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HomeMy WebLinkAboutRES 98-224 RESOLUTION NO. ?f- BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager is hereby authorized to execute a contract with the Texas Department of Transportation to receive $322,569.00 in grant assistance from the State Public Transportation Fund (PTF) to help pay up to 50% of the City's share of FY 1999 operating expenses for the Beaumont Municipal Transit System. The contract is substantially in the form attached hereto as Exhibit "A" PASSED BY THE CITY COUNCIL of the City of Beaumont this the A5,-M day of 1998. - Mayor - RECIPIENT:The City of Beaumont PUBLIC TRANSPORTATION'(SECTION 5307) GRANT AGREEMENT GRANT AGREEMENT NO. 51920E 1007 STATE PROJECT NO. URB 9901 (20) STATE URBAN PUBLIC TRaNSPORTATIO\' GRANT AGREEit1ENT THE STATE OF TEYCAS § THE COUNTY OF TRAVIS § THIS GRANT AGREEMENT is made by and between the State of Texas, acting through the Texas Department of Transportation, hereinafter called the "State," and The City of Beaumont, hereinafter called the "RECIPIENT." WITNESSETH «'HEREAS, the Governor of the State of Texas has designated the Texas Departt;letlt of Transportation (State) to administer a statewide Public Transportation Grant Prograr,1, and to provide state funds to match federal funds; and, NN"HEREAS, Ti-anspor-tatiar Code, Chapter 455, authorizes the State to assist the Recipient in procuring aid for the purpose of establishing and maintaining public and mass transportation projects and to administer funds appropriated for public transportation under Ti-ansao3-tatiojr Code, Chapter 456; and, NVHEREAS, the Recipient has submitted an application for financial assistance for a urban public transportation project generally including training, technical assistance, research, or support services related to public transportation in urbanized areas, and the State approved the application, and, NOW, THEREFORE, in consideration of the premises and of the mutual covenants hereinafter set forth, the State and the Recipient hereto agree as follows. -------- ._. .-- -- AGREEMENT ARTICLE I. GRANT PERIOD This Grant Agreement becomes effective on September 1, 1998 or when executed by the State's District Engineer, whichever is later, and shall terminate on August 31,1999 unless terminated or otherwise modified as hereinafter provided. ARTICLE 2. PROJECT DESCRIPTION The Recipient shall commence, carry out and complete a public transportation project described in Attachment A, Project Description, with all practicable dispatch, in a sound, economical and EXHIBIT "A" ARTICLE 2. PROJECT DESCRIPTION (cont.) efficient manner in accordance with the provisions of Attachment A, Project Description, this Grant Agreement, federal and state law, and federal and state regulation as hereinafter referenced. ARTICLE 3. COMPENSATION A. The maximum amount payable under this Grant Agreement without modification is 5322,569.00 provided that expenditures are made in accordance with the amounts and for the purposes authorized in Attachment B, Estimated Project Budget. B. The State's reimbursement to the Recipient is contingent upon the availability of appropriated fiends. The State shall have no liability for any claim submitted by the Recipient or its subcontractors, vendors, manufacturers or suppliers if sufficient state or federal funds are not available to pay the Recipient's claims. C. To be eligible for reimbursement under this Grant Agreement, a cost must be incurred within the Grant Agreement period specified in Article 1, Grant Period, and be authorized in Attachment B, Estimated Project Budget. D. Reimbursement of costs incurred under this Grant Agreement is further governed by cost principles outlined in applicable Federal Office of Management and Budget (OMB) publications as follows: OIIB Circular A-21, Cost Principles for Educational Institutions OMB Circular A-87, Cost Principles for State and Local Governments OMB Circular A-122, Cost Principles for Nonprofit Organizations E. Costs claimed by the Recipient shall be actual net costs, that is, the price paid minus any refunds, rebates or other items of value received by the Recipient that have the effect of reducing the cost actually incurred. F. The Recipient may submit requests for reimbursement to the State no more frequently than monthly using invoice statements acceptable to the State. Requests for reimbursement must be . furnished to the State within forty-five (45) days of the end of the month during which the costs wereincurred. Additional documentation to support any cost incurred during the billing period may be required at the discretion of the State. At 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. --- G. The original and one copy of the invoice is to be submitted to the following address: IYalter Crook, P.E. District Engineer Texas Department of Transportation 8350 Eastex Freeway Beaumont, Texas 77708 H. The State will make payment within thirty (30) days of the receipt of properly prepared requests for reimbursement. 2 ARTICLE 3. COMPENSATION (coat.) I. The Recipient will submit a final billing within forty-five (45) days of the completion or termination of the Grant Agreement in accordance with Article 1, Grant Period. J. The Recipient shall make payments promptly to all subcontractors and suppliers. Failure to do so will be grounds for termination of this Grant Agreement by the State. The State shall not be responsible for the debts of the Recipient. ARTICLE 4. AMENDMENTS Except as noted below, changes in the scope, objectives, cost or duration of the project authorized herein shall be enacted by written amendment approved by the parties hereto before additional work may be performed or additional costs incurred. Any amendment so approved must be executed by both parties within the grant period specified in Article 1, Grant Period. The Recipient 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 fiends; and, 2. Does not exceed ten percent of the current total approved budget and the federal and state funding exceeds S 100,000; and, 3. Does not involve a transfer of funds from an authorized capital equipment purchase to another category; and 4. Does not involve a transfer of fiends from training to another expense category; and 5. Does not involve a transfer of funds from constriction to a non-constriction category; 6. Does not involve a transfer of fiends from a direct to indirect cost category. If a proposed revision meets all of the criteria listed above, the Recipient 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 5. SUBCONTRACTS The Recipient shall not enter into any subcontract with individuals or organizations to provide professional services without prior authorization and consent to the subcontract by the State. Subcontracts in excess of$25,000 shall contain all required provisions of this Grant Agreement. No subcontract will relieve the Recipient of its responsibility under this Grant Agreement. The Recipient shall not enter into any agreement for the purchase of equipment without prior authorization and consent to the purchase agreement by the State. ARTICLE 6. RETENTION OF RECORDS A. The Recipient agrees to maintain all documents, reports, papers, accounting records, and other evidence pertaining to costs incurred under this agreement (the Records) at its office during the grant period and for four years from the date of final payment under the grant. Such records shall be made available during the specified period for inspection by the State, the U.S. 3 ARTICLE 6. RETENTION OF RECORDS (coat.) Department of Transportation, the Office of the Inspector General, and any of their authorized representatives for the purpose of making audits, examinations, excerpts, and transcriptions. Records for nonexpendable property acquired with Federal or State funds shall be retained for four years after final disposition of the property. B. If any litigation, claim or audit is started before the expiration of the four year retention period, the Records shall be retained until all litigation, claim or audit finding involving the Records have been resolved. C. When records are transferred to or maintained by the federal or state sponsoring agency, the four year retention requirement is not applicable to the Recipient. D. The Recipient further agrees to include these provisions in each subcontract. ARTICLE 7. SINGLE AUDIT REQUIREIIENTS Recipient audit procedures shall meet or exceed the single audit requirements outlined in Office of Management and Budget (OMB) publications as follows: Audits of State and Local Government OMB Circular A-128 Audits of Institutions of Higher Education and other Nonprofit Institutions OMB Circular A-133 ARTICLE 8. FINANCIAL 'NIANAGE`IENT SYSTEM The Recipient's financial management system shall meet or exceed the requirements of the "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments" (49 CFR Part 18.20). Those requirements include, but are not limited to: A. Accurate, current and complete disclosure of the financial results of each grant program in accordance with State and Federal reporting requirements. B. Records which adequately identify the source and application of funds for grant-supported activities. These records shall contain information pertaining to grant awards and authorization, obligations, commitments, assets, liabilities, outlays and income. C. Effective control over and accountability for all funds, property and other assets. The Recipient shall adequately safeguard all such assets and shall assure that they are used solely for authorized purposes. D. Comparison of actual with budgeted amounts for each Grant Agreement, and relation of financial information to performance or productivity data, including the production of unit cost information, whenever appropriate and required by the State. E. Procedures for determining the eligibility for reimbursement and proper allocation of costs. F. Accounting records which are supported by source documentation. G. A systematic method to assure timely and appropriate resolution of audit findings and recommendations. 4 ARTICLE 9. PROCUREIVIENT STANDARDS Recipient procurement standards shall meet or exceed the requirements of the "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments" (49 CFR Part 18.36), 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 Recipient'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 subcontractors 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 Recipient shall participate in selection or in the award or administration of a contract supported by state or federal fiends 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 Recipient integrity, compliance with public policy, record of past performance, and financial and technical resources. H. Records sufficient to detail the significant history of a procurement, including rationale for the method of procurement, selection of contract type, Recipient selection or rejection, and the basis for the contract price. I. Limited use of time-and-materials contracts. J. Use of good administrative practice 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. 5 ARTICLE 10. REAL PROPERTY MANAGEMENT The Recipient will comply with management standards set forth in the "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments" (49 CFR Part 18.31) in the acquisition, use, and disposition of real property acquired under the grant. The State must concur in the award of all purchase orders for nonexpendable personal property as defined in 49 CFR Part 18.31. ARTICLE 11. EQUIPMENT iVIANAGE- LENT A. The Recipient will comply with State management standards and with management standards specified in the "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments" (49 CFR Part 18.32) in the control, use, and disposition of equipment acquired under this grant. Management standards include: 1. Maintain 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. 2. Conduct a physical inventory of the equipment at least once every two years and reconcile the inventory with equipment records described in the preceding paragraph. 3. Develop a control system to ensure adequate safeguards to prevent loss, damage, or theft of the equipment. Any loss, damage, or theft shall be investigated. 4. Develop and follow procedures to keep the equipment maintained and in good condition. At a minimum, the Recipient 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. 5. Request disposition instructions from the State, and if authorized to sell the equipment, use proper sales procedures to insure the highest possible return. B. The Recipient will comply with Title 43, Texas Adniinistf•ative Code, 531.53, tQ 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 Recipient shall immediately notify the State. The State -_ reserves the right to direct the sale or transfer of property acquired-under this Grant Agreement upon determination by the State that said property has not been fully or properly used. D. When original or replacement equipment acquired under a grant is no longer needed for the original project or program or for other activities currently or previously supported by a federal or state agency, the Recipient shall contact the State to request authority to dispose of the equipment, and the State shall issue disposition instructions in accordance with 49 CFR 18.32. 6 ARTICLE 11. EQUIPMENT MANAGEi\IENT (cont.) E. All vehicles purchased under this Grant Agreement shall comply with the Motor Vehicle Safety Standards established by the U.S. Department of Transportation. F. All vehicles purchased under this Grant Agreement shall comply with all federal motor vehicle anti-pollution requirements. G. All vehicles purchased under this Grant Agreement shall comply with the bus testing requirements set forth at 49 USC 5323(c) and 49 CFR 665. H. The Recipient shall not execute any lease, pledge, mortgage, lien or other contract touching or affecting the Federal or State interest in any project facility or equipment; nor shall the Recipient by any act or omission of any kind adversely affect the Federal or State interest or impair its continuing control over the use of project facilities or equipment. I. The Recipient shall comply with requirements set forth at 49 USC 5323(1) and 49 CFR 663 regarding pre-award and post-delivery audit requirements. ARTICLE 12. VEHICLE INSURANCE REQUIR.Ei1IENTS (Revised 12/15/97) A. The Recipient/Subrecipient shall maintain the insurance coverage specified below during the entire life of the vehicle and shall furnish proof of insurance to the State using a certificate of insurance acceptable to the State. • If a vehicle is required to be registered as a commercial motor vehicle under the Provisions of the lllotor Carrier Registration Act (Transportation Code Chapter 643), the vehicle !lust be insured at the fol101vi".- m1111nium levels required under Title 43 of the Ta as Administrative Code§18.16: Buses designed to transport more than 15 passengers (including the driver) but less than 26 passengers (not including the driver): Bodily Injury and Property Damage - S500,000 per occurrence (Combined Single Limits are acceptable.) Buses designed to transport 26 passengers or more (not including the driver): Bodily Injury and Property Damage - S5,000,000 per occurrence (Combined Single Limits are acceptable.) • If a vehicle is exenipt from the provisions of the Motor Carrier Registration Act, and the Recipient/Subrecipient is not a governmental entity as defined by the Texas Tort Claims Act, the vehicle must be insured at the following minim1111I levels:** Minimum coverage: Vehicles designed to transport under 15 passengers (including the driver): Bodily Injury and Property Damage - S500,000 per occurrence (Combined Single Limits are acceptable.) Vehicles designed to transport 15 or more Limits are acceptable.) (including the driver): Bodily Injury and Property Damage - S1,000,000 per occurrence (Combined Single 7 ARTICLE 12. VEHICLE INSURANCE REQUIREMENTS (Revised 2/15/97)(cont.) If the Recipient/Sitbrecipient is a governmental entity as defined by the Te-as Tort Claims Act, the vehicle must be insured at the following rninitnum levels established by the Te_vas Tort Claims Act(Civ. Prac. & Rent. Code§101.023).** State Agencies and Municipalities: Bodily Injury or Death- 5250,000 each person/5500,000 each single occurrence Injury to or Destruction of Property - S 100,000 each single occurrence Counties or Other Local Governments: Bodily Injury or Death - 5100,000 each persoi-dS300,000 each single occurrence Injury to or Destruction of Property - S 100,000 **Exemptions from the Motor Carrier Act and/or exemptions by terms of the Texas Tort Claims Act must be provided in writing to the Texas Department of Transportation as to the claim of exemption. Texas Business Automobile Policy - Basic automobile liability is not an acceptable substitute for a Texas Business Automobile Policy or Comprehensive Automobile Liability insurance. This insurance is to be endorsed with the State as an Additional Insured and endorsed with a Waiver of Subrogation in favor of the State. B. The Recipient/Subrecipient shall furnish comprehensive insurance coverage in an amount equal to i is replacement cost of the vehicle. C. 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. D. In the event of loss due to casualty or fire, straight line depreciation of the asset, based on the industry standard for a useful life, shall be considered fair market value unless otherwise approved by the State. E. The Recipient/Subrecipient shall notify the State immediately of theft, wreck,.vandalism or other destruction of project-related facilities or equipment. ARTICLE 13. BUY AMERICA The Recipient agrees to comply with applicable Buy America requirements set forth in 49 U.S.C. 53230) and 49 CFR Part 661. ARTICLE 14. CARGO PREFERENCE The Recipient will comply with the cargo preference requirements set forth in 46 U.S.C. 1241 and Maritime Administration regulations set forth in 46 CFR Part 381. ARTICLE 15. COORDINATION The Recipient will at all times coordinate the provision of public transportation services with other transportation operators, both public and private, in the area. The Recipient will fiurnish the 8 ARTICLE 15. COORDINATION (cont.) State copies of any agreement resulting from such coordination. Agreements which authorize the payment of project funds to another entity are subject to the approval requirements described in Article 5, Subcontracts. ARTICLE 16. LABOR PROTECTION PROVISIONS A. The Recipient agrees to undertake, carry out and complete the project under the terms and conditions determined by the Secretary of the United States Department of Labor to be fair and equitable to protect the interests of employees affected by the project and meeting the requirements of 49 U.S.C. 5333(b). The Recipient shall maintain documentation of compliance efforts in accordance with retention and accessibility requirements set forth in Article 6, Retention of Records. B. The Recipient agrees to the comply with applicable transit employee protective requirements as required under the Transit Employee Protective Agreements as set forth under 49 U.S.C.§5310, §5311, and §5333 and 29 CFR Part 215. ARTICLE 17. CHARTER AND SCHOOL BUS OPERATIONS A. Neither the Recipient nor any subcontractor acting on its behalf shall engage in charter bus operations outside of the geographic area within which it provides regularly scheduled public transportation service, except as provided under 49 CFR Part 604.9, and regulations pertaining to Charter Service Operations set forth at 49 U.S.C. 5323(d) and 49 CFR Part 604. The Recipient shall furnish a copy of any agreement entered into under these regulations to the State no later than seven working days after the agreement is signed. B. Neither the Recipient nor any subcontractor acting on its behalf shall engage in school bus operations exclusively for the transportation of students or school personnel in competition with private school bus operators, except as provided tinder 49 U.S.C. 5323(f) and 49 CFR Part 605. The Recipient shall furnish any agreement entered into under these regulations to the State no later than seven working days after the agreement is signed. ARTICLE 18. 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 Recipient and its contractors to verify the extent of services provided under the terms of the Grant Agreement. Representatives of the State or Federal government shall have access to project facilities and records at all reasonable times. y C. The State and the U.S. Department of Transportation, and any authorized representative thereof, have the right at all reasonable times to inspect or otherwise evaluate the progress of the grant hereunder and the project premises. D. If any inspection or evaluation is made on the premises of the Recipient or a subcontractor, the Recipient shall provide and require the subcontractor to provide all reasonable facilities and 9 ARTICLE 18. MONITORING (cont.) assistance for the safety and convenience of the inspectors in the performance of their duties. All inspections and evaluations shall be performed in such a manner as will not unduly delay the project. ARTICLE 19. REPORTS A. The Recipient shall submit written or electronic reports at intervals and in a fonnat prescribed by the State. 1. Quarterly Operating Report - No later than 15 working days after the end of the quarter for which the report is made, the Recipient shall submit an activity report to the State. At a minimum, the quarterly operating report will include the number of vehicles in operation; total one-way passenger trips; total miles traveled; total expenses, including administrative and operating expenses; revenue, including fares and donations, operating cost per vehicle mile; operating cost per passenger trip; and number of passengers per mile traveled. The State may require more frequent operating reports for reasons of its own, or if the Recipient 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 Recipient shall submit a quarterly report consisting of a brief narrative including but not limited to procurement milestones, including date of purchase order, vendor name and location, and estimated delivery date. 3. Status of Constriction - If the grant includes constriction, the Recipient shall submit quarterly narrative reports which include but are not limited to the progress of constriction. B. Regardless of the type of assistance included in the grant, the Recipient shall promptly advise the State in writing if at any time the progress of the project will be negatively or positively impacted, including: C. Problems, delays or adverse conditions that will materially affect the Recipient's.ability to attain program objectives, prevent the meeting of time schedules and goals, or preclude the attaiiu:ner+t of project work units by established time periods. This disclosure shall be accompanied by a statement of the action taken, or contemplated, by the Recipient and any State assistance needed to resolve the situation. D. Favorable developments or events that will enable the Recipient to meet time schedules and goals sooner than anticipated or produce more work units than originally projected. E. Every two years, or more frequently when instructed by the State, the Recipient shall conduct a physical inventory of grant-supported property as set forth in Article 11, Equipment Management, and furnish the State a copy of the inventory F. The Recipient shall develop performance goals and management objectives in accordance with Title 43, Texas Administrative Code, §31.36. 10 ARTICLE 19. REPORTS (cont.) G. The Recipient shall maintain written maintenance records for each grant-supported vehicle, and shall make such records available to the State upon request. As a minimum, the Recipient shall comply with the manufacturer's recommended maintenance schedule. ARTICLE 20. DISPUTES AND REMEDIES A. The Recipient 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 settled in accordance with Title 43, Texas Administf•ative 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 21. TERMINATION A. The State may terminate this Grant Agreement at any time before the date of completion whenever it is determined that the Recipient has failed to comply with the conditions of the Grant Agreement. The State shall give written notice to the Recipient at least thirty days prior to the effective date of termination and specify the effective date of termination, the reason for the termination, and other termination instructions. B. If both parties to this Grant Agreement agree that the continuation of the Grant would not produce beneficial results commensurate with the further expenditure of funds, the parties shall agree upon the tenmination conditions, including the effective date. In the event that both parties agree that resumption of the grant is warranted, a new Grant Agreement must be developed and executed by both parties. C. Either the State or the Recipient may terminate this agreement by giving 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 Recipient shall be subject to additional liability except as otherwise provided in this agreement. D. Upon termination of this Grant Agreement, whether for cause or at the convenience of the parties-hereto, title to all property and equipment remains with the Recipient subject to the obligations and conditions set forth in this Grant Agreement and 49 CFR 18.31 and 18.32, unless the state or federal funding agency issue disposition instructions to the contrary. E. In the event of termination, the State may compensate the Recipient for those eligible expenses incurred during the grant period which are directly attributable to the completed portion of the grant covered by this Grant Agreement, provided that the grant has been completed in accordance with the terms of the Grant Agreement. The Recipient shall not incur new obligations for the terminated portion after the effective date of termination. 11 ARTICLE 21. TERMINATION (cont.) F. Except with respect to defaults of subcontractors, the Recipient shall not be in default by reason of any failure in performance of this Grant Agreement in accordance with its terms (including any failure by the Recipient 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 Recipient. 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 Recipient. ARTICLE 22. NONDISCRIMINATION ON THE BASIS OF DISABILITY The Recipient 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 Recipient shall insure that all fixed facility constriction 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 23 DISADVANTAGED BUSINESS ENTERPRISE PROGRAM REQUIREMENTS It is the policy of the Department of Transportation that Minority Business Enterprises as defined in 49 CFR Part 23 shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal funds. Consequently, the Minority Business Enterprise requirements of 49 CFR Part 23 apply to this Grant Agreement as follows: 1. The Recipient and any subcontractor agrees to insure that Minority Business Enterprises as defined in 49 CFR Part 23 have the maximum opportLlnity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds. In this regard, the Recipient shall take all necessary and reasonable steps in accordance with 49 CFR Part 23 to insure that minority business enterprises have the maximum opportunity to compete for and perform contracts. 2. The Recipient and any subcontractor shall not discriminate on the basis of race, color, national origin or sex in the award and performance of contracts funded in whole or in part with Federal funds. 3. These requirements shall be physically included in any subcontract. The percentage goat for Disadvantaged Business Enterprise participation in the activities to be perfomied under this Grant Agreement is a minimum of 15% of the Grant Agreement dollars 12 ARTICLE 23 DISADVANTAGED BUSINESS ENTERPRISE PROGRAM REQUIREMENTS (coat.) available for contracting opportunities as set forth in 49 CFR Part 23 and amended by Section 106(c) of the Surface Transportation Assistance Act of 1957. Failure to carry out the requirements set forth above shall constitute a breach of contract and, after the notification of the State, may result in termination of the Grant Agreement by the State or other such remedy as the State deems appropriate. ARTICLE 24. EQUAL EMPLOYMENT OPPORTUNITY The Recipient agrees to comply with Executive Order 11246 titled "Equal Employment Opportunity" as amended by Executive Order 11375 and as supplemented in Department of Labor Regulations 41 CFR Part 60. ARTICLE 25. AFFIRNIATIVE ACTION The Recipient warrants that affirmative action programs as required by the rules and regulations of the Secretary of Labor 41 CFR 60-1 and 60-2 have been developed and are on file. ARTICLE 26. CLEAN AIR AND WATER If the Grant Agreement exceeds S 100,000, the Recipient will comply with all applicable standards, orders or requirements issued under Section 306 of the Clean Air Act (42 U.S.C. 7401 et. seq.); Section 508 of the Clean Water Act (3)3 U.S.C. 1365); Executive Order 11738; and Environmental Protection Agency regulations (40 CFR, Part 15). The Recipient further agrees to report violations to the State. ARTICLE 27. ENERGY EFFICIENCY The Recipient will recognize standards and policies relating to energy efficiency which may be contained in a State energy conservation plan issued in compliance with the Energy Policy and Conservation Act (P.L. 94-163). ARTICLE 28. SUBSTANCE ABUSE A. The Recipient agrees to establish and implement a dnrg and alcohol testing program.that complies with 49 CFR Parts 653 and 654, produce any documentation necessary to establish its compliariee with Parts 65') and 654, and permit any authorized representative of the U. S. Department of Transportation or the State to inspect the facilities, testing process, and records associated with the implementation of the drug and alcohol testing program as required under 49 CFR Parts 653 and 654. B. The Recipient will certify compliance with 49 CFR Parts 653 and 654 on or before September 1 of each year, using the certification form furnished by the State. C. The Recipient will submit required Management Information System (MIS) reports on or before Febnrary 15 each year using forms furnished by the State. 13 ARTICLE 29. FEDERAL PRIVACY ACT A. The Recipient will comply with and assures the compliance of its employees with the information restrictions and other applicable requirements of the Privacy Act of 1974, 5 USC §552a. The Recipient will not operate a system of records on behalf of the federal govemment without the express consent of the State and Federal Government . The Recipient understands that the requirements of the Privacy Act, including the civil and criminal penalties for violation of that Act, apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may result in termination of the underlying Grant Agreement. B. The Recipient also agrees to include these requirements in each subcontract to administer any system of records on behalf of the federal government financed in whole or in part with federal assistance provided by FTA. ARTICLE 30. PROHIBITED ACTIVITIES A. Neither the Recipient 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 be admitted to anv share or part of this Grant Agreement or to any benefit arising therefrom. C. No member, officer or employee of the Recipient during his tenure or one year thereafter shall have any interest, direct or indirect, in this Grant Agreement or the proceeds thereof. D. Texas Transportation Commission policy mandates that employees of the Texas Departm:.nt 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 Grant Agreement. The only exceptions allowed are ordinary business lunches and items that ha,:e received the advanced written approval of TxDOT's Executive Director. Any persons doing business with or who may reasonably speaking do business with the State under this Grant Agreement may not make any offer of benefits, gifts or favors to TxDOT employees, except as mentioned here above. Failure on the part of the Recipient to adhere to this policy may result in the termination of this Grant Agreement. E. Theyecipient will comply with Texas Government Code, Chapter 573, by insuring that no officer, employee or member of the Recipient's governing board or of the Recipient'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. This prohibition sha11 not prohibit the employment of a person who shall have been continuously employed for a period of two years prior to the election or appointment of the officer, employee, governing body member related to such person in the prohibited degree. 14 ARTICLE 31. PUBLIC INFORMATION The Recipient will insure that all information collected, assembled or maintained by the applicant relative to this project shall be available to the public during normal business hours in compliance with Texas Government Code, Chapter 552 unless otherwise expressly provided by law. ARTICLE 32. OPEN MEETINGS The Recipient 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 33. INDEMNIFICATION A. To the extent possible by law, the Recipient 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 Recipient or of any person employed by the Recipient. B. To the extent possible by law, the Recipient 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 Recipient, its agents, employees or volunteers. C. To-the extent possible by law, the Recipient agrees to protect, indemnify, and save harmless the State from and against all claims, demands and causes of action of every kind and character brought by any volunteer or employee of the Recipient against the State due to personal injuries and;or death to such employee resulting from any alleged negligent act, by either commission or omission on the part of the Recipient. D. The Recipient 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 Grant Agreement. ARTICLE 34. INTELLECTUAL PROPERTY RIGHTS If any invention, improvement or discovery of the Recipient or any of its subcontractors is conceived or first actually reduced to practice in the course of or under this grant, which invention, improvement or discovery may be patentable under the Patent Laws of the United States of America or any foreign country; and if said invention, improvement or discovery has not already become the property of the State, the Recipient shall immediately notify the State and provide a detailed report. The rights and responsibilities of the State, the Recipient, any subcontractor and the United States Government with respect to such invention will be determined in accordance with applicable laws, regulations, policies and any waivers thereof. Further, the Recipient shall comply with the provisions of 41 CFR, Part 1-9. The State and the U.S. Department of Transportation shall have the royalty-free, non-exclusive and irrevocable right to reproduce, publish or otherwise use, and to authorize others to use the work for government purposes. 15 ARTICLE 35. COMPLIANCE WITH LAWS The Recipient 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, and licensing laws and regulations. When required, the Recipient shall furnish the State with satisfactory proof of compliance therewith ARTICLE 36. NONCOLLUSION The Recipient 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 Recipient breaches or violates this warranty, the State shall 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 frill amount of such fee, commission, brokerage fee, gift, or contingent fee. ARTICLE 37. RESTRICTIONS ON LOBBYING Pursuant to Section 31 U.S.C. 1352, 49 CFR Part 19 and 49 CFR Part 20, Contractors who apply or bid for an award of S 100,000 or more shall file the certification required by 49 CFR Part 20 which generally prohibits Recipients of federal fields from using those monies for lobbying purposes. When applicable, the Recipient Nvill furnish the State the required certification. ARTICLE 38. SUSPENSION AND DEBARttiIENT The terms of the Department of Transportation reaulation, "Suspension and Debarment of Participants in DOT Financial Assistance Programs," set forth in Executive Order 12549 and implemented by 49 CFR Part 29, are applicable to this Grant Agreement. Furthermore, any Recipient employed by the Recipient is also bound by the terms of 49 CFR Part 29 and must complete a Lower Tier Participant Debarment Certification. The Recipient warrants that the debarment certification furnished as part of the application is current and valid. ARTICLE 39. NONDISCRIMINATION The Recipient shall comply with the nondiscrimination provision attached hereto and labeled Attachment C, Nondiscrimination. ARTICLE 40. DELINQUENT TAX CERTIFICATION Pursuant to Article 2.45 of the Business Corporation Act, Texas Civil Statutes, which prohibits the State from awarding a contract to a corporation that is delinquent in paying taxes under Chapter 171, Tax Code, the Recipient hereby certifies that it is not delinquent in its Texas franchise tax payments, or that it is exempt from or not subject to such tax. A false statement concerning the Recipient's franchise tax status shall constitute grounds for cancellation of the Grant Agreement at the sole option of the State. 16 ARTICLE 41. PROGRAM INCOME A. Except for income from royalties and proceeds from the sale of real property or equipment, the Recipient shall retain program income and apply such income to allowable capital or operating expenses. Program income from royalties and proceeds from sale of real property or equipment shall be handled as specified in 49 CFR 18.34 (Copyrights), 49 CFR 18.31 (Real Property) and 49 CFR 18.32 (Equipment). B. The Recipient shall comply with standards governing the receipt and application of program income as set forth in 49 CFR 18.25, Program Income. Program income means gross income received by the Recipient directly generated by a grant supported activity, or earned only as a result of this Grant Agreement during the time period specified in Article 1, Grant 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 Grant Agreement, and from payments of principal and interest oil loans made with grant fiends. Except as otherwise provided in federal regulations, program income does not include grant funds, rebates, credits, discounts, refunds, and the interest earned on any of these receipts. ARTICLE 42. SUCCESSORS AND ASSIGNS The Recipient binds himself, his successors, assigns, executors and administrators in respect to all covenants of this agreement. The Recipient shall not sign, sublet or transfer his interest in this agreement without the written consent of the State. ARTICLE 43. 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 uunenforceability 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 44. CHANGES IN FEDERAL REGULATIONS As a Recipient of federal funds, the Recipient is required to comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the agreement (Form FTA MA (2) dated October, 1995) between Purchaser and FTA , as they may be amended or promulgated from time to time during the term of this Grant Agreement. Recipient's failure to so comply shall constitute a material breach of this Grant Agreement. ARTICLE 45. 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 -rant specifically authorized and funded under this agreement. 17 ARTICLE 46. INCORPORATION OF FEDERAL REQUIREMENTS This Grant Agreement includes terms and conditions required by the U.S. Department of Transportation. All contractual provisions required by the U.S. Department of Transportation, as set forth in FTA Circular 4220.1D, dated April 15, 1996, are hereby incorporated by reference. Notwithstanding anything herein to the contrary and except as provided in State law, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this agreement. The Recipient shall not perform any act, fail to perform any act, or refuse to comply with any State request which would cause the State to be in violation of federal terms and conditions or state law. ARTICLE 47. SPECIAL PROVISIONS FOR CONSTRUCTION AND REPAIR A. Work Hours and Safety Standards The Recipient agrees to comply with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. Part 327-330) as supplemented by Department of Labor regulations (29 CFR, Part 5). B. Copeland "Anti-Kickback" Act The Recipient agrees to comply with the Copeland "Anti-Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR, Part 3). C. Davis-Bacon Act The Recipient agrees to comply with the provisions of the Davis-Bacon Act (40 U.S.C. 276a- 276a-5) as supplemented by Department of Labor regulations (29 CFR, Part 5). D. Relocation and Land Acquisition The terms of the U.S. Department of Transportation regulations "Uniform Relocation and Real Property Acquisition for Federal and Federally Assisted Programs" 49 CFR Part 25 are applicable to this Grant Agreement. E. Insurance and Bonding The Recipient shall comply with insurance and bonding requirements as established in 49 CFR Part 18. F. Signs The Recipient shall cause to be erected at the site of construction, and maintained during constriction, 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. G. Seismic Safety The Recipient agrees that any new building or addition to an existing building will be designed and constructed in accordance with the standards for Seismic Safety required in U.S. Department of Transportation Seismic Safety Regulations 49 CFR Part 41 and will certify to compliance to 18 ARTICLE 47. SPECIAL PROVISIONS FOR CONSTRUCTION AND REPAIR the extent required by the regulation. The Recipient also agrees to ensure that all work performed under this Grant Agreement including work performed by a subcontractor is in compliance with the standards required by the Seismic Safety Regulations and the certification of compliance issued on the project. ARTICLE 48. SIGNATORY WARRANTY The undersigned signatory for the Recipient hereby represents and warrants that he/she is an officer of the organization for which he/she has executed this agreement and that he/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 Certified as being executed for the purpose and effect of activating and/or carrying out the orders, established policies, or work programs heretofore approved and authorized by the Texas Transportation Commission under the authority of Minute Order 107220. By: District Engineer: Walter Crook, P.E. District Beaumont Date: RECIPIENT By: The City of Beaumont Date: Typed or Print Name and Title 19 Attachment A: Project Description BEAUMONT MUNICIPAL TRANSIT FY 99 PROJECT DESCRIPTION The funds applied for will be used for the operating expenses of the Beaumont Municipal Transit System for the period October 1, 1998 through September 30, 1999. This includes the necessary labor, fringe benefits, materials, supplies, purchased services, utilities, insurance, and other miscellaneous expenses to operate and maintain the transit sytern. Attachment B: Project Budget Attachment B: Project Budget State and Local Small Urban Public Transportation Grant Agreement: Effective Date: September 1, 1998 Project Completion Date: August 31, 1999 Recipient: City of Beaumont State Contract Number: 51920F 1007 State Project Number: URB 9901 (20) Apportionment Year: FFY 1999/SFY 1999 Category ALI Code Description TOW State Local Capital No Budgeted Items 50.00 50.00 S0.00 50.00 50.00 S0.00 50.00 50.00 50.00 SO.00 So.00 So.00 So.00 So.00 So.00 Admin 41.12.00 Project Administration S0.00 50.00 50.00 Operating 30.09.00 Operating Assistance 5322,569.00 S322,569.00 S0.00 Subtotals S322,569.00 S322,569.00 S0.00 Scholarship 41.17.00 Other Activities S0.00 S0.00 S0.00 Project Totals 5322,569.00 5322,569.00 $0.00 u:;exce1!5307I3udg 1laximum Reimburseable Amount: 5322,569.00 Page I of 1 Attachment C: Nondiscrimination During the performance of this Grant agreement, the Subrecipient, for itself, its assignees and successors in interest agrees as follows: 1. Compliance with Regulations: The Subrecipient shall comply with the regulations relative to nondiscrimination in federally assisted programs of the U.S. Department of Transportation (hereinafter U.S. DOT) 49 CFR Part 21 and with 23 CFR Part 710.405(b), as they may be amended from time to time (hereinafter referred to as the Regulation), which are herein incorporated by reference and made a part of this grant agreement. 2. Nondiscrimination: The Subrecipient, with regard to the work performed by it during the grant agreement, shall not discriminate on the grounds of race, color, sex, creed , age or national origin in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The Subrecipient shall not participate either directly or indirectly in the discrimination prohibited by section 21.5 of the Regulations, including employment practices when the grant agreement covers a program set forth in Appendix B of the Regulation. 3. Solicitation for Subgrant agreements, Including Procurement of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the Subrecipient for work to be performed under a subcontract, including procurement of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the Subrecipient of the Subrecipient's obligations under this grant agreement and the Regulation relative to nondiscrimination on the grounds of race, color, sex, creed, age or national origin. 4. Information and Reports: The Subrecipient shall provide all information and reports required by the Regulation or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the State or the Federal Transit Administraf-ion (FTA) to be pertinent to ascertain compliance with such Regulation, orders and instnictions. Where any information required of a Subrecipient is in the exclusive possession of another who fails or refuses to furnish this information, the Subrecipient shall so certify to the State, or the Federal Transit Administration, as appropriate, and shall set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance: In the event of the Subrecipient's noncompliance with the nondiscrimination provisions of this grant agreement, the State shall impose such sanctions as it or the Federal Transit Administration may determine to be appropriate, including, but not limited to: (a) Withholding of payments to the Subrecipient under the grant agreement until the Subrecipient complies; and/or (b) Cancellation, termination or suspension of the grant agreement, in whole or in part. 6. Incorporation of Provisions: The Subrecipient shall include the provisions of paragraphs (1) through (6) in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulation, or directives issued pursuant thereto. The Subrecipient shall take such action with respect to any subcontract or procurement as the State or the Federal Transit Administration may direct as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that, in the event a Subrecipient becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the Subrecipient may request the State to enter into such litigation to protect the interests of the State, and, in addition, the Subrecipient may request the United States Department of Transportation to enter into such litigation to protect the interests of the United States. Attachment D: DEBARMENT AND SUSPENSION (NONPROCUREIIENT) 49 CFR Part 29 Executive Order 12549 Applicability to Contracts Executive Order 12549, as implemented by 49 CFR Part 29, prohibits FTA recipients and sub- recipients from contracting for goods and services from organizations that have been suspended or debarred from receiving Federally-assisted contracts. As part of their applications each year, recipients are required to submit a certification to the effect that they will not enter into contracts over S 100,000 with suspended or debarred contractors and that they will require their contractors (and their subcontractors) to make the same certification to them. Flow Down Subrecipients are required to pass this requirement on to subcontractors seeking subcontracts over S 100,000. Thus, the terms "lower tier covered participant" and ".lower tier covered transaction" include both contractors and subcontractors and contracts and subcontracts over S 100,000. (1) The Subrecipients certifies to the best of its knowledge and belief, that it and its principals: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from covered transactions by any federal department or agency; (b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and (d) Have not within a three-year period preceding this application/proposal had one or more public transactions terminated for cause or default. (2) Where the Subrecipient is unable to certify to any of the statements in this certification, such Subrecipient shall attach an explanation to this certification. Signature of Certifying Official Title Date Lower Tier Participant Debarment Certification (Negotiated Contracts) (For Subrecipients Contractors Over$100,000) being duly sworn or under penalty kinsert name ol certifying o icia of perjury under the laws of the United States, certifies that neither (insert name of lower tier participant) nor its principals are presently: • debarred, suspended, proposed for debarment, • declared ineligible, • or voluntarily excluded from participation in this transaction by any Federal department or agency Where the above identified lower tier participant is unable to certify to any of the above statements in this certification, such prospective participant shall indicate below to whom the exception applies, the initiating agency, and dates of action. Exceptions will not necessarily result in denial of award, but will be considered in determining contractor responsibility. Providing false information may result in criminal prosecution or administrative sanctions. EXCEPTIONS: Signature of Certifying Official Title: Date: Certification Information This certification is to be used by contractors pursuant to 49 CFR 29 when any of the following occur: • any transaction between the Contractor and a person (other than a procurement contract for goods and services), regardless of type, under a primary covered transaction • any procurement contract for goods or services when the estimated cost is $25,000 or more • any procurement contract for goods or services between the Contractor and a person, regardless of the amount, under which the person will have a critical influence on or substantive control over that covered transaction. Such persons include principal investigators and providers of federally required audit services. A procurement transaction is the process of acquiring goods and services. A nonprocurement transaction is the granting of financial assistance to entities to assist the grantor in meeting objectives that are mutually beneficial to the grantee and grantor. A COPY OF THIS CERTIFICATION IS TO BE FURiNISHED TO AUTHORIZED REPRESENTATIVES OF THE STATE OR THE U.S. DEPARTMENT OF TRANSPORTATION UPON REQUEST. End of Contract