HomeMy WebLinkAboutResolution - 2006-R0375 - Public Transportation Master Grant Agreement - 08/10/2006Resolution No. 2006-RO375
August 10, 2006
Item No. 5.11
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Citibus General Manager of the City of Lubbock BE and is hereby
authorized and directed to execute for and on behalf of the City of Lubbock, a Public
Transportation Master Grant Agreement, 517XXF7054. Said Grant Agreement is
attached hereto and incorporated in this resolution as if fully set forth herein and shall be
included in the minutes of the Council.
Passed by the City Council this 10th day of August 2006.
ATTEST:
Retie ca Garza, City Secretary
AS TO CONTENT:
10
APPROVED AS
Attornev
gs:/ccdocs/Res-Transportation Master Grant Agrmnt 5 i 7XXF7054
7/28/06
AAF Texas
Department of Transportation
135 SLATON ROAD • LUBBOCK, TEXAS 79408-0711 • (806) 745-4411
September 5, 2006
Mr. John L. Wilson
General Manger
Citibus
P.O. Box 2000
Lubbock, Texas 79457
Re: City of Lubbock / Citibus
Master Grant Agreement No. 517XXF7054
Dear Mr. Wilson:
Please find enclosed a copy of the City of Lubbock/Citibus' Master Grant Agreement
No. 517XXF7054 for your files.
The Lubbock District is no longer in a position to send Citibus two (2) originals for your
files. To request additional originals please contact the Public Transportation Division
in Austin.
Sincerely,
Lynn O. Castle
Public Transportation Coordinator
Enclosure
REVISED MGA
SUBRECIPIENT: City of Lubbock/Citibus
MGA GRANT NO.: 517XXF7054
STATE/LOCAL PUBLIC TRANSPORTATION
Service Area: City of Lubbock
Resolution No. 2006-RO375
August 10, 2006
Item No. 5.11
FOR PTN USE ONLY
State I Feder
5307 ,
r531THE STATE OF TEXASTHE COUNTY OF TRAVIS §
PUBLIC TRANSPORTATION
MASTER GRANT AGREEMENT
THIS PUBLIC TRANSPORTATION MASTER GRANT AGREEMENT (MGA) is made by and
between the State of Texas, acting through the Texas Department of Transportation, hereinafter
called the "State," and the City of Lubbock/Citibus, hereinafter called the "Subrecipient."
WITNESSETH
WHEREAS, federal and state laws require the State and Subrecipients meet certain contract
standards relating to the management and administration of state and federal funds; and
WHEREAS, the governing terms of this MGA will provide for efficient and effective contract
administration; and,
WHEREAS, the Subrecipient must expc!,"-..o #` ' t Application, Part I each fiscal year
grant period for consideration for neh' its, and is hereby made a part of this
MGA; ands.,%.
WHEREAS, if applicable, the Subrec u
fiscal year grant period for considera"
MGA; and
II Year Grant Application, Part II each
and is hereby made a part of this
WHEREAS, the State and the Subre(i'yree that not every provision of this
document will apply to every Subrecipi11 ent or every project, depending upon the nature of the Project
and the section of the statute authorizing the financial assistance; and
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
of the parties hereto, to be by them respectively kept and performed as hereinafter set forth, it is
agreed as follows:
AGREEMENT
ARTICLE 1. MGA AND PROJECT GRANT AGREEMENTS (PGA) TIME PERIOD
This MGA and the Project Grant Agreements (PGA) executed under this MGA become effective
when signed by the last parry whose signing makes the respective agreement fully executed. This
MGA shall remain in effect until August 31, 2011 unless terminated or otherwise modified in an
Amendment added to this MGA.
ARTICLE 2. COMPENSATION
A. The State's reimbursement to the Subrecipient is contingent upon the availability of appropriated
funds. The State shall have no liability for any claims submitted by the Subrecipient or its
subcontractors, vendors, manufacturers or suppliers if sufficient federal or state funds are not
available to pay the Subrecipient's claims.
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B. To be eligible for reimbursement under the MGA, a cost must be incurred and authorized within
the MGA period specified in Article 1, MGA and PGA Grant Time Period.
C. The Subrecipient may submit requests for reimbursement to the State no more frequently than
monthly and no later than forty-five (45) days after the date of the invoices submitted for
reimbursement. The Subrecipient will use invoice statements acceptable to the State. Additional
documentation to support any cost incurred during the billing period may be required at the
discretion of the State. As a minimum, each billing must be accompanied by a summary by
budget line item which indicates the total amount authorized for each line item, previous
expenditures, current period expenditures and the balance remaining in the line item.
D. The original and one copy of the invoice is to be submitted to the appropriate TxDOT District
Office.
E. The State will make payment within thirty (30) days of the receipt of properly prepared requests for
reimbursement.
F. The Subrecipient will submit a final billing within forty-five (45) days of the completion or
termination of the MGA or PGA in accordance with Article 1, Grant Period.
G. Because this contract provides for reimbursement of costs that have already been incurred, it is
the expectation of the State that all subcontractors and vendors will have been paid before a
request for reimbursement is submitted. If for any reason a subcontractor or vendor has not been
paid the Subrecipient shall pay that subcontractor and/or vendor for work performed within ten
(10) days after the Subrecipient receives payment for the work performed by the subcontractor.
Also, any retained monies on a subcontractor's work shall be paid to the subcontractor within ten
(10) days after the Subrecipient receives any retainage payment. The State shall not be
responsible for the debts of the Subrecipient.
The requirement of paying contractors and vendors within ten (10) days is also applicable to all sub -tier
subcontractors and the above provisions shall be made a part of all subcontracts.
Failure to comply with any of the above requirements may cause withholding of payments to the
Subrecipient and will be grounds for termination of this grant agreement by the State.
H. The above requirements are also applicable to all sub -tier subcontractors and the above
provisions shall be made a part of all subcontracts.
I. Failure to comply with any of the above requirements may cause withholding of payments to the
Subrecipient and will be grounds for termination of this MGA and PGAs by the State.
ARTICLE 3. PGA AND AMENDMENTS
A. All PGAs and/or MGA/PGA Amendments must be executed by both parties within the grant time
period specified in Article 1, MGA and PGA Grant Time Period.
B. The Subrecipient is authorized to re -budget without a formal amendment when the proposed
revision involves an increase in one category and a corresponding decrease in another, provided
however, that any such revision meets all of the following criteria:
1. Does not result in the need for additional funds; and,
2. Does not exceed ten percent of the current total approved budget and the federal or state
funding exceeds $100,000; and,
3. Does not exceed the current total approved budget; and,
4. Does not involve a transfer of funds from an authorized capital equipment purchase to another
category; and,
5. Does not involve a transfer of funds from training to another expense category; and,
6. Does not involve a transfer of funds from construction to a non -construction category; and,
7. Does not involve a transfer of funds from a direct to indirect cost category.
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C. If a proposed revision meets all of the criteria listed above, the Subrecipient must notify the State
in writing before the revision is made, describing the revision, explaining the need, and certifying
that it complies with the above criteria.
ARTICLE 4. SUBCONTRACTS
The Subrecipient shall not enter into any subcontract with individuals or organizations for the
purchase of equipment and/or to provide professional services without prior authorization and
consent to the subcontract by the State. All Subcontracts shall contain all required provisions
required by state or federal law. Subrecipients shall furnish the department notice of the intent to
award a purchase order or contract to any individuals or organizations not a part of the Subrecipient's
organization when the amount of the purchase meets or exceeds the threshold level in the
Government Code or Local Government Code (or $15,000 for those entities not covered by the
Government Code or Local Government Code) requiring formal competitive procurement. Purchases
shall not be split out to stay below the threshold amount. No subcontract will relieve the Subrecipient
of its responsibility under this MGA and PGA.
ARTICLE 5. AUDIT REQUIREMENTS
Subrecipient audit procedures shall meet or exceed'the audit requirements outlined in Title 48, Code
Federal Regulations (C.F.R.), Federal Acquisition Regulations (FAR).
ARTICLE 6. STANDARDS FOR FINANCIAL ADMINISTRATION
The Subrecipient's standards for financial administration must conform with the requirements of 49,
Code of Federal Regulations §18.20.
ARTICLE 7. PROCUREMENT STANDARDS
Subrecipient procurement standards shall meet or exceed the requirements of 48 C.F.R., FAR, 49
C.F.R. §18.36, and 49 CFR Part 19 including standards for competitive procurements; methods of
procurement; contracting with small and minority firms, women's business enterprise and labor
surplus area firms; contract cost and price; awarding agency review; insurance and bonding.
The Subrecipient's procurement system must include but not be limited to the following procurement
standards.
A. Procurement procedures which reflect applicable state and local laws and regulations, provided
that the procurements conform to applicable federal law and the standards identified in this
section.
B. A contract administration system which ensures that contractors perform in accordance with the
terms, conditions, and specifications of their contracts or purchase orders.
C. A written code of standards of conduct governing the performance of employees engaged in the
award and administration of contracts. No employee, officer, or agency of the Subrecipient shall
participate in selection or in the award or administration of a contract supported by state or federal
funds if a conflict of interest, real or apparent, would be involved.
D. A process for review of proposed procurements to avoid purchase of unnecessary or duplicative
items.
E. Use of state and local intergovernmental agreements for procurement or use of common goods
and services to foster greater economy and efficiency.
F. Use of value engineering clauses in contracts for construction projects.
G. Awards made only to responsible contractors possessing the ability to perform successfully under
the terms and conditions of a proposed procurement, giving consideration to such matters as
contractor integrity, compliance with public policy, record of past performance, and financial and
technical resources.
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H. Records sufficient to detail the significant history of procurement, including rationale for the
method of procurement, selection of contract type, contractor selection or rejection, and the basis
for the contract price.
I. Limited use of time -and -materials contracts.
J. Use of good administrative practices and sound business judgment to settle contractual and
administrative issues arising out of procurements.
K. Protest procedures to handle and resolve disputes relating to procurements and prompt disclosure
to the State of information regarding the protest.
L. Procurement transactions conducted in a manner that provides full and open competition.
M. If equipment or real property is transferred to a Subrecipient, that equipment or real property shall
be owned and operated in accordance with the same rules and regulations governing the
ownership and operation of equipment or real property acquired with financial assistance from the
State.
N. The equipment and program provisions survive the contract duration.
O. These standards will apply to the project(s) described in the Fiscal Year Grant Application, Part I
and Part II, and PGAs. .
For those projects requiring a formal competitive process, the Subrecipient shall furnish a copy of the
public notification, prior to issuance, along with any other procurement documents requested by the
department, for department review and approval. Upon procurement of items under this MGA or
PGA, the Subrecipient shall submit to the State a list of all bidders and subcontractors that quoted on
the procured items. The Subrecipient shall submit the list with their requests for reimbursements and
must include names, addresses, telephone numbers, and type(s) of work quoted.
ARTICLE B. PROPERTY MANAGEMENT
The State must concur in the award of all purchase orders for non -expendable personal property as
defined in 49 C.F.R. §§ 18.32 and 18.33. Acquisition of real property must comply with 49 C.F.R.
§18.31.
ARTICLE 9. EQUIPMENT MANAGEMENT
A. Management standards include, but are not limited to:
1. Recording the State's security interest as a lien on the certificate of title of the vehicle at the
time of purchase in accordance with Transportation Code, Chapter 501 and in accordance with
Title 43, Texas Administrative Code §31.55.
2. Maintaining equipment records that include a description of the equipment; a serial number or
other identification number; the source of equipment; who holds title; the acquisition date and
cost of the equipment; percentage of federal and state participation in the cost of the
equipment; the location, use and condition of the equipment; maintenance history for each
vehicle; and ultimate disposition data including the date of disposal and sale price.
3. Conducting a physical inventory of the equipment at least once every two (2) years and
reconciling the inventory with equipment records described in the preceding paragraph.
4. Developing a control system to ensure adequate safeguards to prevent loss, damage, or theft
of the equipment. Any loss, damage, or theft shall be investigated.
5. Developing and following procedures to keep the equipment maintained and in good condition.
At a minimum, the Subrecipient shall follow the vehicle maintenance schedule recommended
by the manufacturer, showing the date the maintenance was performed. Maintenance records
shall be provided to the State upon request.
6. Requesting disposition instructions from the State, and if authorized to sell the equipment,
using proper sales procedures to insure the highest possible return.
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B. The Subrecipient will comply with Title 43, Texas Administrative Code §§31.53 and 31.55, to
protect the public investment in real property and equipment purchased in whole or in part with
state or federal funds.
C. In the event that project equipment is not used in the proper manner or is withdrawn from public
transportation services, the Subrecipient shall immediately notify the State. The State reserves
the right to direct the sale or transfer of property acquired under this MGA and PGA upon
determination by the State that said property has not been fully or properly used upon termination
of this agreement, or as otherwise allowed by applicable rules and regulations.
D. All vehicles purchased under this MGA or PGA shall comply with the Motor Vehicle Safety
Standards established by the US Department of Transportation and state law.
E. Irrespective of coverage by insurance, unless otherwise approved in writing by the State, in the
event of loss or damage to project property, whether by casualty or fire, the fair market value will
be the value of the property immediately before the casualty or fire.
F. The Subrecipient shall notify the State immediately of theft, wreck, vandalism or other destruction
of project -related facilities or equipment.
ARTICLE 10. COORDINATION
According to Title 43 of the Texas Administrative Code §31.49, the Subrecipient will at all times
coordinate the provision of public transportation services with other transportation operators, both
public and private, in the area. The Subrecipient will furnish the State copies of any agreement
resulting from such coordination. Agreements that authorize the payment of project funds to another
entity are subject to the approval requirements described in Article 5, Subcontracts.
ARTICLE 11. LABOR PROTECTION PROVISIONS
If applicable, the Subrecipient shall comply with the labor protection provisions as listed below.
The Subrecipient agrees that the following terms and conditions shall apply for the protection of
employees in the mass passenger transportation industry in the area of the project:
A. The project shall be carried out in such a manner and upon such terms and conditions as will not
adversely affect employees in the mass passenger transportation industry within the service area
of the project.
B. All rights, privileges, and benefits (including pension rights and benefits) of employees (including
employees already retired) shall be preserved and continued.
C. The Subrecipient shall be financially responsible for any deprivation of employment or other
worsening of employment position as a result of the project.
D. In the event an employee is terminated or laid off as a result of the project, he or she shall be
granted priority of employment or reemployment to fill any vacant position for which he or she is,
or by training or retraining can become, qualified. In the event training is required by such
employment or reemployment, the Subrecipient shall provide or provide for such training or
retraining at no cost to the employee.
E. Any employee who is laid off or otherwise deprived of employment or placed in a worse position
with respect to compensation, hours, working conditions, fringe benefits, or rights and privileges
pertaining thereto at any time during his or her employment as a result of the project, including
any program of efficiencies or economies directly or indirectly related thereto, shall be entitled to
receive any applicable rights, privileges and benefits as specified in the employee protective
arrangement certified by the Secretary of Labor under Section 405(b) of the Rail Passenger
Service Act of 1970 on April 16, 1971. An employee shall not be regarded as deprived of
employment or placed in a worse position with respect to compensation, etc., in case of his or her
resignation, death, retirement, dismissal for cause, or failure to work due to disability or discipline.
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The phrase "as a result of the project" as used herein shall include events occurring in anticipation
of, during, and subsequent to the project.
F. In the event any provision of these conditions is held to the invalid or otherwise unenforceable, the
Subrecipient, the employees and/or their representatives may invoke the jurisdiction of the
Secretary of Labor to determine substitute fair and equitable employee protective arrangements
which shall be incorporated in these conditions.
G. The Subrecipient agrees that any controversy respecting the project's effects upon employees,
the interpretation or application of these conditions and the disposition of any claim arising
hereunder may be submitted by any party to the dispute including the employees or their
representative for determination by the Secretary of Labor, whose decision shall be final.
H. The Subrecipient shall maintain and keep on file all relevant books and records in sufficient detail
as to provide the basic information necessary to the making of the decisions called for in the
preceding paragraph.
I. The Subrecipient will post, in a prominent and accessible place, a notice stating that the
Subrecipient is a recipient of federal assistance under the Federal Transit Act and has agreed to
comply with the provisions of 49 U.S.C., Section 5333(b).
The notice shall also specify the terms and conditions set forth herein for the protection of employees.
ARTICLE 12. MONITORING
A. The State will monitor the progress of the project authorized in this agreement using appropriate
and necessary inspections, including but not limited to periodic reports, physical inspection of
project facilities, telephone conversations, letters, and conferences.
B. The State shall monitor and conduct fiscal and/or program audits of the Subrecipient and its
contractors to verify the extent of services provided under the terms of the MGA and PGA.
Representatives of the state or federal government shall have access to project facilities and
records at all reasonable times.
C. The state auditor may conduct an audit or investigation of any entity receiving funds from the state
directly under the contract or indirectly through a subcontract under the contract. Acceptance of
funds directly under the contract or indirectly through a subcontract under this contract acts as
acceptance of the authority of the state auditor, under the direction of the legislative audit
committee, to conduct an audit or investigation in connection with those funds. An entity that is the
subject of an audit or investigation must provide the state auditor with access to any information
the state auditor considers relevant to the investigation or audit.
ARTICLE 13. REPORTS
A. The Subrecipient shall submit written or electronic reports at intervals and in a format prescribed
by the State.
1. Quarterly Operating Report - No later than thirty (30) calendar days after the end of the quarter,
for which the report is made, the Subrecipient shall submit an activity report to the State. At a
minimum, the quarterly operating report will include the number of vehicles in operation; total
unlinked passenger trips; total miles traveled; total expenses, including administrative and
operating expenses; revenue, including fares and donations, operating expense per vehicle
revenue mile; operating expense per unlinked passenger trip; and number of unlinked
passenger trips per revenue mile traveled. The State may require more frequent operating
reports for reasons of its own, or if the Subrecipient does not provide the reports in a timely
manner or if the reports indicate unfavorable trends.
2. Status of Procurements - If the grant includes the purchase of vehicles or other capital
equipment, the Subrecipient shall submit a quarterly report consisting of a brief narrative
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including but not limited to procurement milestones, including date of purchase order, vendor
name and location, and estimated delivery date.
3. Status of Construction - If the grant includes construction, the Subrecipient shall submit
quarterly narrative reports which include but are not limited to the progress of construction.
B. Regardless of the type of assistance included in the grant, the Subrecipient shall promptly advise
the State in writing if at any time the progress of the project will be negatively or positively
impacted, including:
1. Problems, delays or adverse conditions that will materially affect the Subrecipient's ability to
attain program objectives, prevent the meeting of time schedules and goals, or preclude the
attainment of project work units by established time periods. This disclosure shall be
accompanied by a statement of the action taken, or contemplated, by the Subrecipient and any
State assistance needed to resolve the situation.
2. Favorable developments or events that will enable the Subrecipient to meet time schedules and
goals sooner than anticipated or produce more work units than originally projected.
C. Every two (2) years, or more frequently when instructed by the State, the Subrecipient shall
conduct a physical inventory of grant -supported property as set forth in Article 9, Equipment
Management, and furnish the State a copy of the inventory.
D. The Subrecipient shall maintain written maintenance records for each grant -supported vehicle,
and shall make such records available to the State upon request.
ARTICLE 14. DISPUTES AND REMEDIES
A. The Subrecipient shall be responsible for the settlement of all contractual and administrative
issues arising out of procurements entered in support of the grant.
B. Any dispute concerning the work hereunder, additional costs, or any other non -procurement issue
shall be submitted for resolution by informal mediation, in accordance with the requirements of the
Governmental Dispute Resolution Act, Chapter 2009, Government Code, unless the subject
matter applies under Title 43, Texas Administrative Code §9.2.
C. This agreement shall not be considered as specifying the exclusive remedy for any default, but all
remedies existing at law and in equity may be availed of by either party and shall be cumulative.
ARTICLE 15. TERMINATION
A. Either the State or the Subrecipient may terminate the MGA and/or any PGA by giving thirty (30)
days' notice in writing one to the other for reasons of its own and not subject to the approval of the
other party. In the event of termination for convenience, neither the State nor the Subrecipient
shall be subject to additional liability except as otherwise provided in this agreement.
B. If both parties to this MGA agree that the continuation of a PGA would not produce beneficial
results commensurate with the further expenditure of funds, the parties shall agree upon the
termination conditions, including the effective date. In the event that both parties agree that
resumption of the PGA is warranted, a new PGA must be developed and executed by all parties.
C. The State may terminate this MGA and/or PGA at any time before the date of completion
whenever it is determined that the Subrecipient has failed to comply with the conditions of the
MGA or PGA. Additionally, if the State notifies the Subrecipient of a major deficiency and the
Subrecipient does not respond in the manner required by the State, the State will immediately
terminate the MGA and/or PGAs, and direct the disposition of equipment purchased with grant
funds, or both.
D. Upon termination of this MGA and/or PGA, whether for cause or at the convenience of the parties
hereto, title to all property and equipment remains with the Subrecipient subject to the obligations
and conditions set forth in this MGA or PGA and 49 C.F.R. § 18.31 and § 18.32, unless the state
or federal funding agency issue disposition instructions to the contrary.
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E. In the event of termination, the State may compensate the Subrecipient for those eligible
expenses incurred during the grant periods that are directly attributable to the completed portion of
the grant covered by the PGA, provided that the grant has been completed in accordance with the
terms of the MGA and PGA. The Subrecipient shall not incur new obligations for the terminated
portion after the effective date of termination.
F. Except with respect to defaults of subcontractors, the Subrecipient shall not be in default by
reason of any failure in performance of this MGA or PGA in accordance with its terms (including
any failure by the Subrecipient to progress in the performance of the work) if such failure arises
out of causes beyond the control and without the default or negligence of the Subrecipient. Such
causes may include but are not limited to acts of God or of the public enemy, acts of the
Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine
restrictions, strikes, freight embargoes, and unusually severe weather. In every case, however,
the failure to perform must be beyond the control and without the fault or negligence of the
Subrecipient.
ARTICLE 16. DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM REQUIREMENTS
REQUIREMENTS FOR PUBLIC TRANSPORTATION CONTRACTS
It is the policy of the United States Department of Transportation (USDOT) and the Texas
Department of Transportation (TxDOT) that Disadvantaged Business Enterprises (DBE) as defined it
49 C.F.R. Part 26 shall have the opportunity to participate in the performance of contracts financed in
whole or in part with federal funds. Consequently, the DBE and the TxDOT's DBE Program
requirements of 49 C.F.R. Part 26 apply to this contract as follows:
A. The Subrecipient and any subcontractor will strive to meet the annual DBE goal by offering DBEs,
as defined in 49 C.F.R. Part 26, Subpart A, the opportunity to compete fairly for contracts and
subcontracts. DBE participation shall be reported monthly.
B. The Subrecipient and any subcontractor shall not discriminate on the basis of race, color, national
origin or sex in the award and performance of contracts.
C. These requirements shall be physically included in any subcontract.
D. Failure to carry out the requirements set forth above shall constitute a material breach of this
contract and may, after the notification of the State, result in termination of the contract by the
TxDOT or other such remedy as the TxDOT deems appropriate.
ARTICLE 17. CONTROL OF SUBSTANCE ABUSE
A. The Subrecipient will certify compliance with 49 C.F.R. Parts 40, 655 on or before September 1St
of each year, using the certification form fumished by the State.
B. Section 5307 Subrecipient's will submit a copy of the Drug and Alcohol Management information
System (DAMIS) reports by March 15t' of each year.
C. Section 5311 Subrecipient's will submit required Drug and Alcohol Management Information
System (DAMIS) reports on or before February 15t' of each year.
ARTICLE 18. PROHIBITED ACTIVITIES
A. Neither the Subrecipient nor any subcontractor shall use federal or state assistance funds for
publicity or propaganda purposes designed to support or defeat legislation pending before
Congress or the Texas Legislature.
B. No member of or delegate to the Congress of the United States shall share in this MGA or PGA or
benefit from it, except in the same manner as the general public.
C. No member, officer or employee of the Subrecipient during his tenure or one (1) year thereafter
shall have any interest, direct or indirect, in this MGA or PGA or the proceeds thereof.
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D. Texas Transportation Commission policy mandates that employees of the Texas Department of
Transportation (TxDOT) shall not accept any benefits, gifts or favors from any person doing
business or who reasonably speaking may do business with the State under this MGA or PGA.
The only exceptions allowed are ordinary business lunches and items that have received the
advanced written approval of TxDOT's Executive Director.
E. Any persons doing business with or who may reasonably speaking do business with the State
under this MGA or PGA may not make any offer of benefits, gifts or favors to TxDOT employees,
except as mentioned above. Failure on the part of the Subrecipient to adhere to this policy may
result in the termination of this MGA and PGA.
F. The Subrecipient will comply with Texas Government Code, Chapter 573, by insuring that no
officer, employee or member of the Subrecipient's governing board or of the Subrecipient's
contractors or subcontractors shall vote or confirm the employment of any person related within
the second degree by affinity or third degree by consanguinity to any member of the governing
body or to any other officer or employee authorized to employ or supervise such person.
G. This prohibition shall not prohibit the employment of a person who shall have been continuously
employed for a period of two (2) years prior to the election or appointment of the officer,
employee, governing body member related to such person in the prohibited degree.
ARTICLE 19. OPEN MEETINGS
If applicable, the Subrecipient will comply with Texas Government Code, Chapter 551, which requires
all regular, special or called meetings of governmental bodies to be open to the public, except as
otherwise provided by law or specifically permitted in the Texas Constitution.
ARTICLE 20. INDEMNIFICATION
A. To the extent permitted by law, the Subrecipient shall indemnify and save harmless the State from
all claims and liability due to activities of its agents, employees or volunteers performed under this
agreement and which result from an error, omission or negligent act of the Subrecipient or of any
person employed by the Subrecipient.
B. To the extent permitted by law, the Subrecipient shall also save harmless the State from any and
all expenses, including attorney fees, which might be incurred by the State in litigation or
otherwise resisting said claim or liabilities which might be imposed on the State as a result of
activities by the Subrecipient, its agents, employees or volunteers.
C. The Subrecipient acknowledges that it is not an agent, servant or employee of the State and that it
is responsible for its own acts and deeds and for those of its agents, employees or volunteers
during the performance of the MGA and PGA.
ARTICLE 21. COMPLIANCE WITH LAWS
The Subrecipient shall comply with all federal, state and local laws, statutes, ordinances, rules and
regulations, and the orders and decrees of any courts or administrative bodies or tribunals in any
matter affecting the performance of this grant, including without limitation workers' compensation
laws, minimum and maximum salary and wage statutes and regulations, nondiscrimination laws and
regulations, licensing laws, regulations, and the Texas Uniform Grant Management Standards. When
required, the Subrecipient shall furnish the State with satisfactory proof of compliance therewith.
ARTICLE 22. NONCOLLUSION
The Subrecipient warrants that it has not employed or retained any company or person, other than a
bona fide employee working for the firm, to solicit or secure this grant, and that it has not paid or
agreed to pay any company or person, other than a bona fide employee, any fee, commission,
percentage, brokerage fee, gift or any other consideration contingent upon or resulting from the
award or making of this grant. If the Subrecipient breaches or violates this warranty, the State shall
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have the right to annul this agreement without liability or, in its discretion, to deduct from the grant
price or consideration, or otherwise recover, the full amount of such fee, commission, brokerage fee,
gift, or contingent fee.
ARTICLE 23. DEBT TO THE STATE
If the comptroller is currently prohibited from issuing a warrant to Subrecipient because of a debt
owed to the State, then the Subrecipient agrees that any payments owing under the contract will be
applied towards the debt or delinquent taxes until the debt or delinquent taxes are paid in full.
ARTICLE 24. CIVIL RIGHTS
A. Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. §
2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section
202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and federal transit law at
49 U.S.C. § 5332, the Subrecipient agrees that it will not discriminate against any employee or
applicant for employment because of race, color, creed, national origin, sex, age, or disability. In
addition, the Subrecipient agrees 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 U.S.C. § 2000e, and federal transit laws at 49 U.S.C. § 5332, the Subrecipient
agrees to comply with all applicable equal employment opportunity requirements of U.S.
Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance
Programs, Equal Employment Opportunity, Department of Labor," 41 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 U.S.C. § 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 Subrecipient 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, 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
Subrecipient 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 U.S.C. § 623 and federal transit law at 49 U.S.C. § 5332, the Subrecipient
agrees to refrain from discrimination against present and prospective employees for reason of
age. In addition, the Subrecipient agrees 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 U.S.C. § 12112, the Subrecipient 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 Subrecipient agrees to comply with
any implementing requirements FTA may issue.
C. The Subrecipient 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.
anamer/Citibus
ARTICLE 25. NONDISCRIMINATION ON THE BASIS OF DISABILITY
The Subrecipient agrees that no otherwise qualified person with disability(s) shall, solely by reason of
his/her disability, be excluded from participation in, be denied the benefits of, or otherwise be subject
to discrimination under the project. The Subrecipient shall insure that all fixed facility construction or
alteration and all new equipment included in the project comply with applicable regulations set forth at
49 CFR 27, Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or
Benefiting from Federal Financial Assistance, and the Americans with Disabilities Act.
ARTICLE 26. PROGRAM INCOME
A. Except for income from royalties and proceeds from the sale of real property or equipment, the
Subrecipient shall retain program income and apply such income to allowable capital or operating
expenses. If federally funded, Program Income from royalties and proceeds from sale of real
property or equipment shall be handled as specified in Attachment A - Federal Provisions.
B. The Subrecipient shall comply with standards governing the receipt and application of program
income as set forth in 49 C.F.R. §18.25, Program Income. Program income means gross income
received by the Subrecipient directly generated by a grant supported activity, or earned only as a
result of this MGA or PGA during the time period specified in Article 1, Grant Time Period.
C. Program income includes income from fees for services performed, from the use or rental of real
or personal property acquired with grant funds, from the sale of commodities or items fabricated
under a MGA or PGA, and from payments of principal and interest on loans made with grant
funds. Except as otherwise provided in federal regulations, program income does not include
interest on grant funds, rebates, credits discounts, refunds, etc, and interest earned on any of
them..
ARTICLE 27. SUCCESSORS AND ASSIGNS
The Subrecipient binds themselves, their successors, assigns, executors and administrators in
respect to all covenants of this agreement. The Subrecipient shall not sign, sublet or transfer their
interest in this agreement without the written consent of the State.
ARTICLE 28. LEGAL CONSTRUCTION
In case any one or more of the provisions contained in this agreement shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not
affect any other provision thereof and this agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
ARTICLE 29. PRIOR AGREEMENTS
This agreement constitutes the sole and only agreement of the parties hereto and supersedes any
prior understandings or written or oral agreements between the parties respecting the public
transportation grant specifically authorized and funded under this agreement.
ARTICLE 30. SPECIAL PROVISIONS FOR CONSTRUCTION AND REPAIR CONTRACTS
A. Signs - The Subrecipient shall cause to be erected at the site of construction, and maintained
during construction, signs satisfactory to the State and the U. S Department of Transportation
identifying the project and indicating that the Government is participating in the development of the
project.
B. Hazardous Materials - The Subrecipient will conduct an inspection of the building for hazardous
materials; asbestos and lead -based paint. Removal and disposal will be in accordance with local,
state and federal regulations, prior to the initiation of construction.
gnamep/Citibus «mgas
AA _ I - A
ARTICLE 31. CHILD SUPPORT STATEMENT
The For -Profit Subrecipient certifies that it has a child support statement on file with the Office of
General Counsel - Contract Services Section (OGC-CSS) of the Texas Department of Transportation.
The Subrecipient is responsible for keeping the child support statement current and on file with that
office for the duration of the contract period. The Subrecipient further certifies that the child support
statement on file contains the child support information for the individuals or business entities named
in this contract. Under Section 231.006, Family Code, the Subrecipient certifies that the individual or
business entity named in this contract, bid, or application is not ineligible to receive the specified
grant, loan, or payment and acknowledges that this contract may be terminated and payment may be
withheld if this certification is inaccurate.
ARTICLE 32. INCORPORATION OF PROVISIONS.
Attachments are attached hereto and incorporated into this contract as if fully set forth herein
ARTICLE 33. SIGNATORY WARRANTY
The undersigned signatory for the Subrecipient hereby represents and warrants that he or she is an
officer of the organization for which he or she has executed this agreement and that he or she has full
and complete authority to enter into this agreement on behalf of the organization.
IN TESTIMONY WHEREOF, the parties hereto have caused these presents to be executed in
duplicate counterparts.
THE STATE OF TEXAS
Executed for the Executive Director and approved for the
Texas Transportation Commission for the purpose and
effect of activating and/or carrying out the orders,
established poll ' r work pro ms heretofore approved
and authoriz by t Texas Tr ion Commission.
1
By:
tc C. [VP04o
, Printed or Stamped Name
Title:
Public Transportation Division
Date:
List of Attachments to MGA
A - Federal Provisions
CITY OF LUBBOCK/CITIBUS
By:-
Signatugg of Authorized Offic r
David A. Miller
Typed, Printed or Stamped Name
Title: Mayor
Date: August 10, 2006
«name*/Citibus «mga»
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APPROVED
RECIPIENT
ATTEST:
Re ecca Garza
City Secretary
Date: August 10, 2006
APPROVED AS TO CONTENT:
5
Ja es Loomis
erector of Aviation
APPROVED AS TO FORM:
�f,
Knight
Assistant City Attorney
Resolution No. 2006-R0375
August 10, 2006
Item No. 5.11
ATTACHMENT A
FEDERAL PROVISIONS
TABLE OF CONTENTS
Section 1. Project Implementation
A. General Requirements.
B. U.S. DOT Administrative Requirements.
C. Application of Federal, State, and Local Laws and Regulations.
D. Significant Participation by a Third Party Contractor.
E. Subrecipient's Responsibility to Extend Federal Requirements to Other Entities.
F. No State or Federal Government Obligations to Third Parties.
G. Changes in Project Performance (i.e., Disputes, Breaches, Defaults or Litigation).
H. Incorporation of Federal Transit Administration (FTA) Terms
I. State and Local Law Disclaimer
J. Federal Changes
Section 2. Ethics
A. Debarment and Suspension.
B. Lobbying Restrictions.
C. False or Fraudulent Statements or Claims.
Section 3. Accounting Records
A. Project Accounts.
B. Documentation of Project Costs and Program Income.
Section 4.
Reporting, Record Retention, and Access
A. Record Retention.
B. Access to Records.
C. Project Close-out.
Section 5. Costs Reimbursed
Section 6. Civil Rights
A. Nondiscrimination.
B. Equal Employment
C. Requirements.
Section 7. Bus Requirements
A. Charter Service Operations
B. School Bus Operations
Section 8. Procurement
A. Federal Standards.
B. Buy America.
C. Exclusionary or Discriminatory Specifications.
D. Bus Seat Specifications.
E. Clean Air and Clean Water.
F. Preference for Recycled Products.
G. Architectural, Engineering, Design, or Related Services.
H. Award to Other than the Lowest Bidder.
I. Rolling Stock.
J. Bonding.
K. National Intelligent Transportation Systems Architecture and Standards.
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L. Fly America Requirements.
M. Cargo Preference.
Section 9. Leases
A. Capital Leases.
B. Leases Involving Certificates of Participation.
C. Cross -Border Leases.
Section 10. Patent Rights
A. General.
B. Federal Rights.
Section 11. Rights in Data and Copyrights
A. Definition.
B. State and Federal Restrictions.
C. Federal Rights in Data and Copyrights.
D. Special Rights in Data for Research, Development, Demonstration, and Special
Studies (Planning) Projects.
E. Hold Harmless.
F. Restrictions on Access to Patent Rights.
G. Statutory Requirements to Release Data.
Section 12. Use of Real Property, Equipment, and Supplies
A. Use of Property.
B. General Federal Requirements.
C. 5310 Program.
D. Maintenance.
E. Records.
F. Encumbrance of Project Property.
G. Transfer of Project Property.
H. Disposition of Project Property.
I. Misused or Damaged Project Property.
J. Obligations After Project Close-out.
Section 13. Insurance
A. Minimum Requirements,
B. Flood Hazards.
Section 14. Relocation
A. Relocation Protections.
B. Nondiscrimination in Housing.
Section 15. Real Property
A. Land Acquisition.
B. Covenant Assuring Nondiscrimination.
C. Recording Title of Real Property.
D. FTA Approval of Changes in Real Property Ownership.
Section 16. Construction
A. Drafting, Review, and Approval of Construction Plans and Specifications.
B. Supervision of Construction.
C. Construction Reports.
D. Project Management for Major Capital Projects.
E. Seismic Safety.
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Section 17. Employee Protections
A. Construction Activities.
B. Activities Not Involving Construction.
C. State and Local Government Employees,
D. Transit Employee Protective Arrangements.
Section 18. Environmental Requirements
A. Use of Public Lands.
B. Coastal Zone Management.
C. Environmental Justice.
Section 19. Energy Conservation
Section 20. State Management and Monitoring Systems
Section 21. Privacy Act
Section 22. Not Applicable
Section 23. Metric System
Section 24. Substance Abuse
A. Drug Abuse.
B. Alcohol Abuse.
Section 25. State Safety Oversight of Rail Fixed Guideway Public Systems
Section 26. Seat Belt Use
Section 27. Special Requirements for Urbanized Area Formula Projects
A. Fares and Services.
B. Audit Requirements.
C. Half -Fare Requirements.
D. Procurement of an Associated Capital Maintenance Product.
E. Transit Security.
F. Restrictions on the Use of Formula Assistance for Operations.
G. Reporting Requirements.
H. Criminal Sanctions.
Section 28. Not Applicable
Section 29. Special Requirements for Job Access and Reverse Commute Grant Projects
A. General Requirements.
B. Restrictions on the Use of Grant Funds,
Section 30. Special Requirements for Over -the -Road Bus Accessibility Projects
A. General Requirements.
B. Special Requirements.
C. FTA Notice.
Section 31. Disputes, Breaches, Defaults, or Other Litigation
A. Notification.
B. Federal Interest in Recovery.
C. Enforcement.
D. State and FTA Concurrence.
E. Termination for Convenience.
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FEDERAL GENERAL TERMS AND CONDITIONS
FOR PUBLIC TRANSPORTATION PROJECTS
This document contains standard terms and conditions governing the administration of a public
transportation project supported with federal assistance through the Texas Department of
Transportation ("State").
The State and the Subrecipient/Subgrantee ("Subrecipient") understand and agree that not
every provision of this document will apply to every Subrecipient or every project depending
upon the nature of the Project and the section of the statute authorizing the financial assistance.
Thus, in consideration of the mutual covenants, promises, and representations herein, the State
and the Subrecipient agree as follows:
Section 1. Project Implementation
A. General requirements.
1. Effective Date. The effective date of this agreement is the date of final execution
by both parties. The Subrecipient agrees to begin the Project in a timely manner.
2. Subrecipient's Capacity. The Subrecipient agrees to maintain or acquire sufficient
legal, financial, technical, and managerial capacity to plan, manage, and
complete the Project, and provide for the use of Project facilities and equipment,
to comply with the terms of the agreement, and all applicable federal laws,
executive orders, regulations, directives, and published policies governing this
Project.
3. Completion Dates. The Subrecipient agrees to complete the Project in a timely
manner.
B. U.S. DOT Administrative Requirements. The Subrecipient acknowledges that federal
administrative requirements differ based on the type of entity receiving federal
assistance:
1. A Subrecipient that is a State, a local government, or an Indian tribal government
agrees to comply with U.S. DOT regulations, "Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local
Governments," 49 C.F.R. Part 18.
2. A Subrecipient that is an institution of higher education or a nonprofit
organization agrees to comply with U.S. DOT regulations, "Uniform
Administrative Requirements for Grants and Agreements with Institutions of
Higher Education, Hospitals, and Other Non -Profit Organizations," 49 C.F.R. Part
19.
C. Application of Federal, State, and Local Laws and Regulations. The Subrecipient
acknowledges that federal laws, regulations, policies, and related administrative
practices applicable to the Project may be modified from time to time. The Subrecipient
agrees that the most recent of such federal requirements will govern the administration
of the Project at any particular time, unless FTA issues a written determination
otherwise. The Subrecipient agrees to include notice in each agreement with any third
party contractor participating in the Project that state or federal requirements may
change and the changed requirements will apply to the Project as required, unless the
state or federal government determines otherwise.
D. Significant Participation by a Third Party Contractor. Although the Subrecipient may
enter into a third party contract in which the third party contractor agrees to provide
property or services in support of the Project, or even carry out Project activities normally
performed by the Subrecipient, the Subrecipient continues to remain responsible to the
Federal Transportation Administration (FTA) for compliance with federal requirements.
E. Subrecipient's Responsibility to Extend Federal Requirements to Other Entities.
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1. Entities Affected. The Subrecipient agrees to take appropriate measures
necessary to ensure any third party contractors comply with applicable federal
requirements.
2. Documents Affected. The Subrecipient agrees to require its third party
contractors to include adequate provisions to ensure compliance with applicable
federal requirements in each lower tier subcontract and subagreement financed
in whole or in part with financial assistance.
F. No State or Federal Government Obligations to Third Parties. The Subrecipient agrees
that, absent the state or federal government's express written consent, the state or
federal government shall not be subject to any obligations or liabilities to any
Subrecipient or any third party contractor, or any other person.
G. Changes in Project Performance (i.e., Disputes, Breaches, Defaults or Litigation). The
Subrecipient agrees to notify the State immediately of any change in conditions (such as
its legal, financial, or technical capacity), or any other event that may significantly affect
the Subrecipient's ability to perform the Project.
H. Incorporation of Federal Transit Administration (FTA) Terms. The preceding provisions
include, in part, certain Standard Terms and Conditions required by DOT, whether or not
expressly set forth in the preceding contract provisions. All contractual provisions
required by DOT, as set forth in FTA Circular 4220.1 D, dated April 15, 1996 and as
amended August 4, 1998, 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
Subrecipient shall not perform any act, fail to perform any act, or refuse to comply with
any requests which would cause anyone to be in violation of the FTA terms and
conditions.
1. State and Local Law Disclaimer. The wording in the suggested clauses in the FTA Best
Practices Procurement Manual is not governed by federal law, but is significantly
affected by State law. The language of the suggested clauses may need to be modified
depending on state law, and that before the suggested clauses are used in the
subrecipient's procurement documents, the subrecipient's should consult with its local
attorney.
J. Federal Changes. Subrecipient shall at all times comply with all applicable FTA
regulations, policies, procedure and directives, as they may be amended or promulgated
from time to time during the term of any contract related to this solicitation.
Subrecipient's failure to so comply may constitute a material breach of the underlying
contract.
Section 2. Ethics
A. Debarment and Suspension. The Subrecipient agrees to comply, and assures the
compliance of any third party contractor, with Executive Order Numbers 12549 and
12689, "Debarment and Suspension," 31 U.S.C. §6101 note, and U.S. DOT regulations,
"Government wide Debarment and Suspension (Nonprocurement)," within 49 C.F.R.
Part 29.
B. Lobbying Restrictions. The Subrecipient agrees to:
1. Refrain from using federal assistance funds to support lobbying,
2. Comply, and assure the compliance of each third party contractor at any tier with
U.S. DOT regulations, "New Restrictions on Lobbying," 49 C.F.R. Part 20,
modified as necessary by 31 U.S.C. §1352.
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
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State legislature on legislation or appropriations, except through proper, official
channels.
4. Sign the Lobbying Certification attached.
C. False or Fraudulent Statements or Claims. The Subrecipient acknowledges and agrees
that:
1. The Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. §3801
et seq. and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R.
Part 31, apply to its activities in connection with the Project. Accordingly, by
executing the agreement, the Subrecipient 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 the agreement. In addition to other
penalties that may apply, the Subrecipient also acknowledges that if it makes a
false, fictitious, or fraudulent claim, statement, submission, or certification to the
state or federal government, the federal government reserves the right to impose
the penalties of the Program Fraud Civil Remedies Act of 1986, as amended, to
the extent the federal government deems appropriate.
2. If the Subrecipient makes a false, fictitious, or fraudulent claim, statement,
submission, or certification to the State in connection with an urbanized area
formula project financed with federal assistance authorized for 49 U.S.C. §5307,
the Government reserves the right to impose the penalties of 18 U.S.C. §1001
and 49 U.S.C. §5307(n)(1), to the extent the federal government deems
appropriate.
Section 3. Accounting Records
A. Project Accounts. The Subrecipient 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. The Subrecipient
agrees that all checks, payrolls, invoices, contracts, vouchers, orders, or other
accounting documents related in whole or in part to the Project shall be clearly identified,
readily accessible and available to FTA upon its request, and, to the extent feasible, kept
separate from documents not related to the Project.
B. Documentation of Project Costs and Program Income. The Subrecipient agrees to
support all costs charged to the Project, including any approved services contributed by
the Subrecipient or others, with properly executed payrolls, time records, invoices,
contracts, or vouchers describing in detail the nature and propriety of the charges. The
Subrecipient 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 the general federal program income requirements.
Section 4. Reporting, Record Retention, and Access
A. Record Retention. The Subrecipient agrees to maintain intact and readily accessible all
data, documents, reports, records, contracts, and supporting materials relating to the
Project as the State or the federal government may require during the course of the
Project and for four years thereafter.
B. Access to Records. Upon request, the Subrecipient agrees to permit and require its
Subrecipients to permit the U.S. Secretary of Transportation, the Comptroller General of
the United States, and the State, or their authorized representatives, to inspect all
Project work, materials, payrolls, and other data, and to audit the books, records, and
accounts pertaining to the Project.
C. Project Close-out. Project close-out does not alter the reporting and record retention
requirements of this Agreement.
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Section 5.
Costs Reimbursed
The Subrecipient
understands and agrees that Project costs eligible for participation must
comply with all
the following requirements:
1.
Conform with the Approved Project Description, the Project Budget, and all other
terms of the agreement;
2.
Are necessary in order to accomplish the Project;
3.
Are reasonable for the goods or services purchased;
4.
Are actual net costs to the Subrecipient (i.e., the price paid minus any refunds,
rebates, or other items of value received by the Subrecipient that have the effect
of reducing the cost actually incurred, excluding program income);
5.
Are incurred within the agreement time period;
6.
Are satisfactorily documented;
7.
Are treated consistently in accordance with accounting principles and procedures
approved by the State;
8.
Are eligible under state and federal law, regulation, rule, or guidelines for
participation; and
9.
Unless permitted otherwise by federal statute or regulation, comply with the: (1)
U.S. Office of Management and Budget (OMB) Circular A-87, Revised, "Cost
Principles for State and Local Governments" if the Subrecipient is a local
government or an Indian tribal government; (2) OMB Circular A-21, Revised,
"Cost Principles for Educational Institutions" if the Subrecipient is an institution of
higher education; (3) OMB Circular A-122, Revised, "Cost Principles for Non -
Profit Organizations" if the Subrecipient is a private nonprofit organization; or (4)
Federal Acquisition Regulation, 48 C.F.R. Chapter I, Subpart 31.2, "Contracts
with Commercial Organizations" if the Subrecipient is a for -profit organization.
Additionally, the Subrecipient shall comply with the requirements of the Single
Audit Act of 1984, P.L. 98-502, ensuring that the single audit report includes the
coverage stipulated in OMB Circular A-133.
Section 6. Civil Rights
The Subrecipient agrees to comply with all applicable civil rights statutes and implementing
regulations including, but not limited to, the following:
(A) Nondiscrimination- In accordance with Title VI of the Civil Rights Act, as amended, 42
U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. §
6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and federal
transit law at 49 U.S.C.§ 5332, the Subrecipient agrees that it will not discriminate against any
employee or applicant for employment because of race, color, creed, national origin, sex, age,
or disability. In addition, the Subrecipient agrees 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 U.S.C. § 2000e, and federal transit laws at 49 U.S.C. §
5332, the Subrecipient agrees to comply with all applicable equal employment
opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of
Federal Contract Compliance Programs, Equal Employment Opportunity, Department of
Labor," 41 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
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U.S.C. § 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 Subrecipient 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, 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 Subrecipient 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 U.S.C. § 623 and federal transit law at 49 U.S.C. § 5332, the
Subrecipient agrees to refrain from discrimination against present and prospective
employees for reason of age. In addition, the Subrecipient agrees 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 U.S.C. § 12112, the Subrecipient 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
Subrecipient agrees to comply with any implementing requirements FTA may issue.
(C) Requirements. The Subrecipient 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.
Section 7. Bus Requirements
The Subrecipient agrees to comply with the following:
A. Charter Service Operations. The Subrecipient agrees to comply with 49 U.S.C. 5323(d)
and 49 CFR Part 604, which provides 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 provision of mass transportation.
B. School Bus Operations. Pursuant to 69 U.S.C. 5323(f) and 49 CFR Part 605, 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 8. Procurement
To the extent applicable, the Subrecipient agrees to comply with the following third party
procurement requirements:
A. Federal Standards. The Subrecipient agrees to comply with FTA Circular 4220.1 D,
"Third Party Contracting Requirements," including any revision or replacement thereof,
and applicable federal regulations or requirements, including FTA third party contracting
regulations when promulgated. The FTA Best Practices Procurement Manual provides
additional procurement guidance. Nevertheless, be aware that the FTA Best Practices
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Procurement Manual is focused on procurement processes and may omit certain federal
requirements applicable to the work to be performed.
B. Buy America. The Subrecipient agrees to comply with 49 U.S.C. § 53230) 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 $100,000) made with capital, operating, or planning funds. Separate requirements
for rolling stock are set out at § 53230)(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.
A bidder or offeror must submit to the FTA recipient the appropriate Buy America
certification with all bids on FTA-funded contracts, except those subject to a general
waiver. Bids or offers that are not accompanied by a completed Buy America certification
must be rejected as nonresponsive. This requirement does not apply to lower tier
subcontractors.
C. Exclusionary or Discriminatory Specifications. Apart from inconsistent requirements
imposed by federal statute or regulations, the Subrecipient agrees to comply with the
requirements of 49 U.S.C. §5323(h)(2) by refraining from using any federal assistance
awarded by FTA to support procurements using exclusionary or discriminatory
specifications.
D. Bus Seat Specifications. The Subrecipient may use specifications conforming with the
requirements of 49 U.S.C. §5323(e) to acquire bus seats.
E. Clean Air and Clean Water, The Subrecipient agrees to include in third party contracts
exceeding $100,000 adequate provisions to ensure that Project participants report the
use of facilities placed or likely to be placed on EPA's "List of Violating Facilities," refrain
from using violating facilities, report violations to FTA and the Regional EPA Office, and
comply with the inspection and other applicable requirements of:
1. Section 114 of the Clean Air Act, as amended, 42 U.S.C. §7414, and other
applicable provisions of the Clean Air Act, as amended, 42 U.S.C. §7401 et seq.;
and
2. Section 308 of the federal Water Pollution Control Act, as amended, 33 U.S.C.
§1318, and other provisions of the Federal Water Pollution Control Act, as
amended, 33 U.S.C. §1251 et seq.
F. Preference for Recycled Products. To the extent applicable, the Subrecipient agrees to
comply with U.S. Environmental Protection Agency (U.S. EPA) "Comprehensive
Procurement Guidelines for Products Containing Recovered Materials," 40 C.F.R. Part
247, implementing section 6002 of the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. §6962, and otherwise provide a competitive preference for products
and services that conserve natural resources and protect the environment and are
energy efficient.
G. Architectural, Engineering, Design, or Related Services. When procuring architectural,
engineering, or related services, the Subrecipient agrees to comply with the provisions of
49 U.S.C. §5325(b), either by negotiating for those services in the same manner as a
contract for architectural and engineering services is negotiated under Title IX of the
Federal Property and Administrative Services Act of 1949, as amended, 40 U.S.C. §541
et seq., or by using an equivalent qualifications -based requirement of the State. When,
awarding contracts for architectural, engineering, or related services, the Subrecipient
agrees to accept undisputed audits conducted by other governmental agencies, in
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accordance with 23 U.S.C. §112(b)(2) (C) through (F). To the extent the Subrecipient
qualifies for an exception in accordance with 49 U.S.C. §5325(b), however, this
subsection does not apply.
H. Award to Other than the Lowest Bidder. In accordance with 49 U.S.C. §5325(c), a
Subrecipient may award a third party contract to a party other than the lowest bidder,
when such an award furthers objectives consistent with the purposes of 49 U.S.C.
Chapter 53 and any implementing regulations, directives, circulars, manuals, or other
guidance FTA may issue and is consistent with state law.
1. Rolling Stock. In acquiring rolling stock, the Subrecipient agrees as follows:
1. Method of Acquisition. The Subrecipient may award a third party contract for
rolling stock based on initial capital costs, performance, standardization, life cycle
costs, and other factors, or based on a competitive procurement process, in
accordance with 49 U.S.C. §5326(c).
2. Multi -year Options. In accordance with 49 U.S.C. §5326(b)(1), a Subrecipient
may procure rolling stock using financial assistance appropriated for 49 U.S.C.
Chapter 53 using a contract with an option, not to exceed 5 years after the date
of the original contract, to purchase additional rolling stock or replacement.
3. Pre -Award and Post -Delivery Requirements. The Subrecipient 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.
4. Bus Testing. To the extent applicable, the Subrecipient agrees to comply with the
requirements of 49 U.S.C. §5323(c) and FTA regulations, "Bus Testing," 49
C.F.R. Part 665, and any revision thereto.
J. Bonding. To the extent applicable, the recipient agrees to comply with the following
bonding requirements.
1. Construction Activities. The Subrecipient agrees to provide bid guarantee,
contract performance, and payment bonding to the extent deemed adequate by
FTA and applicable federal regulations, and comply with any other bonding
requirements FTA may issue.
2. Other Activities, The Subrecipient agrees to comply with any other bonding
requirements or restrictions FTA may impose.
K. National Intelligent Transportation Systems Architecture and Standards. The
Subrecipient agrees to conform, to the extent applicable, to the National Intelligent
Transportation Standards architecture in compliance with section 5206(e) of TEA-21, 23
U.S.C. §502 note, and with FHWA/FTA's "Transportation Equity Act for the 21st Century;
the Interim Guidance on Conformity with the National Intelligent Transportation Systems
(ITS) Architecture and Standards," 63 Fed. Reg. 70443 et seq., December 21, 1998, and
other subsequent federal directives that may be issued.
L. Fly America Requirements. The Subrecipient agrees to comply with 49 U.S.C. § 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 Subrecipient shall submit, if
a foreign air carrier was used, an appropriate 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 Subrecipient agrees to include the
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requirements of this section in all subcontracts that may involve international air
transportation.
M. Cargo Preference. Use of United States -Flag Vessels - The Subrecipient agrees:
1. 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;
2. 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 Subrecipient in the case of a
subcontractor's bill -of -lading.)
3. 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.
Section 9. Leases
A. Capital Leases. To the extent applicable, the Subrecipient agrees to comply with FTA
regulations, "Capital Leases," 49 C.F.R. Part 639, and any revision thereto.
B. Leases Involving Certificates of Participation. The Subrecipient agrees to obtain FTA
concurrence before entering into a leasing arrangement involving the issuance of
certificates of participation in connection with the acquisition of any capital asset.
C. Cross -Border Leases. To the extent applicable, the Subrecipient agrees to comply with
FTA Circular 7020.1, "Cross -Border Leasing Guidelines," April 26, 1990, in connection
with the acquisition of capital assets involving a cross -border Pease.
Section 10. Patent Rights
A. General. If any invention, improvement, or discovery of the Subrecipient or any of its
third party contractors is conceived or first actually reduced to practice in the course of or
under the Project, and that invention, improvement, or discovery is patentable under the
laws of the United States of America or any foreign country, the Subrecipient agrees to
notify FTA immediately and provide a detailed report.
B. Federal Rights. The Subrecipient agrees that its rights and responsibilities, and those of
each third party contractor at any tier pertaining to that invention, improvement, or
discovery will be determined in accordance with applicable state and federal laws,
regulations, including any waiver thereof. Absent a determination in writing to the
contrary by the state and federal government, the Subrecipient agrees to transmit to the
State and FTA those rights due the state and federal government in any invention,
improvement, or discovery resulting from that third party contract as specified in U.S.
Department of Commerce regulations, "Rights to Inventions Made by Nonprofit
Organizations and Small Business Firms Under Government Grants, Contracts and
Cooperative Agreements," 37 C.F.R. Part 401 (implementing the Presidential
Memorandum [Statement] on Government Patent Policy to the Heads of Executive
Departments and Agencies, dated February 18, 1983, 19 Weekly Comp. Pres. Doc. 252-
253, Feb. 28, 1983), irrespective of the status of the Recipient, any Subrecipient, or any
third party contractor at any tier (i.e., a large business, small business, State government
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or State instrumentality, local government, nonprofit organization, institution of higher
education, individual, etc.).
Section 11. Rights in Data and Copyrights
A. Definition. The term "subject data" used in this section means recorded information,
whether or not copyrighted, that is delivered or specified to be delivered under the
agreement. Examples include, but are not limited to: computer software, standards,
specifications, engineering drawings and associated lists, process sheets, manuals,
technical reports, catalog item identifications, and related information. The term "subject
data" used in this section does not include financial reports, cost analyses, or similar
information used for Project administration.
B. State and Federal Restrictions. Except for its own internal use, the Subrecipient may not
publish or reproduce subject data in whole or in part, or in any manner or form, nor may
the Subrecipient authorize others to do so, without the written consent of the state and
federal government, until such time as the state and federal government may have either
released or approved the release of such data to the public unless the Subrecipient is an
institution of higher learning.
C. Federal Rights in Data and Copyrights. The Subrecipient agrees to provide to the state
and federal government a royalty -free, non-exclusive and irrevocable license to
reproduce, publish, or otherwise use, and to authorize others to use, for state and
federal government purposes the "subject data." As used in the previous sentence, "for
state and federal government purposes," means use only for the direct purposes of the
state and federal government. Without the copyright owner's consent, the state and
federal government may not extend to other parties the state or federal government's
license to:
1. Any subject data developed under the agreement or under a third party contract
financed by the agreement, whether or not a copyright has been obtained; and
2. Any rights of copyright to which a Subrecipient or a third party contractor
purchases ownership with federal assistance.
D. Special Rights in Data for Research, Development, Demonstration, and Special Studies
(Planning) Projects. FTA's and the State's purpose in providing financial assistance for a
special studies (planning), research, development, or demonstration Project, is to
increase transportation knowledge, rather than limit the benefits of the Project to
participants in the Project. Therefore, unless FTA and the State determine otherwise, the
Subrecipient of financial assistance to support a research, development, demonstration,
or a special studies (planning) Project agrees that, in addition to the rights in data and
copyrights of this agreement, FTA and the State may make available to any FTA
recipient, Subrecipient, third party contractor, or third party subcontractor, either FTA's or
the State's license in the copyright to the subject data or a copy of the subject data. If the
Project is not completed for any reason whatsoever, all data developed under that
Project shall become subject data and shall be delivered as the FTA and the State may
direct. This Subsection does not apply to adaptations of automatic data processing
equipment or programs for the Subrecipient's use whose costs are financed with federal
funds for capital Projects.
E. Hold Harmless. Except as prohibited or otherwise limited by law, the Subrecipient
agrees to indemnify, save, and hold harmless the sate and the federal government and
its officers, agents, and employees acting within the scope of their official duties against
any liability, including costs and expenses, resulting from any willful or intentional
violation by the Subrecipient of proprietary rights, copyrights, or right of privacy, arising
out of the publication, translation, reproduction, delivery, use, or disposition of any data
furnished under the Project.
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F. Restrictions on Access to Patent Rights. Nothing in this section shall imply a license to
the state and the federal government under any patent or be construed to affect the
scope of any license or other right otherwise granted to the federal government under
any patent.
G. Statutory Requirements to Release Data. The Subrecipient understands and agrees that
data and information submitted may be required to be made available for dissemination
under the Texas Public Information (Government Code, Chapter 552) or Freedom of
Information Act, or other federal statute(s) in accordance with implementation
instructions contained in 49 C.F.R. §19.36, revised March, 2000, to the extent
applicable, and any subsequent applicable state or federal requirements that may be
promulgated.
Section 12. Use of Real Property, Equipment, and Supplies
Unless otherwise approved by FTA, the Subrecipient agrees to comply with the following
requirements with respect to real property, equipment, and supplies:
A. Use of Property. The Subrecipient agrees to use Project real property, equipment, and
supplies for appropriate Project purposes (which may include joint development
purposes that generate program income, both during and after the award period used to
support transit activities) for the duration of the useful life of that property, as required by
FTA. Should the Subrecipient unreasonably delay or fail to use Project property during
the useful life of that property, the Subrecipient agrees that it may be required to return
the entire amount of the federal assistance expended on that property. The Subrecipient
further agrees to notify FTA immediately when any Project property is withdrawn from
Project use or when Project property is used in a manner substantially different from the
representations made in the Application or the Project Description for the Grant
Agreement.
B. General Federal Requirements. A Subrecipient that is a State, a local government, or an
Indian tribal government agrees to comply with property management standards of 49
C.F.R. §18.31 through 18.34, including any amendments thereto, and other applicable
guidelines or regulations the federal government may issue. A Subrecipient that is an
institution of higher education, or a private nonprofit organization, agrees to comply with
49 C.F.R. §19.30 through 19.37, including any amendments thereto, and other
applicable guidelines or regulations the federal government may issue. Any exception to
the requirements of 49 C.F.R. §18.31 through 18.34, and to 49 C.F.R. §19.30 through
19.37, requires the express approval of the state and federal government. A
Subrecipient that is a for -profit organization agrees to comply with property management
standards satisfactory to FTA. Nevertheless, FTA has established specific
reimbursement requirements for premature dispositions of certain Project equipment
(i.e., when Project equipment is withdrawn from appropriate use before the expiration of
the equipment's useful life established by FTA).
C. 5310 Program. The Subrecipient, where practical, shall make available the vehicle
purchased under this program to provide transportation to other elderly persons and
persons with disabilities beyond the Subrecipient's own clients when not being used for
grant -related purposes. According to FTA C 9070.1 E, the Recipient/Subrecipient shall
also provide transportation to the general public on an incidental basis if such service
does not interfere with transportation services for the general elderly and disabled public.
D. Maintenance. The Subrecipient agrees to maintain Project real property and equipment
in good operating order, in compliance with any guidelines, directives, or regulations the
State or FTA may issue.
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E. Records. The Subrecipient agrees to keep satisfactory records regarding the use of
Project real property, equipment, and supplies, and submit to the FTA upon request
such information as may be required to assure compliance.
F. Encumbrance of Project Property. The Subrecipient agrees to maintain satisfactory
continuing control of Project real property or equipment. Thus, absent written
authorization by FTA permitting otherwise:
1. Written Transactions. The Subrecipient agrees to refrain from executing any
transfer of title, lease, lien, pledge, mortgage, encumbrance, third party contract,
grant anticipation note, alienation, or any other obligation that in any way would
affect the federal or state interest in any Project real property or equipment.
2. Oral Transactions. The Subrecipient agrees to refrain from obligating itself in any
manner to any third party with respect to Project real property or equipment.
3. Other Actions. The Subrecipient agrees to refrain from taking any action that
would either adversely affect the federal or state interest or impair the Recipient's
continuing control of the use of Project real property or equipment.
G. Transfer of Project Property. The Subrecipient understands and agrees as follows:
1. Subrecipient Request. The Subrecipient may transfer assets financed with
federal assistance authorized for 49 U.S.C. chapter 53 to a public body to be
used for any public purpose with no further obligation to the federal government,
provided the transfer is approved by the State and Federal Transit Administrator
and conforms with the requirements of 49 U.S.C. §5334(g)(1) and (2).
2. Direction, The Subrecipient agrees that the State may direct the disposition of,
and even require the Subrecipient to transfer title to, any real property,
equipment, or supplies financed with federal assistance.
3. Leasing Project Property to Another Party. If the Subrecipient leases any Project
asset to another party, the Subrecipient agrees to retain ownership of the leased
asset, and assure that the lessee will use the Project asset appropriately, either
through a "Lease and Supervisory Agreement" between the Subrecipient and
lessee, or another similar document. Upon request, the Subrecipient agrees to
provide a copy of any relevant documents.
H. Disposition of Project Property. With prior FTA and State approval, the Subrecipient may
sell, transfer, or lease Project property and use the proceeds to reduce the gross project
cost of other eligible capital transit projects to the extent permitted by 49 U.S.C.
§5334(g)(4). Nevertheless, the Subrecipient agrees that the State may establish the
useful life for Project property, and that the Subrecipient will use Project property
continuously and appropriately throughout that useful life.
1. Project Property Whose Useful Life Has Expired. When the useful life of Project
Property has expired, the Subrecipient agrees to comply with FTA's and the
State's disposition requirements.
2. Project Property Prematurely Withdrawn from Use. For property withdrawn from
appropriate use before its useful life has expired, the Subrecipient agrees as
follows:
a) Notification Requirement. The Subrecipient agrees to notify the State
immediately when any Project real property, equipment, or supplies are
prematurely withdrawn from appropriate use, whether by planned withdrawal,
misuse, or casualty loss.
b) Calculating the Fair Market Value of Prematurely Withdrawn Project Property.
The Subrecipient agrees that the federal government retains a federal
interest in the fair market value of Project property prematurely withdrawn
from mass transportation use. The amount of the federal interest in the
property shall be determined on the basis of the ratio of the federal
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assistance awarded by the federal government for the property to the actual
cost of the Property. The Subrecipient agrees that the fair market value of
property prematurely withdrawn from use will be calculated as follows:
1) Equipment and Supplies. Unless otherwise determined in writing by the
State, fair market value shall be calculated by straight-line depreciation of
the equipment or supplies, based on the useful life of the equipment or
supplies established or approved by the state.
The fair market value of equipment and supplies shall be the value
immediately before the occurrence prompting the withdrawal of that
property from use. In the case of equipment or supplies lost or damaged
by fire, casualty, or natural disaster, the fair market value shall be
calculated on the basis of the condition of that property immediately
before the fire, casualty, or natural disaster, irrespective of the extent of
insurance coverage. As authorized by 49 C.F.R. §18.32(b), the state may
use its own disposition procedures, provided that those procedures
comply with the state's laws.
2) Real Property. The Subrecipient agrees that the fair market value of real
property shall be determined either by competent appraisal based on an
appropriate date approved by the federal government, as provided by 49
C.F.R. Part 24, or by straight line depreciation, whichever is greater.
3) Exceptional Circumstances. The State reserves the right to require the
use of another method of determining the fair market value of property. In
unusual circumstances, the Subrecipient may request that another
reasonable valuation method be used including, but not limited to,
accelerated depreciation, comparable sales, or established market
values. In determining whether to approve such a request, the state may
consider any action taken, omission made, or unfortunate occurrence
suffered by the Subrecipient with respect to the preservation or
conservation of project property withdrawn from appropriate use.
c) Obligations. Unless otherwise approved in writing by the State, the
Subrecipient is required to remit to the state the federal interest in the fair
market value of Project real property, equipment, or supplies prematurely
withdrawn from appropriate use. In the case of fire, casualty, or natural
disaster, the Subrecipient may fulfill its responsibilities with respect to the
federal interest remaining in the damaged equipment or supplies by either:
1) Investing an amount equal to the remaining federal interest in like -kind
equipment or supplies that are eligible for assistance within the scope of
the Project that provided financial assistance for the damaged equipment
or supplies; or
2) Returning an amount equal to the remaining federal interest in the
damaged property.
I. Misused or Damaged Project Property. If any damage to Project real property,
equipment, or supplies results from abuse or misuse of that property occurring with the
Subrecipient's knowledge and consent, the Subrecipient agrees to restore that real
property or equipment to its original condition or refund the value of the federal interest
in the damaged property, as the State may require.
J. Obligations After Project Close-out. A Subrecipient that is a state, local, or indian tribal
government agrees that Project close-out will not alter its property management
obligations and applicable State and federal rules and regulations and other FTA
requirements or directives.
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Section 13. Insurance
In addition to any other insurance requirements that may apply in connection with the Project,
the Subrecipient agrees as follows:
A. Minimum Requirements. At a minimum, the Subrecipient agrees to comply with the
insurance requirements normally imposed by the laws, regulations, and ordinances
imposed by its State and local governments. For construction and/or repair contracts,
the Subrecipient shall comply with insurance requirements as established in 49 C.F.R.
Part 18.
B. Flood Hazards. To the extent applicable, the Subrecipient agrees to comply with the
flood insurance purchase requirements of section 102(a) of the Flood Disaster
Protection Act of 1973, 42 U.S.C. §4012a(a), with respect to any Project activity
involving construction or acquisition having an insurable cost of $10,000 or more.
Section 14. Relocation
When relocation of individuals or businesses is required, the Subrecipient agrees to comply with
the following requirements:
A. Relocation Protections. The Subrecipient agrees to comply with the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.C.
§4601 et seq.; and U.S. DOT regulations, "Uniform Relocation and Real Property
Acquisition for Federal and Federally Assisted Programs," 49 C.F.R. Part 24, which
provide for fair and equitable treatment of persons displaced or whose property is
acquired as a result of federal and federally assisted programs. These requirements
apply to all interests in real property acquired for Project purposes regardless of federal
participation in purchases.
B. Nondiscrimination in Housing. The Subrecipient agrees to comply with Title VIII of the
Civil Rights Act of 1968, 42 U.S.C. §3601 et seq. and Executive Order No. 12892,
"Leadership and Coordination of Fair Housing in Federal Programs: Affirmatively
Furthering Fair Housing," 42 U.S.C. §3608 note, when carrying out its responsibilities to
provide housing used to meet federal relocation requirements.
Section 15. Real Property
For Projects involving real property, the Subrecipient agrees as follows:
A. Land Acquisition. The Subrecipient agrees to comply with the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.C.
§4601 et seq.; and U.S. DOT regulations, "Uniform Relocation and Real Property
Acquisition for Federal and Federally Assisted Programs," 49 C.F.R. Part 24. These
requirements apply to all interests in real property acquired for Project purposes
regardless of federal participation in purchases.
B. Covenant Assuring Nondiscrimination. The Subrecipient agrees to include a covenant in
the title of the real property to assure nondiscrimination during the useful life of the
Project.
C. Recording Title to Real Property. To the extent required by the State and FTA, the
Subrecipient agrees to record the state and federal interest in the title of real property.
D. Approval of Changes in Real Property Ownership. The Subrecipient agrees that it will
not dispose of, modify the use of, or change the terms of the real property title, or other
interest in the site and facilities without permission and instructions from the State.
Section 16. Construction
For activities involving construction, the Subrecipient agrees as follows:
A. Drafting, Review, and Approval of Construction Plans and Specifications. To the extent
required by the State, the Subrecipient agrees to comply with State requests pertaining
to the drafting, review, and approval of construction plans and specifications.
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B. Supervision of Construction. The Subrecipient agrees to provide and maintain
competent and adequate engineering supervision at the construction site to ensure that
the complete work conforms to the approved plans and specifications.
C. Construction Reports. The Subrecipient agrees to provide progress reports and such
other information as may be required by the State.
D. Project Management for Major Capital Projects. The Subrecipient agrees to comply with
FTA regulations, "Project Management Oversight," 49 C.F.R. Part 633, and any revision
thereto, applicable to a Major Capital Project.
E. Seismic Safety. The Subrecipient agrees to comply with the U.S. DOT regulations at 49
C.F.R. Part 41, Executive Order No. 12699, "Seismic Safety of Federal and Federally -
Assisted or Regulated New Building Construction," 42 U.S.C. §7704 note, pursuant to
the Earthquake Hazards Reduction Act of 1977, as amended, 42 U.S. C. §7701 et seq.,
pertaining to seismic safety in DOT assisted construction projects (specifically, 49 C.F.R.
§41.117), and with any implementing guidelines FTA may issue.
Section 17. Employee Protections
A. Construction Activities. The Subrecipient agrees to comply, and assures the compliance
of each contractor to any tier, with the following employee protection requirements for
construction employees:
1. Davis -Bacon Act, as amended, 40 U.S.C. §276a - 276a(7), FTA's enabling
legislation requiring compliance with the Davis -Bacon Act, at 49 U.S.C. §5333(a),
and U.S. DOL regulations, "Labor Standards Provisions Applicable to Contracts
Governing Federally Financed and Assisted Construction (also Labor Standards
Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work
Hours and Safety Standards Act)," 29 C.F.R. Part 5;
2, Contract Work Hours and Safety Standards Act, as amended, particularly with
the requirements of section 102 of the Act, 40 U.S.C. §327 - 332; and U.S. DOL
regulations, "Labor Standards Provisions Applicable to Contracts Governing
Federally Financed and Assisted Construction (also Labor Standards Provisions
Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and
Safety Standards Act)," 29 C.F.R. Part 5; and with section 107 of the Act, 40
U.S.C. §333, and U.S. DOL regulations, "Safety and Health Regulations for
Construction," 29 C.F.R. Part 1926; and
3. Copeland "Anti -Kickback" Act, as amended, 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.
B. Activities Not Involving Construction. The Subrecipient agrees to comply, and assures the
compliance of contractors at any tier, with any applicable employee protection
requirements for nonconstruction employees of section 102 of the Contract Work Hours
and Safety Standards Act, as amended, 40 U.S.C. §327 - 332, and U.S. DOL regulations,
"Labor Standards Provisions Applicable to Contracts Governing Federally Financed and
Assisted Construction (also Labor Standards Provisions Applicable to Nonconstruction
Contracts Subject to the Contract Work Hours and Safety Standards Act)," 29 C.F.R. Part
5.
C. State and Local Government Employees. The Subrecipient agrees that the minimum
wage and overtime provisions of the Fair Labor Standards Act, as amended, 29 U.S.C.
§206 and 207, apply to employees performing Project work involving commerce, and
apply to any State or local government employees that are public transit authority
employees. Thus, the Subrecipient, agrees to comply with the Fair Labor Standards
Act's minimum wage and overtime requirements for employees performing Project work.
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D. Transit Employee Protective Arrangements. If transit employee protective arrangements
required by U.S. DOL apply to transit operations performed in connection with the
Project, the Subrecipient agrees to comply with the applicable requirements for its
Project as follows:
1. Standard Transit Employee Protective Arrangements. To the extent that the
Project involves transit operations, the Subrecipient agrees to implement the
Project in compliance with terms and conditions the U.S. Secretary of Labor has
determined to be fair and equitable to protect the interests of any employees
affected by the Project and that meet the requirements of 49 U.S.C. §5333(b),
and of 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 Subrecipient agrees to implement the Project in compliance with the
conditions stated in that U.S. DOL certification. That U.S. DOL certification and
any documents cited therein are incorporated by reference. The requirements of
this paragraph do not apply to Projects for the elderly and persons with
disabilities that are authorized by 49 U.S.C. §5310(a)(2) or to Projects for
nonurbanized areas that are authorized by 49 U.S.C. §5311; separate
requirements for those Projects are contained in Subsections 17.D(2) and
17.D(3) of this Agreement.
2. Transit Employee Protective Arrangements for Projects for Elderly and Persons
with Disabilities Authorized by 49 U.S.C. §5310(a)(2). To the extent that the U.S.
Secretary of Transportation has determined or determines in the future that
employee protective arrangements required by 49 U.S.C. §5333(b) are
necessary or appropriate for a public body Subrecipient under the Project, the
Subrecipient agrees to carry out the Project in compliance with the terms and
conditions determined by the Secretary of Labor necessary to meet the
requirements of 49 U.S.C. §5333(b), and the U.S. DOL guidelines, "Section
5333(b), Federal Transit Law," at 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 Subrecipient agrees to
implement the Project in compliance with the conditions stated in that U.S. DOL
certification. That U.S. DOL certification and any documents cited therein are
incorporated by reference and made part of this Agreement.
3. Transit Employee Protective Arrangements for Projects in Nonurbanized Areas
Authorized by 49 U.S.C. §5311. The Subrecipient agrees to comply with the
terms and conditions of the Special Warranty for the Nonurbanized Area
Program agreed to by the Secretaries of Transportation and Labor, dated May
31, 1979, U.S. DOL implementing procedures, and any revisions thereto.
Section 18. Environmental Requirements
The Subrecipient recognizes that many federal and state laws imposing environmental and
resource conservation requirements may apply to the Project. Some, but not all, of the major
federal laws that may affect the Project include: the National Environmental Policy Act of 1969,
as amended, 42 U.S.C. §4321 et seq.; the Clean Air Act, as amended, 42 U.S.C. §7401 et seq.
and scattered sections of 29 U.S.C.; the Federal Water Pollution Control Act, as amended, 33
U.S.C. §1251 et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
§6901 et seq.; and the Comprehensive Environmental Response, Compensation, and Liability
Act, as amended, 42 U.S.C. §9601 et seq. The Subrecipient also recognizes that U.S. EPA,
FHWA and other federal agencies have issued, and in the future are expected to issue,
regulations, guidelines, standards, orders, directives, or other requirements that may affect the
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Project. Thus, the Subrecipient agrees to comply, and assures the compliance of each
Subrecipient and each contractor, with any such federal requirements as the federal
government may now or in the future promulgate. Listed below are requirements of particular
concern to FTA and the Recipient. The Subrecipient agrees that those laws and regulations do
not constitute the Recipient's entire obligation to meet all federal environmental and resource
conservation requirements.
A. Use of Public Lands. The Subrecipient agrees that no publicly owned land from a park,
recreation area, or wildlife or waterfowl refuge of national, State, or local significance as
determined by the federal, state, or local officials having jurisdiction thereof, or any land
from a historic site of national, state, or local significance may be used for the Project
unless FTA makes the specific findings required by 49 U.S.C. §303.
B. Coastal Zone Management. The Subrecipient agrees to assure Project consistency with
the approved State management program developed under the Coastal Zone
Management Act of 1972, as amended, 16 U.S.C. §1451 et seq.
C. Environmental Justice. The Subrecipient 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.
Section 19. Energy Conservation
The Subrecipient 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.
Section 20. State Management and Monitoring Systems
The Subrecipient agrees to comply with applicable requirements of joint FHWA/FTA regulations,
"Management and Monitoring Systems," 23 C.F.R. Parts 500 and 49 C.F.R. Part 614, to the
extent applicable.
Section 21. Privacy Act
Contracts Involving Federal Privacy Act Requirements. The following requirements apply to the
Subrecipient and its employees that administer any system of records on behalf of the federal
government under any contract:
(1) The Subrecipient 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 Subrecipient agrees to obtain the express consent of
the federal government before the Subrecipient or its employees operate a system of records on
behalf of the federal government. The Subrecipient 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 Subrecipient 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.
Section 22. Not Applicable
Section 23. Metric System
As required by U.S. DOT or FTA, the Subrecipient agrees to use the metric system of
measurement in its Project activities, pursuant to the Metric Conversion Act, as amended by the
Omnibus Trade and Competitiveness Act, 15 U.S.C. §205a et seq.; Executive Order No. 12770,
"Metric Usage in Federal Government Programs," 15 U.S.C. §205a note; and other U.S. DOT or
FTA regulations, guidelines, and policies. To the extent practicable and feasible, the
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Subrecipient agrees to accept products and services with dimensions expressed in the metric
system of measurement.
Section 24. Substance Abuse
A. The Subrecipient agrees to comply with U.S. DOT regulations, "Drug -Free Workplace
Requirements (Grants)," 49 C.F.R. Part 29, Subpart F, as modified by 41 U.S.C. §702 et
seq.
B. The Subrecipient agrees to comply with FTA regulations, "Prevention of Alcohol Misuse
and Prohibited Drug Use in Transit Operations," 49 C.F.R. Part 655, including
subsequent FTA regulations when promulgated, and any guidance on the drug abuse
provisions of 49 U.S.C. §5331 that FTA or U.S. DOT may issue.
Section 25. State Safety Oversight of Rail Fixed Guideway Public Systems
To the extent applicable, the Subrecipient agrees to comply with 49 U.S.C. §5330, and FTA
regulations, "Rail Fixed Guideway Systems; State Safety Oversight," 49 C.F.R. Part 659, and
any guidance that FTA or U.S. DOT may issue to implement 49 U.S.C. §5330.
Section 26. Seat Belt Use
Pursuant to Executive Order No. 13043, April 16, 1997, 23 U.S.C. §402, the Subrecipient is
encouraged to adopt on-the-job seat belt use policies and programs for its employees when
operating company -owned, rented, or personally -operated vehicles and include this provision in
third party contracts, entered into under this Project.
Section 27. Special Requirements for Urbanized Area Formula Projects
The following requirements apply to all Projects financed with federal assistance authorized for
49 U.S.C. §5307:
A. Fares and Services. Before raising fares or instituting a major reduction of service, the
Subrecipient agrees to use its established administrative process to solicit and consider
public comment.
B. Audit Requirements. The Subrecipient agrees that the state or federal government may
conduct or require the Subrecipient to engage an independent entity to conduct annual
or more frequent reviews and audits required by 49 U.S.C. §5307(i) and applicable
regulations or guidelines that the federal government may issue.
C. Half -Fare Requirements. The Subrecipient agrees that the fares or rates charged the
elderly and persons with disabilities during nonpeak hours for transportation using or
involving Project facilities and equipment will not exceed one-half of the rates that
generally apply to other persons at peak hours, whether the operation of such facilities
and equipment is by the Subrecipient or another entity under lease or otherwise. The
Subrecipient agrees to give the rate required herein to any person presenting a
Medicare card duly issued to that individual pursuant to Title II or Title XVIII of the Social
Security Act, 42 U.S.C. §401 et seq., and 42 U.S.C. §1395 et. seq.
D. Procurement of an Associated Capital Maintenance Product. In accordance with the
terms of 49 U.S.C. §5326(d), the Subrecipient may, without prior federal approval,
procure an eligible associated capital maintenance product by contract directly with the
original supplier or manufacturer of the item to be replaced, provided that the Recipient:
(1) first certifies in writing that such manufacturer or supplier is the only source of that
item and the price of that item is no higher than the price paid for that item by like
customers, and (2) complies with applicable Buy America statutory and regulatory
requirements.
E. Transit Security. Each fiscal year, the Subrecipient agrees to spend at least one (1)
percent of its funds authorized by 49 U.S.C. §5307 for transit security Projects, unless
the Subrecipient has certified to FTA that such expenditures are not necessary.
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F. Restrictions on the Use of Formula Assistance for Operations. A Subrecipient permitted
to use federal assistance authorized for 49 U.S.C. §5307 to support operations agrees
as follows:
1. To comply with the restrictions of 49 U.S.C. §5307(b)(1) and 5307(f) in using
urbanized area formula funds for operating assistance, unless permitted
otherwise by FTA.
2. Financial assistance authorized by 49 U.S.C. §5307 may be applied to the Net
Project Cost of the Subrecipient's operating expenses incurred during the Project
time period set forth in the Project Budget and, with FTA approval, may be
extended to a later date to the extent permitted by law, provided that the
applicable operating assistance limitation is not exceeded.
G. Reporting Requirements. For each fiscal year, the Subrecipient agrees to conform, and
assures that any transit operator to which the Subrecipient provides funds authorized by
49 U.S.C. §5307 will conform, to the reporting system and the uniform system of
accounts and records required by 49 U.S.C. §5335(a) for FTA's national transit database
and FTA regulations, "Uniform System of Accounts and Records and Reporting
System," 49 C.F.R. Part 630, which includes various reports required for FTA's national
transit database.
H. Criminal Sanctions. The criminal sanctions of 49 U.S.C. §1001 apply to any submission
or certificate provided for the Urbanized Area Formula Program authorized by 49 U.S.C.
§5307.
Section 28. Not Applicable
Section 29. Special Requirements for Job Access and Reverse Commute Grant
Projects
The Subrecipient agrees to comply with following requirements in administering Projects
financed with federal assistance authorized for section 3037 of TEA-21, 49 U.S.C. §5309 note:
A. General Requirements. The Subrecipient agrees to comply with any applicable federal
requirements or guidance that may be issued to implement the Job Access and Reverse
Commute Grant Program, authorized by section 3037 of TEA 21, 49 U.S.C. §5309 note.
B. Restrictions on the Use of Grant Funds. The Subrecipient agrees that it will not use any
grant funds awarded for Section 3037 Projects to support the costs of planning or
coordination activities, in compliance with section 3037(e) of TEA-21, 49 U.S.C. §5309
note.
Section 30. Special Requirements for Over -the -Road Bus Accessibility Projects
The Subrecipient agrees to comply with following requirements in administering Projects
financed with federal assistance authorized for section 3038 of TEA-21, 49 U.S.C. §5310 note:
A. General Requirements. The Subrecipient agrees to comply with any applicable federal
requirements or guidance that may be issued to implement the Over -the -Road Bus
Accessibility Program authorized by section 3038 of TEA-21, 49 U.S.C. §5310.
B. Special Requirements. The Subrecipient agrees to comply with U.S. DOT regulations,
"Transportation Services for Individuals with Disabilities (ADA)," 49 C.F.R. Part 37,
Subpart H, "Over -the -Road Buses," and 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 1192 and 49
C.F.R. Part 38.
C. FTA Notice. The provisions of FTA Notice, "Over -the -Road Bus Accessibility Program
Grants," 65 Fed. Reg. 2772-2786 (January 18, 2000), and any subsequent revision
thereto, supersede conflicting provisions of this Agreement.
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Section 31. Disputes, Breaches, Defaults, or Other Litigation
The Subrecipient agrees that the State and FTA has a vested interest in the settlement of any
dispute, breach, default, or litigation involving the Project. Accordingly:
A. Notification. The Subrecipient agrees to notify the State of any current or prospective
major dispute, breach, default, or litigation that may affect the state or federal
government's interests in the Project or the administration or enforcement of laws or
regulations. If the Subrecipient seeks to name the state or the federal government as a
party to litigation for any reason, in any forum, the Subrecipient agrees to inform the
state before doing so.
B. Federal Interest in Recovery. The Federal Government retains the right to a
proportionate share, based on the percentage of the federal share awarded for the
Project, of proceeds derived from any third party recovery, except that the Subrecipient
may return any liquidated damages recovered to its Project Account in lieu of returning
the federal share to the federal government.
C. Enforcement. The Subrecipient agrees to pursue all legal rights within any third party
contract.
D. State and FTA Concurrence. The State and FTA reserve the right to concur in any
compromise or settlement of any claim involving the Project and the Subrecipient.
E. Termination for Convenience.
1. General Provision. The Recipient may terminate this contract, in whole or in part,
at any time by written notice to the Subrecipient when it is in the Government's
best interest. The Subrecipient shall be paid its costs, including contract close-
out costs, and profit on work performed up to the time of termination. The
Subrecipient shall promptly submit its termination claim to Recipient to be paid
the Subrecipient. If the Subrecipient has any property in its possession belonging
to the Recipient, the Subrecipient will account for the same, and dispose of it in
the manner the Recipient directs.
2. Professional or Transit Service Contracts. The Recipient, by written notice, may
terminate this contract, in whole or in part, when it is in the Government's
interest. If this contract is terminated, the Recipient shall be liable only for
payment under the payment provisions of this contract for services rendered
before the effective date of termination.
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Texas Department of Transportation
135 SLATON ROAD • LUBBOCK, TEXAS 794080711 * (806) 745-4411
September 5, 2006
Mr. John L. Wilson
General Manger
Citibus
P.O. Box 2000
Lubbock, Texas 79457
Re: City of Lubbock / Citibus
Master Grant Agreement No. 517XXF7054
Dear Mr. Wilson:
Please find enclosed a copy of the City of Lubbock/Citibus' Master Grant Agreement
No. 517XXF7054 for your files.
The Lubbock District is no longer in a position to send Citibus two (2) originals for your
files. To request additional originals please contact the Public Transportation Division
in Austin.
Sincerely,
Lynn O. Castle
Public Transportation Coordinator
Enclosure
CITY OF LUBBOCK
AGENDA ITEM SUMMARY
II. CONSENT AGENDA
ITEM #/SUBJECT:
# Consider a resolution authorizing the Mayor to execute a Master Grant Agreement
between the City and the Texas Department of Transportation of Austin, Texas, and
any other related documents.
BACKGROUND DISCUSSION:
In an effort to streamline the grant application process, the Texas Department of Transportation
has developed a Master Grant Agreement that will be used for all TxDOT grants that are
executed each year. This Agreement will be included with all grant applications that are
submitted to TxDOT during the upcoming fiscal year.
FISCAL IMPACT:
This will result in no additional cost to the City of Lubbock.
SUMMARY/RECOMMENDATION:
Citibus recommends approval of the resolution giving approval of the Master Grant
Agreement.