACTOR shall attend hearings and trials, assist in securing and giving evidence, and obtain the attendance of witnesses. Page 14 of 17 GCA5351 Section 39 Forbearance by WSDOT Not a Waiver Any forbearance by WSDOT in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy. Section 40 Disputes A. Disputes. Disputes, arising in the performance of this AGREEMENT, which are not resolved by agreement of the PARTIES, shall be decided in writing by the Public Transportation and Commute Options (PT&CO) Contracts and Grants Administrator. This decision shall be final and conclusive unless within ten (10) days from the date of receipt of its copy, the CONTRACTOR mails or otherwise furnishes a written appeal to the Manager of Public Transportation and Commute Options, the authorized representative of WSDOT. In connection with any such appeal, the CONTRACTOR shall be afforded an opportunity to be heard and to offer evidence in support of its position. The CONTRACTOR'S appeal shall be decided in writing by the Manager of Public Transportation and Commute Options. The decision of the Manager of Public Transportation and Commute Options shall be binding upon the CONTRACTOR and the CONTRACTOR shall abide by the decision. B. Performance During Dispute. Unless otherwise directed by WSDOT, CONTRACTOR shall continue performance under this AGREEMENT while matters in dispute are being resolved. C. Claims for Damages. Should either PARTY to this AGREEMENT suffer injury or damage to person, property, or right because of any act or omission of the other PARTY or any of that PARTY's employees, agents or others for whose acts it is legally liable, a claim for damages therefore shall be made in writing to such other PARTY within thirty (30) days after the first observance of such injury or damage. D. Rights and Remedies. All remedies provided in this AGREEMENT are distinct and cumulative to any other right or remedy under this document or afforded by law or equity, and may be exercised independently, concurrently, or successively and shall not be construed to be a limitation of any duties, obligations, rights and remedies of the PARTIES hereto. No action or failure to act by the WSDOT or CONTRACTOR shall constitute a waiver of any right or duty afforded any of them under this AGREEMENT, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. Section 41 Venue and Process In the event that either PARTY deems it necessary to institute legal action or proceedings to enforce any right or obligation under this AGREEMENT, the PARTIES hereto agree that any such action shall be initiated in the Superior Court of the State of Washington situated in Thurston County. The PARTIES hereby accept the issuing and service of process by registered mail at the mailing address shown in the heading of this AGREEMENT under "CONTRACTOR" and "Washington State Department of Transportation." The PARTIES agree that the laws of the State of Washington shall apply. Section 42 Section Headings All section headings are inserted for convenience only and shall not affect any construction or interpretation of this AGREEMENT. Section 43 Counterparts This AGREEMENT may be simultaneously executed in several counterparts, each of which shall be deemed to be an original having identical legal effect. The CONTRACTOR does hereby ratify and adopt all statements, representations, warranties, covenants, and agreements and their supporting materials contained and/or mentioned herein, and does hereby accept WSDOT's grant and agrees to all of the terms and conditions thereof. Section 44 Severability Should any section, term or provision of this AGREEMENT be determined to be invalid, the remainder of this AGREEMENT shall not be affected and the same shall continue in full force and effect. Section 45 Complete Agreement This document contains all covenants, stipulations, and provisions agreed upon by WSDOT. No agent or representative of WSDOT has authority to make, and WSDOT shall not be bound by or be liable for, any statement, representation, promise or agreement not set forth herein or made by written amendment hereto. Page 15 of 17 GCA5351 Section 46 Excut! tion This AGREEMENT is executed by the Director; Public Transportation Division, State of Washington; Department of Transportation or the Director's designee, not as an individual incurring personal obligation and liability, but solely by, for and on behalf of the State of Washington, Department of Transportation. in the capacity as Director, Public Transportation Division, or as a designee IN WITNESS WHEREOF', the PARTIES hereto have executed this AGREEMENT the day and year last written below. WASHINGTON STATE DEPARTMENT OF TRANSPORTATION By: Date athrvn W. Tavlo Director, Public Transportation Approved as to form only. 13y' Susan Cruise Assistant Attorney General Date: October 17. 2007 CONTRACTOR By Authorized Representative Print Name R. A. Zais, Jr. Print Title City Manager Who by this signature certifies their authority to execute this ACGRLLMENT on behalf of the CONTRACTOR. Date• / 2/6/0 7 CITY CONTRAC f NO: ,%*FOi2 7 --/e,e2 RESOLUTION NO: Page 16 of 17 GCA5351 Exhibit I SCOPE OF PROJECT AND BUDGET Total Project Costs Federal Funds $ 0 State Funds $ 79,577 Contractor Funds $ 0 Total Cost $ 79,577 Funding by Project: PROJECT A Scope of Work: Provide capital funding assistance to purchase one (1) Wheelchair accessible van, three (3) bus passenger shelters, and a wireless electronic GPS system to enhance paratransit service in the City of Yakima. Funding Percentage 2007/2009 _ Current Funds Total Project Budget Paratransit / Special Needs Transit Formula Funds 100% $ 79,577 $ 79,577 Contractor Funds 0% $ 0 $ 0 Total Project Cost 100% $ 79,577 $ 79,577 Budget: Funding and percentages identified reflects' total Project funding for 2007/2009. Capital competitive funds are solely for the acquisition purpose provided above. Any remaining funds resulting from the procurement shall be returned to WSDOT for re -distribution. Page 17 of 17 GCA5351 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No * IA_ For Meeting of December 4, 2007 ITEM TITLE. A Resolution Authorizing a Federal/State Capital Consolidated Grant Agreement with WSDOT for Paratransit/Special Needs Projects SUBMITTED BY Chris Waarvick, Director of Public Works Ken Mehin, Transit Manager -576-6415 CONTACT PERSON/TELEPHONE. Gary Pira, Transit Planner 576-6422 SUMMARY EXPLANATION: Yakima Transit is eligible for a "no match" State Paratransit/ Special Needs Transportation Grant for $79,577 These Capital Grant Funds are designated to complete three specific identified projects as outlined in, Exhibit 'A' Statewide, a Targe number of transit entities are currently participating in the Special Needs grant program; this funding is for the biennium July 1, 2007 to June 30, 2009 The Council Transit Committee endorses this request and recommends that the City Council )adopt the Resolution Resolution XOrdinance Other X State Operating Capital Consolidated Grant Agreement Contract Mail to (name and address) Funding Source. WSDOT Grant Agreement Number GCA 5351—$79,577 APPROVED FOR SUBMITTAL. 4 City Manager STAFF RECOMMENDATION. Adopt the Resolution authorizing and directing the City Manager of the City of Yakima to execute the State Operating Capital Consolidated Grant Agreement with WSDOT BOARD/COMMISSION RECOMMENDATION- The Council Transit Committee has reviewed the transportation services elements, has been given periodic updates at their monthly meetings and supports this request. COUNCIL ACTION: