Policies

• Arrive at your bus stop several minutes before the scheduled time.
• Stand back 3-5 feet from the curb as your bus approaches the bus stop.
• All DTA buses are equipped with a kneeling feature to assist you with boarding and alighting.
• Have your fare payment ready before boarding.
• The bus features handrails, poles and seat handles to assist you in safely walking to your seat.
• Please take a seat when available. To ensure your safety, standing is only allowed when all seats are taken. Stand behind the yellow line.
• Please surrender your seat for senior citizens or passengers with disabilities.
• Conversations with bus operators must be trip or transit related.
• Strollers, carts and packages cannot block the aisle and must be stored under or between seats.
• Children are not allowed to remain in a stroller on the bus. They must be seated and remain under your control at all times.
• When nearing your bus stop, alert the bus operator of a “Stop Requested” by pulling the wire or pushing the button. Stay in your seat until the bus comes to a complete stop and exit out of the rear door.
• Passengers should NEVER cross in front of a DTA bus. Please wait until the bus has left the bus stop and all traffic is clear.

• Smoking cigarettes, chewing tobacco and using e-cigarettes are not allowed on buses, in facilities or within 15 feet of any bus stop.
• Eating is not allowed on the bus.
• Drinking is allowed from a covered container.
• Respect other passengers. Keep your feet off the seats and take litter with you.
• Pets must be kept in approved animal carriers with service animals being exempt.
• The DTA enforces a zero-tolerance profanity policy. Using profanity or derogatory statements can get you removed from the bus and riding privileges canceled.
• Loud music, talking loudly on the phone and other disruptive behavior including harassment of other passengers is not allowed.
• Bicycles are not permitted inside the bus. If the bike rack is full, passengers with bicycles must take the next scheduled bus.
• Weapons or toys that have the appearance of weapons, including airsoft or NERF-style items are expressly prohibited aboard buses, at bus stops, and all DTA facilities and property.

POLICIES AND STANDARDS FOR
ADVERTISING ON DULUTH TRANSIT AUTHORITY FACILITIES

The policy is documented below in its entirety, however you can VIEW A PDF HERE

The Duluth Transit Authority (“DTA”) is an authority of the City of Duluth, Minnesota, and operates a regional transit system in the Duluth metro and surrounding area, as well as in Superior, Wisconsin. The DTA owns and operates buses, vans, trolleys, service vehicles, other transit-related vehicles, bus shelters, transit terminals and facilities, parking garages, maintenance garages, electronic materials including webpages and electronic signs, and other properties (collectively referred to as “DTA Facil-ities”) in conjunction with its regional transit system. It is in the public interest to make advertising space available on certain designated DTA Facilities to generate revenue to augment the DTA’s operating budget.

I. PURPOSE
1.01 The primary purpose of the DTA’s transit system is to provide safe and efficient public transportation within its service area. Consistent with this purpose, the DTA places great im-portance on maintaining secure, safe, comfortable and convenient transit facilities and vehicles in order to, among other things, retain existing riders and attract new users of public transit services. To generate additional revenue while also accomplishing the primary objectives of transit opera-tions, the DTA will accept advertising on its DTA Facilities only if such advertising complies with the intent of the standards and conditions of the DTA’s advertising policy (“Advertising Policy”).

1.02 Nonpublic Forum; Commercial / Proprietary Functions. The DTA will make space on its DTA Facilities available for limited types of advertising (“Permitted Advertising”). By allowing lim-ited types of advertising on or within its DTA Facilities, the DTA will not provide or create a public forum for public discourse or expressive activity, or provide a forum for all types of advertisements. In keeping with its proprietary function as a provider of public transportation, the DTA retains control over the nature of advertisement accepted on DTA Facilities, and does not intend its acceptance of transit advertising to permit DTA Facilities to be used as open forums for public discourse or debate. The display of Permitted Advertising on designated DTA Facilities is intended only to supplement fare revenue, tax proceeds and other income that fund the regional transit system. The DTA’s funda-mental purpose and intent is to accept advertising as an additional means of generating revenue to support its transit operations. In furtherance of that discreet and limited objective, the DTA retains strict control over the nature of the advertisements accepted for posting on or in DTA Facilities and maintains its advertising space as a non-public forum.
In the DTA’s experience, certain types of advertisements interfere with the advertising program’s primary purpose of generating revenue to benefit the transit system. This Advertising Policy advanc-es the advertising program’s revenue-generating objective by prohibiting advertisements that could detract from that goal by creating substantial controversy, interfering with and diverting resources from transit operations, and/or posing significant risks of harm, inconvenience or annoyance to transit passengers, DTA personnel, and DTA Facilities. Such advertisements create an environment that is not conducive to achieving increased revenue for the benefit of the transit system or to preserving and enhancing the security, safety, comfort and convenience of its operations.

The viewpoint neutral restriction in this Advertising Policy fosters the maintenance of a professional advertising environment that maximizes advertising revenue.
1.03 This Advertising Policy is intended to provide clear guidelines as to the types of Permitted Advertising that will allow the DTA to generate revenue and enhance transit operations by fulfilling the following goals and objectives:
-Maximizing advertising revenue;
-Preventing the appearance of favoritism by the DTA;
-Preventing the risk of imposing demeaning or disparaging views on a captive audience;
-Maintaining a position of neutrality on controversial issues;
-Avoiding offense to patrons of the facility;
-Preserving the marketing potential of the advertising space by avoiding content that the community could view as demeaning, disparaging, objectionable, inappropriate or harmful to members of the public generally or to minors in particular;
-Maximizing ridership;
-Avoiding claims of discrimination and maintaining a non-discriminatory environment for riders;
-Preventing any harm or abuse that may result from running demeaning, disparaging or
objectionable advertisements;
-Avoiding the use of the DTA Facilities to promote illegal activities;
-Reduce the diversion of resources from transit operations that is caused by demeaning, disparaging, objectionable, inappropriate or harmful advertisements.

DTA Facilities are a non-public forum and, as such, the DTA will only accept that Permitted Advertising that falls within the categories of acceptable advertising specified in this viewpoint neutral policy and that satisfies all other access requirements and restrictions provided herein.  The DTA reserves the right to suspend, modify, or revoke the application of any of the standards of this Advertising Policy as it deems necessary to comply with legal mandates, to accommodate it pri-mary transportation function, or to fulfill the goals and objectives identified above.

1.04 Certain Excluded Advertising. The DTA will not accept for display on DTA Facilities the types of advertising defined in Section 2.03 of these policies and standards (“Excluded Advertising”). By not accepting Excluded Advertising the DTA can: (a) maintain a professional advertising environment that maximizes advertising revenues and minimizes interference or disruption of the commercial aspects of its regional transit system; (b) maintain an image of neutrality on political matters and other noncommercial issues that are the subject of public debate and concern; (c) protect passengers, employees and DTA Facilities from harm or damage that can result from some individual’s reactions to political or controversial materials or dissuade patrons from using DTA Facilities temporarily or permanently; and (d) help build and retain transit ridership.

1.05 Limits on Permitted Advertising. Placing reasonable limits on Permitted Advertising dis-played on DTA Facilities will enable the DTA to: (a) avoid subjecting its passengers and other members of the public to material that may cause them embarrassment or discomfort and discourage them from using transit services; (b) maintain an image of professionalism and decorum; (c) avoid displaying material that is not suitable for viewing by minors who ride on DTA buses or vehicles or whose neighborhoods are served by DTA bus routes; and (d) maximize revenues by attracting and maintaining the patronage of passengers.

1.06 Disclaimer. The DTA reserves the right, in all circumstances, to require an advertisement to include a disclaimer, at the advertiser’s sole expense, that it is not sponsored by and does not necessarily reflect the views of the DTA.

II. ADVERTISING POLICIES
2.01

Permitted Advertising. Subject to the viewpoint-neutral standards and restrictions contained in this Advertising Policy, the DTA will accept Permitted Advertising for display or placement on designated DTA Facilities. Permitted Advertising includes, but is not limited to:

a. Commercial Advertising. Advertising proposing, promoting or soliciting a commercial transaction for the sale, rent, lease, license, distribution or availability of products or ser-vices in exchange for monetary consideration, in order to advance the advertiser’s com-mercial or proprietary interest, including advertising from tourism bureaus, chambers of commerce, or similar organizations that promote commercial interests of its members.
b. Government Advertising. Advertising by a state or local governmental entity that ad-vances specific governmental purposes.

2.02 Other Permitted Advertising and Public Service Announcements.
a. The DTA will not provide or create a public forum for public discourse or expressive activity, or to provide a forum for all types of advertisements. The DTA may make advertising space available for Public Service Announcements (“PSA”) proposed by governmental entities, academic institutions or tax-exempt nonprofit organizations under Internal Revenue Code Section 501(c)(3). Nonprofit entities must provide proof to the DTA of their tax-exempt status upon initial request for approval.
Advertising from governmental entities, academic institutions and tax-exempt nonprofit organiza-tions must be viewpoint neutral and comply with this Advertising Policy. The DTA will not accept advertising from nonprofit entities related to matters of Public Controversy, nor shall the advertising and public service announcements contain displays or messages that qualify as Excluded Advertis-ing under this Advertising Policy.
b. Content of the PSA must be directed to the general public or a significant segment of the public and relate to:
i. prevention or treatment of illness
ii. promotion of safety or personal well-being
iii. education or training
iv. provision of children and family services
v. solicitation by broad-based contribution campaigns which provide funds to multiple charitable organizations
vi. provision of services and programs that provide support to low-income citizens, senior citizens, and people with disabilities
c. Costs associated with the design, production, installation and removal of public service announcements are the responsibility of the group or organization requesting the public service announcement. The DTA explicitly reserves the right to refuse permission to government entities or nonprofit organization’s advertisements that do not conform to this Section or the Advertising Policy in general. Unless the source of the PSA is obvious from the content or copy, the PSA must specifically identify the sponsor of the advertisement or the message.

2.03 Excluded Advertising. The DTA will not accept Advertisements violating the standards and restrictions set forth in this Advertising Policy. For the purposes of these standards and restrictions, the advertising described in this Section is “Excluded Advertising.” The DTA will

not accept the following Excluded Advertising for display, posting or placement on or within DTA Facilities:
(a) Political or “Issues” Advertising. The advertising space on DTA Facilities is a nonpublic forum. The DTA therefore will not accept political or “issues” advertising. For the purposes of these policies, political or issues advertising includes: (1) advertisements, posters or other displays that promote or oppose candidates for appointive or elective offices; (2) advertising that promotes or opposes the election of any candidate or group of candidates for federal, state, local government offices, (3) political campaign material; (4) advertisements, posters or other displays that promote or oppose ballot questions, initiatives, petitions or referenda; (5) advertisements, posters or other displays that promote, oppose or otherwise directly relate to issues of public debate on economic, political or social issues; (6) messages that implicate, criticize, condemn or denounce the action, inaction, prospective action or policies of an individual or government entity; and (7) advertising that supports or opposes any labor organizations or any action by, on behalf of or against any labor organization.
The following nonexclusive factors are to be considered when distinguishing between permit-ted commercial advertising and prohibited “issues” advertising under this Policy:
(i) whether a commercial product or service is apparent from the face of the ad;
(ii) whether the commercial product or service is incidental to the public interest content of the ad;
(iii) whether the sale of commercial products or services is the primary source of the advertiser’s total annual revenue; and
(iv) whether the advertiser is a for-profit entity.
This exclusion does not apply to Government Advertising herein.
(b) Public Controversy. The DTA will not accept advertising relating to matters of public controversy, such as pregnancy or abortion counseling, racial tolerance or intolerance, political view-points supporting or opposing government actions or speech, civil rights or liberties for protected classes, or lack thereof, promoting or undermining actions of foreign governments or entities for or against its own citizens or for or against the United States, promoting or undermining the use of legal or illegal drugs, etc. (“Public Controversy”). For purposes of determining whether an advertisement contains such material, the DTA will determine whether a reasonably prudent person, knowledgeable of the DTA’s ridership and using prevailing community standards, would believe that the material is so controversial that it is reasonably foreseeable that it will result in harm to, disruption of or interference with DTA patrons and/or personnel, dissuade patrons from using DTA Facilities temporarily or permanently, disrupt or interfere with DTA safety and security procedures, the transportation system or DTA Facilities.
(c) Alcoholic Beverages. The DTA will not accept advertisements and images soliciting or promoting the sale or use of alcoholic beverages other than beer and wine. Beer and wine advertising must contain a responsible drinking message. Copy or graphics that do not portray responsible use of beer or wine by individuals or groups or portray use of beer or wine by individuals or groups not of legal age will not be accepted.
(d) Tobacco, Controlled Substance Products. The DTA will not accept advertisements and images soliciting or promoting the sale or use of tobacco or tobacco substitute products including, but not limited to, cigarettes, cigars, smokeless tobacco, vaping or electronic cigarettes, cannabis, cannabis products, cannabis businesses or cannabis services, other federally or state controlled substances, including narcotics, depressants, stimulants, hallucinogens, anabolic steroids, CBD products, etc.; and advertisements that promotes retail establishments whose primary merchandise is tobacco, tobacco substitutes, cannabis products or services, or controlled substance products.
(e) Religious Advertising. The DTA will not accept advertising in which the primary message is one promoting or opposing religion, particular religions, religious deities, religious issues or religious doctrines, Advertising in which the primary message is to promote a business and/or offers to sell products, good or services is acceptable. For example, an advertisement promoting the sale of goods during Christmastime is acceptable because it promotes the sale of goods and not the religious celebration of the holiday.
(f) Advertisements Affecting Image or Operation. The DTA will not accept advertisements and images that threaten or adversely affect: the public image of the DTA or its staff; the DTA’s ability to operate its Facilities; or the DTA’s ability to attract and maintain the patronage of passengers.
(g) False, Misleading, Deceptive or Disrespectful Advertising. The DTA will not accept advertising or any material or information in the advertising that is false, misleading or deceptive, or that is intended to be (or reasonably could be interpreted as being) demeaning, disreputable or disrespectful to persons, groups, businesses or organizations, including advertising that portrays individuals as inferior, evil or contemptible because of their race, color, creed, gender, pregnancy, age, religion, ancestry, national origin, marital status, familial status, disability, including those related to pregnancy or child birth, public assistance, local human rights commission activity, affectional or sexual orientation, or any other characteristic protected under federal, state or local law; and advertising material that is, or that the sponsor reasonably should have known is, fraudulent or would constitute a tort of defamation or invasion of privacy. For purposes of determining whether an advertisement contains such material, the DTA will determine whether a reason-able prudent person, knowledgeable of the DTA’s ridership and using prevailing community standards, would believe that the advertisement is in violation of this Policy, or contains material that ridicules, mocks, is abusive or hostile to, or debases the dignity or stature of any individual, groups, businesses or entities of any kind.

(h) Unauthorized Endorsement. The DTA will not accept advertising that implies or declares that the DTA endorses a product, service, event or program. The prohibition against endorsement does not apply to advertising for a service, event or program for which the DTA is an official sponsor, co-sponsor or participant, provided DTA’s General Manager or other designated representative gives prior written approval regarding the endorsement.
(i) Obscene or Offensive Material. The DTA will not accept advertising that contains obscene or offensive materials. “Obscene materials” means displays or information that, taken as a whole, appeal to the prurient interest in sex and depict or describe in a patently offensive manner sexual conduct and which, taken as a whole, does not have serious literary, artistic, political, or scientific value, or otherwise qualifies as “obscene” as that term is defined in Minnesota Statutes section 617.241. “Offensive materials” means displays or information that would be offensive to a reasonably prudent person of average sensitivity in the community, including advertising that contains derisive, distorted, immoral, profane or disreputable language or impressions, sexual innuendo or double entendre(s). Obscene or offensive material also includes advertising that contains “pornographic work” as that term is defined in Minnesota Statutes sections 617.246 and 617.247 or promotes pornography, including “men and women’s sophisticated magazines,” “X-rated” or adult-oriented films, “X-rated” or adult-oriented cable channels and internet sites, adult telephone services, escort services, adult entertainment facilities, adult book stores, adult video stores, nude dance clubs or other adult entertainment establishments, businesses trafficking in pornography, including the use of brand names, trademarks, slogans or other materials that are identifiable with these items, activities or services.
Offensive material also includes material that depicts or represents nudity, sexual or excretory organs, excretory activities, urination or defecation in any way, sexual conduct or sexual excitement, sexual stimulation, including entertainment or products that promote sexual stimulation or the sale of such products, or is unsuitable for minors to see.
Offensive material also includes material that depicts or reasonably appears to depict, a person under the age of eighteen (18) exhibiting his or her sexual or excretory organs or engaging in sexual or excretory activities.
The foregoing prohibitions include, but are not limited to: • Sexually suggestive images, photographs or drawings (example: proactive posing and/or nudity). • Sexually suggestive ad text (example: click here to take something off). • Advertisements dealing with products relating to sexual performance/ enhancements (including herbal and topical supplements) and reproductive related services.
(j) Human Reproduction. The DTA will not accept advertisements depicting or promoting products, devices, paraphernalia or services related to human reproduction or sexual enhance-ments, including, but not limited to, contraceptive products or services, statements for or against contraception, other products or services related to sexual hygiene and counseling with regard to pregnancy, abortion or other reproductive matters.
(k) Unlawful Goods or Services. The DTA will not accept advertising or any material or information in the advertising that depicts, promotes or reasonably appears to encourage the use or possession of unlawful or illegal goods or services.
(l) Unlawful Conduct. The DTA will not accept advertising or any material or information in the advertising that: depicts, promotes or reasonably appears to encourage unlawful or illegal behavior or conduct, including unlawful behavior of a violent or antisocial nature or presents a clear and present danger causing a riot, disorder or other imminent threat to public peace, safety and order; is libelous or an infringement of copyright, trademark, service mark, title, or slogan; is otherwise unlawful or illegal; or is likely to subject the DTA to liability.
(m) Aesthetics and Function. The DTA will not accept any advertising that interferes with the aesthetics or function of a DTA Facility, including restricting visibility, inhibiting or covering identification or way finding signage, or inhibiting the proper function of the DTA Facility, including movement, ventilation, lighting, etc., or limiting the ability of electronic or radio communication to be conducted.

(n) Graffiti. Advertising that uses images or symbols that depict or represent graffiti is prohibited.
(o) Firearms and Weapons. The DTA will not accept advertising that contains images or depictions of firearms or other weapons, including, but not limited to, knives, machetes, brass knuckles, whips or other devices designed or used for inflicting bodily harm or physical damage; the un-lawful use of firearms; firearms related products; advertisements that promotes or solicits the sale, rental, distribution, availability or use of firearms, weapons or related products, including clothing with firearm branding; or retail establishments whose primary merchandise is firearms or other weapons.
(p) Internet Addresses and Telephone Numbers. The DTA will not accept advertising that directs viewers to internet addresses or telephone numbers that contain materials, images or information that would violate this Advertising Policy if the materials, images or information were con-tained in advertising displayed or posted on DTA Facilities.
(q) Distractions and Interference. The DTA will not accept advertising that incorporates or dis-plays any rotating, revolving, or flashing devices or other moving parts, mirrors, sound makers, or any word, phrase, symbol or character, any of which are likely to interfere with, mislead or distract traffic or conflict with any traffic control device or motor vehicle regulation, or which interferes with the safe operation of the vehicle or the safety of the vehicle, drivers of other vehicles or the public at large.
(r) Profanity and/or Violence. The DTA will not accept advertising that contains any profane language, or portrays images or descriptions of graphic violence, including dead, mutilated or disfigured human beings or animals, the act of killing, mutilating or disfiguring human beings or animals, or intentional infliction of pain or violent action towards or upon a person or animal, or that depicts weapons or devices that appear to be aimed or pointed at the viewer or observer in a menacing manner. Advertisements that promote or depict electronic games or applications that are rated “A” or M” are also prohibited.
(s) Adverse to DTA: The DTA will not accept advertising or any material contained in it, that is directly adverse to the commercial or administrative interests of the DTA, or that tends to disparage the quality of service provided by the DTA, or that tends to disparage public transportation generally.
(t) DTA Graphics and References: Advertising that contains DTA graphics, logos, and representations without the express written consent of the DTA General Manager is prohibited.
(u) Harmful or Disruptive to DTA Facilities or Operations. The DTA will not accept advertising that contains material that is so objectionable as to be reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system or DTA Facilities. For purposes of determining whether an advertisement contains such material, the DTA will determine whether a reasonably prudent person, knowledgeable of the DTA’s ridership and using prevailing community standards, would believe that the material is so objectionable that it is reasonably foreseeable that it will result in harm to, disruption of or interference with DTA patrons and/or personnel, dissuade patrons from using DTA Facilities temporarily or permanently disrupt or interfere with DTA safety and security procedures, the transportation system or DTA Facilities.
(v) Unsafe Transit Behavior. Any advertisement that encourages or depicts unsafe behavior with respect to transit-related activities, such as non-use of normal safety precautions in awaiting, boarding, riding upon or debarking from transit vehicles is prohibited.
2.04 Prohibitions on Literature or Product Distribution and Leafleting. The DTA’s purpose in operating a regional transit system is to meet the public’s need for efficient, effective and safe public transportation. DTA Facilities are not public forums for public discourse or expressive activity. Literature or product distributions, leafleting and similar activities can disrupt or delay passengers who are boarding and exiting buses and transit vehicles, distract passengers, distract bus and vehicle operators, cause maintenance issues, and otherwise create safety issues for passengers, operators and surrounding traffic. Accordingly, distribution of literature, leafleting, posting of signs and other in-formational activities are prohibited within DTA Facilities. Notwithstanding the policies that allow the display of Permitted Advertising on designated DTA Facilities, nothing in these policies or standards authorizes or permits advertisers to post signs or business cards, distribute literature, leaf-lets, coupons, products, magazines, newspapers or newsletters, samples or other items within DTA Facilities.
2.05 Revision of Advertisement. In the event that an advertisement falls within one or more categories of Excluded Advertisements, the advertiser may, in consultation with the DTA advertising contractor, discuss one or more revisions to the advertisement, including modification of the art, copy or content, which, if undertaken, would bring the advertisement into conformity with the DTA Advertising Policy. The advertiser shall then have the option of submitting a revised advertisement for review by the advertising contractor and/or the DTA.
2.06 Notification of Non-Complying Advertisements. Notwithstanding the forgoing, if the advertising contractor and/or the DTA determine at any time that an advertisement already accepted for display falls within one or more of the categories set forth in this Advertising Policy, the advertising vendor and/or the DTA shall:
a. in writing, specify which of the categories the advertisment(s) falls within;
b. notify the advertiser that the DTA has determined that the advertisement is not in conformity with its Advertising Policy and that the advertisement shall promptly be re-moved; and
c. instruct the advertising contractor to remove the advertisement.
2.07 Removal of Non-Complying Advertisements. Upon receiving a notification of non-complying advertisement, the advertising contractor shall:
a. promptly remove the advertisement
b. shall provide the advertiser with a copy of the DTA Advertising Policy
c. may, in conjunction with the DTA, discuss with the advertiser one or more revisions to the advertisement, which, if undertaken, would bring the advertisement into conformity with the DTA Advertising Policy, and the advertiser shall have the opportunity for revision as set forth herein
d. provide a pro-rated refund of any prepaid advertising fees minus any design, production or installation costs incurred by the advertising contractor or the DTA.

III. ADVERTISING STANDARDS AND RESERVATION OF RIGHTS
3.01 Advertising Pricing and Space Availability. The price for placing advertising on DTA Facilities is governed by the contract(s) between the DTA and its advertising contractor(s). The DTA limits the amount of space on its DTA Facilities available for advertising and does not represent that it can accommodate all requests for advertising space. Advertising space will be made available only on DTA Facilities designated by DTA. No advertising, signs and other types of postings or messages may be displayed, posted or placed on any other DTA Facilities.
3.02 The DTA explicitly reserves the right, in its sole judgement, to limit the number of advertisements from any advertiser, groups of advertisers, public or private entities, or any other Permitted Advertising similar in nature, subject matter, or content, to no more than 10% of the advertising space available in or on DTA Facilities.
3.03 Sponsor Attribution and Contact Information. Any advertising in which the identity of the sponsor is not readily and unambiguously identifiable must include the following phrase to identify the sponsor in clearly visible letters (no smaller than 72-point type for exterior and 24-point type for interiors): Paid for by ___________________
“Teaser ads” that do not identify the sponsor will, however, be permitted so long as a similar number of follow up advertisements are posted within eight weeks of the initial teaser ads that do identify the sponsor of those initial ads.
3.04 Reservation of Rights. The DTA reserves the right to suspend, modify, amend or revoke the application of any of these policies and standards at any time without cause. All of the provisions of this Advertising Policy shall be deemed severable. Revisions or amendments will be made in writing and provided to the DTA’s advertising contractor(s). Subject to any contractual obligations, the DTA reserves the right to discontinue advertising on DTA Facilities and discontinue accepting advertising for display or posting on DTA Facilities. The DTA reserves the right to limit the avail-ability of advertising space on its DTA Facilities and remove advertising that does not comply with this Advertising Policy, and, subject to any contractual obligations, reserves the right to display advertisements and notices on DTA Facilities that pertain to the DTA’s operations and its own promotions.
IV. DISCLAIMER OF ENDORSEMENT
4.01 The DTA’s acceptance of any advertisement does not constitute express or implied endorsement of the content or message of the advertisement, including any person, organization, products or services, information or viewpoints contained therein, or of the advertisement sponsor itself. This endorsement disclaimer extends to and includes content that may be found via Internet ad-dresses, quick response (“QR”) codes, and telephone numbers that may appear in posted ads and that direct viewers to external sources of information.
V. APPEAL OF ADVERTISING DECISIONS
5.01 Initial Reviews. The DTA’s advertising contractor(s) will make initial decisions about accepting or rejecting proposed advertising. The decisions will be based on this Advertising Policy. The DTA’s Director of Marketing or designee will work with the DTA’s advertising contractor(s) and advertisers to resolve issues about advertisements that do not comply with this Advertising Pol-icy. Resolution may include modification of the art, copy or both.
5.02 Appeals to Advertising Review Committee. An advertiser may appeal a decision to reject or remove an advertisement by filing a written request with the Advertising Review Committee within ten (10) business days after the rejection or removal decision. The advertiser’s request must state why the advertiser disagrees with the decision in light of the DTA’s Advertising Policy. The Advertising Review Committee consists of the following DTA personnel: the Procurement Manag-er, the Finance Director, the Director of Marketing and the Director of Operations, or alternative personnel designated by the General Manager. The Advertising Review Committee may consult with legal counsel. The Advertising Review Committee will review the basis for the rejected or re-moved advertisement and will consider the advertiser’s reasons for filing the request. The Advertising Review Committee will make a decision on the request and will notify the advertiser of its decision in writing within fifteen (15) business days after receiving the advertiser’s request.
5.03 Further Review by General Manager. An advertiser who disagrees with a decision of the Advertising Review Committee may request DTA’s General Manager to review the Committee’s decision. The advertiser’s written request for further review must be received within five (5) business days after receipt of the Advertising Review Committee’s decision. The General Manager may consult with legal counsel. The General Manager may accept, reject or modify the Advertising Review Committee’s decision and will notify the advertiser of the General Manager’s decision within five (5) business days after the General Manager receives the advertiser’s request for further review. The General Manger’s decision is final.
VI. APPLICATION OF POLICY
6.01 This Advertising Policy shall be effective upon adoption but shall not be enforced to impair the obligations of any contract in effect at the time of its approval. It shall be incorporated into any new contract for advertising on DTA Facilities.
6.02. Any advertising contractor must comply with the advertising standards set forth in this Advertising Policy, as they may be amended from time to time. Any advertising contractor must dis-play only those advertisements that are in compliance with this Advertising Policy.
6.03 Any pilot programs or experimental advertisements must be approved by the DTA in advance.
6.04 Advertising that is removed from DTA Facilities in violation of this Advertising Policy or at the request of the DTA or its advertising contractor, shall be removed at the advertiser’s sole cost and expense, with no liability to the DTA whatsoever.
6.05 The Procurement Manager, the Marketing Director, Finance Director, the Director of Opera-tions, are responsible for the implementation of this Advertising Policy.
6.06 The DTA Advertising Policy applies to the posting of all new advertisements on DTA Facili-ties on or after the Effective Date. Any advertisements that would have been prohibited under this Advertising Policy but which were posted pursuant to a fully executed advertising contract prior to the Effective Date of this Advertising Policy will be allowed to remain posted for the duration of that contract.

 

NOTICE:  BELOW IS AN UPDATED LOST-AND-FOUND POLICY (EFFECTIVE JANUARY 20TH).  KEY CHANGES INCLUDE THE DULUTH TRANSIT CENTER BECOMING THE PICK-UP LOCATION FOR LOST-AND-FOUND ITEMS.  LARGE ITEMS SUCH AS BIKES WILL STILL BE HELD AT THE OPERATING CENTER (2402 WEST MICHIGAN STREET).  ANY QUESTIONS CAN BE DIRECTED TO 218-722-7283

PURPOSE:

 

The purpose of the Lost and Found Policy and Procedures is to provide a secure system for the receiving, holding, and distribution of items lost by passengers who ride our buses. Contained in this policy are a general description, procedures, employee responsibilities, and disposition of lost items. This policy is designed to eliminate problems associated with being custodians of lost items.

 

GENERAL DESCRIPTION:

 

The Duluth Transit Authority is not responsible for lost or stolen items by passengers using our system. However, the DTA does receive, on an almost daily basis, items which have been forgotten or lost by passengers. It is our intent, through specific procedures, to intake lost items, log these items, return items to rightful owners when claimed, and to distribute useable, unclaimed items to agencies who provide a network of distribution to people in need.

 

INTAKE AND LISTING OF LOST ITEMS

 

A Bus Operator will inspect his or her bus at each terminal end point for lost items. Any items found will be brought to the Dispatch Office at the conclusion of the run. If a passenger calls regarding a priority (phone, wallet, purse, etc.) item just lost, a request may be made to the Dispatcher to contact the Bus Operator to determine if the item has been found. If item is considered non priority, the passenger will be instructed to call the following day to see if item was turned in. The Information Operator will note the necessary information of name, phone number, destination of bus, date, bus number, location of where passenger boarded the bus, the time the bus will return to the garage, and whether the item was found on the bus. This form will be placed in the Lost and Found Log Book and used as verification when the item is later claimed. Lost or unclaimed bicycles will continue to be stored at the DTA Operating Center.

 

Lost items turned into the Dispatch Office will be picked up each day from the DTA Operating Center and be transported to the Duluth Transportation Center by 10:00 a.m. The DTC Information Operator will log each item as to date lost and description of item. This information is entered into the Lost and Found Log Book and initialed by the DTC Information Operator.

 

After the items have been logged, they are bagged and placed into the daily bins located in the Lost and Found storage area. Each bag will be noted with description of item(s).

 

 

 

 

 

Lost and Found

Policy and Procedures

 

Attempts are to be made to contact the owners of lost items (such as wallets or purses) that are identifiable by name, address, telephone number, etc. Valuable items that have serial numbers or other numbering used for registration, warranty, or insurance verification will be noted on the Lost and found Inquiry Form. When the owner calls to claim the item, they are to be asked to identify the item by that number whenever possible. Valuable items to be claimed without serial number verification will require personal identification information before release of the item. Perishable items will be placed in the trash within one day.

 

 

ITEMS CLAIMED:

 

Any item to be claimed must be identified by physical description. If the item is sufficiently described, the person claiming the item must sign and list their telephone number into the Log Book. If the signature is difficult to read, the name should be printed next to the signature. The DTC Information Operator releasing the item will initial the Log Book next to the person’s telephone number.

 

A verification by identification card is to be made of the person claiming an item having an estimated value of more than $25.00. The DTC Information Operator releasing the item will initial the Log Book next to the person’s telephone number. At no time will passengers be allowed into the secured booth area to claim lost items. After releasing the item, the DTC Information Operator will bring the item(s) to the claimant outside the booth.

 

ITEMS NOT CLAIMED:

 

Lost items not claimed will remain in storage for a period of 7 days. Items not claimed will be removed from storage and can be claimed by the Bus Operator or Maintenance Department employee who found it if desired. This includes lost cash. If cash is turned in to lost and found and no person claims it, the lost cash will be turned into the Finance Department at the DTA Operating Center. When these employees claim the item, they are to sign the Log Book. The Information Operator will initial releasing the item.

 

Items that are useable and not taken by Bus Operators or Maintenance employees are to be bagged for delivery to a social agency for distribution. Each item bagged shall be noted at such into the Log Book with the DTC Information Operator’s signature also.

 

Unclaimed items of no value that are to be disposed of  will be so noted in the Log Book.

Again, the DTC Information Operator is to initial this distribution method.

 

 

 

 

 

 

GENERAL:

The hours for the public to claim items from Lost and Found at the Duluth Transportation Center are:

Weekdays: 7:00 a.m. to 7:00 p.m.

Saturdays: 7:30 a.m. to 4:00 p.m.

Sundays: 9:30 a.m. to 6:00 p.m.

 

All items taken in through the lost and found process are to be considered the property of the DTA until claimed by the owner, given to the Bus Operator or Maintenance employee who turned the item in, or provided to an agency for distribution.

The DTA is not responsible for items lost on buses. It is the policy of the DTA to be good stewards of items taken into the lost and found system, and to be able to track each item from intake to its final distribution. Each employee whose job function is associated with the lost and found system will follow the guidelines as described in this policy.

 

Duluth Transportation Center

Code of Conduct

Adopted June 26, 2019

We appreciate your patronage, and in order for everyone to enjoy the facility, please note the following rules:

• Loitering on the property beyond one hour for DTA buses is not permitted.
• Please use earphones for audio or video devices, including cell phones. Keep your voice down to respect other customers.
• Yelling, swearing, profanity, insults, threats, aggressive behavior, intimidation, fighting, or acts of violence are prohibited.
• Please share or give up your seat for disabled persons or those traveling with young children.
• Alcohol, controlled substances, tobacco products, including cigarettes, pipes, cigars, chewing tobacco and vape pens, are not to be used or consumed on DTC property.
• No unlicensed guns, ammunition, knives, petroleum products, propane tanks, explosives, etc. are permitted in the building.
• Do not block doors, sidewalks driveways or the buses.
• Sitting or laying on the stairs, curbs, or floor is not permitted. Please keep feet off furniture and sills.
• Please place garbage and recycling in the can.
• Destruction and vandalism of DTA property will be prosecuted.
• Riding bicycles, skates, skateboards, scooters or hoverboards on DTA property is not permitted.
• Shirts, pants/ shorts/skirts and shoes are required.
• Distributing leaflets, advertisements, or other solicitations are prohibited without the advance written permission of the DTA General Manager.
• Service animals are permitted in DTA buildings. Other animals in a pet carrier are permitted.
• Packages and personal belongings may not be kept in the aisles or on another seat. Unattended/unclaimed items will be removed and disposed.
• Weapons or toys that have the appearance of weapons, including airsoft or NERF-style items are expressly prohibited aboard buses, at bus stops, and all DTA facilities and property.

Persons violating these rules or applicable law may be banned from using DTA buses, shelters and buildings for a period of up to one year. Repeat violations may result in permanent suspension of transit privileges.

Written appeals of a suspension must be sent to the General Manager within two weeks after the suspension notice. Appeals must be addressed to DTA General Manager, Facility Appeals, 2402 West Michigan Street, Duluth, MN 55806.

DTA Photo Policy

The general public is permitted to use hand-held cameras to take photographs, capture digital images, and videotape within areas of the Duluth Transit Authority (“DTA”) stations and transit vehicles open to the public for personal, non-commercial use. 

Large cameras, photo or video equipment, or ancillary equipment such as lighting, tripods, cables, etc. are prohibited (except in instances where commercial and professional photographers enter into contractual agreements with the DTA). 

All photographers and videographers are prohibited from entering, photographing, or videotaping non-public areas of the DTA’s transit system. 

All photographers and videographers are prohibited from impeding customer traffic flow, obstructing transit operations, interfering with customers, blocking doors or stairs, and affecting the safety of DTA, its employees, or customers. All photographers and videographers must fully and immediately comply with any requests, directions, or instructions of DTA personnel related to safety concerns.

Safety Tips

• For everyone’s safety, do not use a camera’s flash if facing a person who is operating a bus.
• Be respectful of others – DTA customers and employees.
• Don’t stand (or cause others to stand) in the way of stairs, aisles, or doorways.
• Be careful! Your safety is very important to us, so stay away from curbs and moving vehicles.
• Be safe! Don’t inch backward with your camera to get a wider view – always look where you’re going. While on DTA premises, all photographers and videographers must comply with all applicable rules, including but not limited to, this policy, all applicable laws, ordinances, municipal regulations, standard operating procedures, administrative procedures and other DTA policies. DTA personnel may evaluate the actions of a photographer or a videographer, and if a determination is made that the actions of a photographer or videographer are not in compliance with any applicable rule, DTA personnel may terminate the permission granted by this policy.  DTA facilities and vehicles are for the exclusive use of the DTA, its employees, and its customers. Any and all permission granted to photograph and videotape in connection with this policy is subordinate to the DTA’s obligations to its customers, employees and to the general public. Loitering at DTA stations for extended periods for the purpose of taking photographs or video is prohibited.

More Information

• For more information about the DTA’s Photo and Video Policy, or to make arrangements for professional, commercial, or other similar photograph and/or video activities, please contact us at (218) 623-4314 or marketing@duluthtransit.com.

View the Equal Employment Opportunity Policy Statement

The Duluth Transit Authority (“DTA”) is committed to the communities we serve, and as an equal opportunity employer, strives to have a workforce that reflects and represents those communities.  This Equal Employment Opportunity Policy affirms that ATE Management of Duluth, managers of the Duluth Transit Authority, follows a policy that no person is unlawfully harassed or excluded from employment opportunities based on race, color, creed, religion, national origin, sex (including gender identity and sexual orientation and pregnancy), age, genetic information, disability, veteran status, marital status, status with regard to public assistance, familial status, membership or activity in a local commission, or other protected class in accordance with all applicable Equal Employment Opportunity laws, directives, and regulations of Federal, State, and Local governing bodies or agencies thereof, as may be amended from time to time.

 

The DTA will take affirmative action to ensure that all employment practices are free of such discrimination.  Such employment practices include, but are not limited to, hiring, upgrading, promotion, demotion, transfer, recruitment or recruitment advertising, selection, layoff, disciplinary action, termination, rates of pay or other forms of compensation, selection for training, including apprenticeship, use of facilities and treatment of employees.

 

The DTA will make reasonable accommodation in accordance with Federal, State and local requirements, including Minnesota Statutes 363 and 363A, as may be amended from time to time, to accommodate the physical or mental limitation of a qualified disabled person, or for employees to observe their religion, absent undue hardship.

 

The DTA will not tolerate harassment based on race, color, gender, national origin, religion, physical or mental disability, or veteran’s status, and shall take affirmative action to ensure that during employment, all employees are treated fairly and equitably, with dignity and respect.

 

DTA fully supports incorporation of the non-discrimination and affirmative action rules and regulations into its third-party contracts.  DTA will use its best efforts to afford minority and female business enterprises with the maximum practical opportunity to participate in the performance of subcontracts for construction projects the Agency engages in.

 

DTA will commit the necessary time and resources, both financial and human, to achieve the goals of this Equal Employment Opportunity Program.  This nondiscrimination program includes practices and procedures along with goals and timetables, and is available for inspection by any employee, applicant, individual or member of the public upon request.

 

The DTA General Manager maintains overall responsibility and accountability for the DTA’s compliance with the DTA’s EEO Policy and Program.  To ensure day to day management, Mr. Jason Arnold has been appointed as the DTA’s Equal Employment Opportunity Officer. The EEO Officer reports directly to the General Manager of the DTA and is supported by management and staff of the DTA.  Responsibilities of the EEO Officer include developing, implementing and communicating the EEO Policy internally and externally, and acting with the General Manager’s authority with all levels of management, labor unions and employees.  The General Manager of the DTA will regularly receive and review reports on the progress of the program from the EEO Officer.

 

DTA management and supervisory personnel share in the responsibility for implementing and monitoring this EEO Policy within their respective areas and are assigned specific tasks to ensure compliance is achieved.  The DTA will evaluate its manager’s and supervisor’s performance on the successful implementation of the DTA’s EEO policy in the same way the DTA assess their performance regarding other agency goals.

 

All applicants and employees have the right to file complaints alleging discrimination or harassment without fear of retaliation.  If any employee or applicant for employment should believe that he or she has been discriminated against or subjected to harassment or retaliation, they should contact the EEO Officer:

Tracy Christensen

EEO Officer

Duluth Transit Authority

2402 West Michigan Street

Duluth, MN  55806-1988

eeoofficer@duluthtransit.com

Phone:  218-623-4369

 

The DTA promotes the successful achievement of its Equal Opportunity/Affirmative Action goals, which will provide benefits to the DTA, and its contractors and subcontractors, through fuller utilization and development of previously underutilized human resources.  As General Manager, I am personally committed to a workplace that acts upon its daily responsibility to treat all applicants and employees with dignity and respect, as well as equitably under the guidelines of the DTA EEO Policy and Program.

 

This document is available in accessible format upon request.   To obtain paper copies of this policy or for information regarding accessible formats, please contact the DTA EEO Officer at 218-623-4369

Duluth Transit Authority Privacy Policy

Last Updated: November 8th, 2017

This privacy policy (“Policy”) describes how Duluth Transit Authority and its related companies (“Company”) collect, use and share personal information of consumer users of this website, www.duluthtransit.com (the “Site”). This Policy also applies to any of our other websites that post this Policy. This Policy does not apply to websites that post different statements.

What We Collect

We get information about you in a range of ways.

• Information You Give Us. We collect your‎ name, postal address, email address, phone number, fax number, username, password, demographic information (such as your gender and occupation) as well as other information you directly give us on our Site.
• Information We Get From Others. We may get information about you from other sources. We may add this to information we get from this Site.
• Information Automatically Collected. We automatically log information about you and your computer. For example, when visiting our Site, we log your computer operating system type, browser type, browser language, the website you visited before browsing to our Site, pages you viewed, how long you spent on a page, access times and information about your use of and actions on our Site.
• Cookies. We may log information using “cookies.” Cookies are small data files stored on your hard drive by a website. We may use both session Cookies (which expire once you close your web browser) and persistent Cookies (which stay on your computer until you delete them) to provide you with a more personal and interactive experience on our Site. This type of information is collected to make the Site more useful to you and to tailor the experience with us to meet your special interests and needs.

Use of Personal Information

We use your personal information as follows:

• We use your personal information to operate, maintain, and improve our sites, products, and services.
• We use your personal information to process and deliver contest entries and rewards.
• We use your personal information to respond to comments and questions and provide customer service.
• We use your personal information to send information including confirmations, invoices, technical notices, updates, security alerts, and support and administrative messages.
• We use your personal information to communicate about promotions, upcoming events, and other news about products and services offered by us and our selected partners.
• We use your personal information to link or combine user information with other personal information.
• We use your personal information to protect, investigate, and deter against fraudulent, unauthorized, or illegal activity.
• We use your personal information to provide and deliver products and services customers request.

Sharing of Personal Property

We may share your personal information as follows:

• We may share personal information with your consent. For example, you may let us share personal information with others for their own marketing uses. Those uses will be subject to their privacy policies.
• We may share personal information when we do a business deal, or negotiate a business deal, involving the sale or transfer of all or a part of our business or assets. These deals can include any merger, financing, acquisition, or bankruptcy transaction or proceeding.
• We may share personal information for legal, protection, and safety purposes.
  • We may share information to comply with laws.
  • We may share information to respond to lawful requests and legal processes.
  • We may share information to protect the rights and property of Duluth Transit Authority, our agents, customers, and others. This includes enforcing our agreements, policies, and terms of use.
  • We may share information in an emergency. This includes protecting the safety of our employees and agents, our customers, or any person.
• We may share information with those who need it to do work for us.

We may also share aggregated and/or anonymized data with others for their own uses.

Information Choices And Changes

Our marketing emails tell you how to “opt-out.” If you opt out, we may still send you non-marketing emails. Non-marketing emails include emails about your accounts and our business dealings with you.

You may send requests about personal information to our Contact Information below. You can request to change contact choices, opt-out of our sharing with others, and update your personal information.

You can typically remove and reject cookies from our Site with your browser settings. Many browsers are set to accept cookies until you change your settings. If you remove or reject our cookies, it could affect how our Site works for you.

Contact Information

We welcome your comments or questions about this privacy policy. You may also contact us at our address:

Duluth Transit Authority

2402 W Michigan Street

Duluth, Minnesota 55806

Changes To This Privacy Policy

We may change this privacy policy. If we make any changes, we will change the Last Updated date above.

Duluth Transit Authority Privacy Policy

I.           COMPLAINTS,  COMMENDATIONS, & REASONABLE MODIFICATION REQUEST

1. The DTA will accept complaints, commendations, reasonable modification request and suggestions about its ADA program in person or by phone, mail, or
2. The DTA ADA Coordinator (Director of Information Technology) will be responsible for dealing with complaints, commendations and reasonable modification request. Suggestions may be given to any member of the DTA staff or paratransit vendor.
3. All complaints, commendations, reasonable modification requests, and suggestions should be accompanied with the following information:

 

• Name, address and phone number (or person may remain anonymous),
• The date and time of the incident,
• Vehicle number (if applicable) and the dispatcher or driver name,
• Description of the complaint, commendation, or
• The Title VI complaint form can also be used ADA complaints as well as requests for reasonable accommodations/modifications.
• Advance notice of requests for reasonable accommodations/modifications is helpful for the DTA, however some requests may be completed on the spot. The bus operator may request assistance when asked about reasonable accommodations/modifications.

 

4. For phone calls or in person visits, the DTA will take down as much information as possible and prepare a statement. Prior to taking action on an alleged serious infraction, the patron will be required to sign the statement and be willing to testify, if necessary, against the individual who allegedly committed the
5. The DTA does respond to a rider’s need for reasonable modification even if the rider did not specifically use the term “reasonable modification” in their request for service. [49 CFR 37.169(b)(2)]
6. The DTA operating personnel may make reasonable modification determinations at the time of request. [49 CFR 169(b)(4)]. They may consult with others before making a decision.
7. The DTA will deny any reasonable modification request if it is determined that granting the request will: [49 CFR 169(c)]

 

• Fundamentally alter the nature of the DTA’s transit services, programs or activities;
• Create a direct threat to the health or safety of others
• Deprive others of their ability to use the services provided
• Create an undue financial or administrative burden for the DTA
• Services or programs can be used without the request for modification

 

8. DTA staff will not be allowed to learn the identity of any person giving a complaint

 

9. Patrons will not be allowed to learn what actions, if any, are taken against DTA employees as a result of a commendation or

 

10. Should a request be denied, the DTA will to the maximum extent possible, take any other actions to ensure that the individual with a disability receives the services. [49 CFR 37.169(e)]
11. The DTA will keep a log of all complaints of noncompliance with federal ADA regulations it receives on file for at least six (6) years. [49 CFR 121(b)]

Customers with disabilities may be accompanied by a service animal. ADA allows persons with disabilities to bring service animals on board transit vehicles. Service animals do not need special identification. A transit property has the right to determine ask if the animal is a service animal and what service it provides.

Service animals must be under the control of the owner. Should an animal be out of control or pose a threat to the safety or another person on board, the owner may be asked to exit the bus.

View the DTA DBE Policy Statement

Download the DTA DBE Program Plan 2019-2021

Protests will only be accepted from prospective bidders or offerors whose direct economic interest would be affected by the award of a contract or refusal to award a contract.  The General Manager will consider all such protests, whether submitted before or after the award of a contract. If oral objections are raised and the matter cannot be resolved to the satisfaction of the objector, a written protest shall be required before any further consideration is given.  Protest submissions should be concise, logically arranged, and clearly state the grounds for the protest. Protest must include at least the following information:

•       Name, address, and telephone number of protestor
•       Identification of the solicitation or contract number
•       A detailed statement of the legal and factual grounds of protest including copies of relevant documents
•       A statement as to what relief is requested

All protest documents received by the General Manager shall be stamped with date and time received and logged into a protest file folder with a copy to the Master File.

PROTESTS BEFORE AWARD

Protests before award must be submitted within the time as specified herein.  If the written protest is not received by the time specified, the evaluation process shall continue in the normal manner unless the Finance Director, upon investigation, finds that remedial action is desirable, in which event such action shall be taken.

The protests addressing the adequacy of Invitation for Bids, RFPs, including, without limitation, the pre-award procedure, the Instructions to Bidders or Proposers, General Terms and Conditions, Technical Specifications and Scope of Work, must be filed at the Finance Department no later than three days before the scheduled opening date or the bid or proposal.  Thereafter, such issues are deemed waived by all interested parties.

Notice of protest and the basis therefor shall be given to all bidders or proposers.  In addition, when a protest against the making of an award is received and the Finance Director determines to withhold the award pending disposition of the protest, the bidders or proposers whose bids or proposals might become eligible for award shall be requested, before expiration of the time for acceptance of their bids or proposals, to extend the time for acceptance (with consent of sureties, if any) to avoid the need for readvertising.

When a written protest against the making of an award is received, award shall not be made until five days after the matter is resolved, unless the General Manager determines that:

•       the items to be procured are urgently required; or
•       delivery or performance will be unduly delayed by failure to make the award promptly; or
• failure to make prompt award will otherwise cause undue harm to DTA or the State or the Federal Government.

      In the event the General Manager determines that the award is to be made during the five-day period or during the pendency of protest, he/she shall notify the FTA prior to make such award.  FTA preserves the right not to participate in such procurement.

If award is made, the Finance Director shall document the file to explain the need for an award, and shall give written notice of the decision to proceed with the award to the protestor and, as appropriate, to others concerned.

PROTESTS AFTER AWARD

Protests against award must be filed at the Finance Department within five days immediately following the award.  The Finance Director shall review the protests. The contractor shall be furnished with the notice of protest and the basis therefor.  Also, when it appears likely that an award may be invalidated and a delay in receiving the supplies or services is not prejudicial to DTA’s interest, the Finance Director shall inform the contractor that DTA will not be responsible if the award is set aside and that the contractor proceeds with performance at his/her own risk.

DECISION ON PROTEST

The General Manager shall render his/her decision in writing within 14 days from the receipt of the written protest and shall provide written notice of such decision to all interested parties.

Following an adverse decision by the General Manager, the protestor may file a protest with FTA.  For details, see FTA Circular 4220.1F, as amended, which states that FTA will only review protests regarding the alleged failure of a grantee (here, the DTA) to have written protest procedures or alleged failure to follow such procedures.

 

• DTA means the Duluth Transit Authority.
• Vendor means any individual or entity seeking to or doing business with the DTA within the scope of this Code, including, without limitation, contractors, consultants, suppliers, manufacturers seeking to act as the primary contracting party, officers and employees of the foregoing, as well as any subcontractors, subconsultants and subsuppliers at all lower tiers.
• Primary Contracting Party means the Vendor who intends to directly enter into or has a contract with the DTA.
• Gift means the transfer, without equivalent consideration, of anything of benefit, tangible or intangible, having more than a nominal value, including but not limited to, loans, forbearance, services, travel, gratuities of any kind, favors, money, meals, refreshments, entertainment, hospitality, promises, tickets to entertainment or sporting events, weekend trips, golf outings, loans of equipment, or other thing or benefit. A Gift need not be intended to influence or reward any individual or entity.
• Family Member means any person living in the same household as a DTA Employee, domestic partner, and any person who is a direct descendant of the DTA Employee’s Grandparents or the spouse of such descendant.
• Designated or Single Point of Contact means the individual designated to be a Vendor’s only contact with the DTA following the public advertisement of a solicitation or the issuance of a request for a bid, proposal, or quote for small purchases, until the award of a resulting contract.
• Contract means oral or written communication with any officer, member of the Board or other employee of the DTA, other than the Designated or Single Point of Contact, where it could be reasonable inferred that such contact was intended to influence, or could reasonably be expected to influence, the subject of the procurement.
• Employee means any officer or employee of the DTA and also includes any member of the Board of Directors.

Designated or Single Point of Contact

Each procurement solicitation issued by DTA will identify the DTA’s Designated or Point of Contact for that solicitation. Once the Designated or Single Point of Contact is established, the Vendor and any person or entity acting on the Vendor’s behalf, including without limitation, those providing compensated or uncompensated lobbying, advocacy, consulting or other services should ensure that its contacts with the DTA are in compliance with the requirements of the Code of Ethics.

Independent Bid Assessment

The Vendor will calculate the price(s) contained in any bid or proposal independently, without collusion, consultation, communication, or agreement with any other competing Vendor for the purpose of restricting competition.

Non-Communication of Bid

Unless otherwise required by law, the price(s) which the Vendor quotes in its bid or proposal will not knowingly be disclosed by the Vendor, directly or indirectly, to any other competing Vendor prior to the closing date for bids or proposals.

Bid Submission

The Vendor will not make any attempt to induce any other individual or entity to submit or not to submit a bid or proposal.

Zero Tolerance

No Vendor may offer or give any Gift, directly or indirectly, to a DTA Employee. Similarly, no Vendor may offer or give any Gift, directly or indirectly, to any family member of a DTA employee where such Gift is made because of the Vendor’s relationship with the DTA Employee.

Personal Relationships

Notwithstanding the foregoing, if a Vendor has a family or personal relationship with the employee, a gift that is unconnected with the employee’s duties at the DTA is not necessarily prohibited.

In determining whether the giving of an item was motivated by personal rather than business concerns, the following factors are considered:

1.     the history of the relationship between the donor and the recipient; and
2.     whether the item was purchased by the donor.

The giving of an item shall not be considered to be motivated by a family or personal relationship if the donor seeks to charge or deduct the value of the item as a business expense or seeks reimbursement from a client.

However, regardless of the family or personal relationship between a Vendor and an employee, a Gift is strictly forbidden where it is being given under circumstances where it can be reasonably be inferred that is was intended to influence the employee in the performance of his or her official duties.

Contingent Fees

The vendor will not employ or retain any individual or entity for the purpose of soliciting or securing a DTA contract upon any agreement or understanding for a commission, percentage, brokerage, or fee that is contingent or dependent upon the outcome of the procurement.

General

DTA Employees are subject to the restrictions set forth below in connection with negotiations for future employment with Vendors. It is expected that Vendors will approach such solicitation or negotiation with knowledge and understanding of these restrictions and will conduct themselves accordingly.

Restrictions

1.     Solicited – Employees are prohibited from soliciting an employment opportunity with a non-governmental individual or entity that has a specific pending matter before the Employee. Those Employees seeking employment outside of government with an entity or individual that has a specific pending matter before the Employee may only solicit an employment opportunity with the non-governmental individual or entity after waiting:
2.     30 days from the time the matter before the Employee is closed, or
3.     30 days from the time the Employee has no further involvement with the matter because of recusal or reassignment.
4.     Unsolicited – Employees who receive an unsolicited post-government employment-related communication from a non-governmental individual or entity that has a specific pending matter before the Employee cannot pursue employment with the non-governmental entity or individual unless the following occurs:
5.     they recuse themselves from the matter and any further official contact with the entity or individual and
6.     they wait 30 days from such recusal to enter into post-government employment communications with the entity or individual.
7.     Notification – Employees must promptly notify their supervisor and DT ethics officer of such outside employment related communications whether or not they intend to pursue the post-government employment opportunity. In the event of such notification of a solicitation and Employee’s desire to pursue the solicitation, the Employee’s supervisor is obligated to advise such supervisor’s superiors, in writing, up to and including the Department Head, of the Employee’s desire to pursue the solicitation and the managers intention to establish recusal procedures, if practical, to reassign the individual or refuse reassignment.
8.     Recusal – Recusal procedures shall be applied only if practical and in the best interests of the DTA. Reassignment shall be refused when the manager determines that reassignment would be impractical or inappropriate. The manager may not take action with respect to notifying the Employee of such manager’s decision until approved by the Department Head. If recusal procedures are not practical and in the best interests of the DTA, or if reassignment is refused, the Employee is prohibited from pursuing the solicitation.

Financial Interest

Neither the Vendor, nor any director, officer, principal, or partner thereof, as the case may be, may have a 10% or greater interest, nor shall the Vendor, nor any director, officer, principal, or partner thereof, acquire a 10% or greater interest, either directly or indirectly, in any company or firm that would conflict in any manner or degree with the performance of the DTA contract. The Vendor will not permit an employee having a 10% or greater interest, either directly or indirectly, in any company or firm that would conflict in any manner or degree with the performance of the DTA contract to be employed in the performance of the DTA contract.

Cooperation

The Vendor shall provide to the DTA, at the DTA’s request and upon such forms as may be furnished by the DTA, a disclosure of organizational, financial, contractual or other affiliations with any organization that has interests that may be substantially affected by the procurement solicitation. The Vendor shall cooperate in any inquiry or investigation undertaken by the DTA to determine whether any such affiliations present a conflict of interest.

Appearance Before DTA-One Year Bar

Except as approved by the DTA Board of Directors, a Vendor will not permit a former officer or employee of the DTA to appear or practice before the DTA that employed the officer or employee in relation to any case, proceeding or application or other matter before that agency, either prior to award or in the performance of a DTA contract, for a period of one year after termination of the officer’s or employee’s services with the agency.

Gift Certification

Every bid or proposal made to and every contract with the DTA above the small purchase threshold must contain a certification that no individual or entity has been or will be offered or given any Gift in connection with such bid or contract and that no conflicts of interest exist.

Distribution of Vendor Code of Ethics

Additionally, as a condition of being considered for the award of any contract above the DTA’s small purchase threshold, the Primary Contracting Party will be required to submit with its bid or proposal and include in its contract a further certification executed by an officer of that Party. This certification must attest that the Primary Contracting Party and all officers and personnel who may interact or have interacted with the DTA during the course of the procurement or contract have been provided with a copy of this Vendor Code of Ethics.

Subcontractor Certifications

The Primary Contracting Party will obtain similar certifications from all of its lower tier subcontractors, subconsultants and suppliers, as well as from any other subcontractors, subconsultants and suppliers from whom that Party is soliciting or has received proposals for work on a DTA contract. Receipt and retention of lower tier certifications by the Primary Contracting Party shall be subject to audit by the DTA.

Responsibility Determination

For violation of any provision of this Vendor Code of Ethics, the DTA may avail itself of every remedy in law or equity, or as agreed to by parties in any contract, including, but not limited to, declaring the Vendor non-responsible, debarred or in material breach of the contract.

Civil/Criminal Penalties

Additionally, violation of the Vendor Code of Ethics or a provision thereof may subject the Vendor to criminal or civil penalties under State or Federal law.

Reporting Gift Requests

Notwithstanding the provisions of Chapter 4 above, the Vendor is obligated to immediately report to the senior procurement official of the DTA and the DTA’s Director of Finance, any and all requests made to the Vendor by any officer, employee of the DTA, or member of the Board for a Gift.

Reporting Material Changes

The Vendor is under a continuing obligation to report any change in circumstances that materially affects any prior report to the DTA, including but not limited to disclosure of conflicts of interest.

Federal Transit Administration Contract Clauses

List of Clauses

Please note that not all clauses are applicable to all procurements.   Please contact the Duluth Transit Authority Procurement Department for questions regarding the applicability of specific clauses to specific purchases.

Federal Transit Administration

Contract Clauses

A.1 ACCESS TO RECORDS AND REPORTS

49 U.S.C. § 5325(g)

2 C.F.R. § 200.333

49 C.F.R. part 633

Applicability to Contracts

The record keeping and access requirements extend to all third party contractors and their contracts at every tier and subrecipients and subcontract at every tier.

Flow Down

The record keeping and access requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subcontracts at every tier.

Clause Language

1.   Records Retention.   The Contractor will retain, and will requires its subcontractors of all tiers to retain, complete and readily accessible records related in whole or in part to the contract; including, but not limited to, data, documents, reports, statistics, sub-agreements, leases, subcontracts, arrangements, other third party agreements of any type, and supporting materials related to those records.
2.  Retention Period. The Contractor agrees to comply with the record retention requirements in accordance with 2 C.F.R. § 200.333.  The Contractor shall maintain all books, records, accounts and reports required under this Contract for a period of not less than three (3) years after the date of termination or expiration of this Contract, except in the event of litigation or settlement of claims arising from the performance of this Contract, in which case records shall be maintained until the disposition of all such litigation claims or exceptions related thereto.  
3.  Access to Records.   The Contractor agrees to provide sufficient access to FTA and its contractors to inspect and audit records and information related to performance of this contract as reasonably may be required.
4.  Access to the Sites of Performance.   The Contractor agrees to permit FTA and its contractors access to the sites of performance under this Contract as reasonably may be required

End of Section

A.2  BONDING REQUIREMENTS

2 CFR §200.325

31 CFR Part 223

Applicability to Contracts

Bonds are required for all construction or facility improvement contracts and subcontracts exceeding the simplified acquisition threshold, currently $150,000. FTA may accept the bonding policy and requirements of the recipient if FTA has determined that the Federal interest is adequately protected. If such a determination has not been made, the following minimum requirements apply:

1. A bid guarantee from each bidder equivalent to five percent of the bid price. The “bid guarantee” must consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of the bid, execute such contractual documents as may be required within the time specified.
2. A performance bond on the part of the contractor for 100 percent of the contract price. A “performance bond” is one executed in connection with a contract to secure fulfillment of all the contractor’s obligations under such contract.
3. A payment bond on the part of the contractor for 100 percent of the contract price. A “payment bond” is one executed in connection with a contract to assure payment as required by law of all persons supplying labor and material in the execution of the work provided for in the contract.

Flow Down

These requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subcontracts at every tier that exceed the simplified acquisition threshold of $150,000.

Bond Requirements

Bidders shall furnish a bid guaranty in the form of a bid bond, or certified treasurer’s or cashier’s check issued by a responsible bank or trust company, made payable to the Duluth Transit Authority.  The amount of such guaranty shall be equal to 5% of the total bid price for bids over one hundred fifty thousand dollars ($150,000.00).

In submitting this bid, it is understood and agreed by Bidder that the Duluth Transit Authority reserves the right to reject any and all bids, or part of any bid, and it is agreed that the bid may not be withdrawn for a period of ninety (90) days subsequent to the opening of bids, without the written consent of the Duluth Transit Authority.

It is also understood and agreed that if the undersigned Bidder should withdraw any part of all of his bid within ninety (90) days after the bid opening without the written consent of the Duluth Transit Authority, or refuse or be unable to enter into this Contract as provided above, or refuse or be unable to furnish adequate and acceptable Performance and Payment Bonds, or refuse or be unable to furnish adequate and acceptable insurance as provided herein, it shall forfeit its bid guaranty to the extent the Duluth Transit Authority damages occasioned by such withdrawal, or refusal, or inability to enter into an agreement, or provide adequate security thereof.

It is further understood and agreed that to the extend the defaulting bidder’s bid guaranty shall prove inadequate to fully recompense the Duluth Transit Authority for any damages occasioned by default, then the undersigned Bidder agrees to indemnify the Duluth Transit Authority and pay over to the Duluth Transit Authority the difference between the bid guarantee and the Duluth Transit Authority’s total damages so as to make the Duluth Transit Authority whole.

The undersigned understands that any material alteration of any of the above or any of the material contained herein, other than that requested will render the bid unresponsive.

Performance Guarantee

A Performance Guarantee in the amount of one hundred percent (100%) of the Contract value for contracts over one hundred thousand dollars ($150,000) is required by the Duluth Transit Authority to ensure faithful performance of the Contract.   Either a Performance Bond or an Irrevocable Stand-By Letter of Credit shall be provided by the Contractor and shall remain in full force for the term of the Contract. The successful Bidder shall certify that it will provide the requisite Performance Guarantee to the Duluth Transit Authority within ten (10) business days from Contract execution.   The Duluth Transit Authority requires all Performance Bonds to be provided by a fully qualified surety company acceptable to the Duluth Transit Authority and listed as a company currently authorized under 31 C.F.R. Part 22 as possessing a Certificate of Authority as described hereunder. The Duluth Transit Authority may require additional performance bond protection when the contract price is increased.  The increase in protection shall generally equal one hundred percent (100%) of the increase in the Contract price. The Duluth Transit Authority may secure additional protection by directing the Contractor to increase the amount of the existing bond or to obtain and additional bond.

If the Bidder chooses to provide a Letter of Credit as its Performance Guarantee, the Bidder shall furnish with its bid, certification that an Irrevocable Stand-By Letter of Credit will be furnished should the Bidder become the successful Contractor.   The Bidder shall also provide a statement from the banking institution certifying that an Irrevocable Stand-By Letter of Credit for the action will be provided if the Contract is awarded to the Bidder. The Irrevocable Stand-By Letter of Credit will only be accepted by the Duluth Transit Authority if:

1.  A bank in good standing issues it.  The Duluth Transit Authority will not accept a Letter of Credit from an entity other than a bank.
2.  It is in writing and signed by the issuing bank.
3.  It conspicuously states that it is an irrevocable, non-transferable, “standby” Letter of Credit.
4.   The Duluth Transit Authority is identified as the Beneficiary.
5.  It is in an amount equal to 100% of the Contract value.  This amount must be in U.S. dollars.
6.  The effective date of the Letter of Credit is the same as the effective date of the Contract.
7.  The expiration date of the Letter of Credit coincides with the terms of this Contract.
8.  It indicates that it is being issued in order to support the obligation of the Contractor to perform under the Contract.   It must specifically reference the Contract between the Duluth Transit Authority and the Contractor for the work stipulated herein.

The issuing bank’s obligation to pay will arise upon the presentation of the original Letter of Credit and a certificate and draft similar to the forms attached herein to the issuing bank’s representative at a location and time to be determined by the parties.  This documentation will indicate that the Contractor is in default under the Contract.

Payment Bonds

A Labor and Materials Payment Bond equal to the full value of the Contract must be furnished by the Contractor to the Duluth Transit Authority as security for payment by the Contractor and subcontractors for labor, materials, and rental of equipment.   The bond may be issued by a fully qualified surety company acceptable to the Duluth Transit Authority and listed as a company currently authorized under 31 CFR Part 223 as possessing a Certificate of Authority as described thereunder.

Sample Bond Certifications

Performance Guarantee Certification

The undersigned hereby certifies that the Bidder shall provide a Performance Guarantee in accordance with the Specifications.

Designate below which form of Performance Guarantee shall be provided: (example only)

Performance Bond

Irrevocable Stand-By-Letter of Credit

BIDDER”S NAME:                                                                                      

Authorized Signature:                                                                                                                     

Title:                                                                                                                                    

Performance Bond  (example)

KNOW ALL MEN BY THESE PRESENTS: that _______________________________________(insert full name and address and legal title of Contractor) as Principal, hereinafter called Contractor, and __________________________________________________

(insert full name and address or legal title of Surety) as Surety, hereinafter called Surety, are held and firmly bound unto the Duluth Transit Authority as Obligee, hereinafter called DTA, in the amount of _______ dollars ($) for the payment whereof Contractor and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

Whereas, Contractor has by written agreement dated _____, entered into a contract with the Duluth Transit Authority for Contract Number ____________, which contract is by reference made a part hereof, and is hereinafter referred to as the Contract.

NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Contractor shall promptly and faithfully perform said Contract, then this obligation shall be null and void; otherwise it shall remain I full force and effect.

The Surety hereby waives notice of any alteration or extension of time made by the Duluth Transit Authority.

Whenever Contractor shall be, and is declared by the Duluth Transit Authority to be in default under the Contract, the Duluth Transit Authority have performed the Duluth Transit Authority’s obligations thereunder, the Surety may promptly remedy the default, or shall promptly:

1.  Complete the Contract in accordance with its terms and conditions, or
2.  Obtain a bid or bids for completing the Contract in accordance with its terms and conditions, and upon determination by Surety of the lowest responsible bidder, or if the Duluth Transit Authority elects, upon determination by the Duluth Transit Authority and Surety jointly of the lowest responsible bidder, arrange for a contract between such bidder and the Duluth Transit Authority, and make available as Work progresses (even though there should be a default or a succession of defaults under the contract or contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the contract price; but not exceeding, the amount set forth in the first paragraph hereof.   The term “balance of the contract price” as used in this paragraph, shall mean the total amount payable by the Duluth Transit Authority to the Contractor and any amendments thereto, less the amount properly paid by the Duluth Transit Authority to the Contractor.

Any suit under this bond must be instituted before the expiration of two (2) years from the date on which final payment under the Contract falls due.

No right of action shall accrue on this bond to or for the use of any person or corporation other than the Duluth Transit Authority or the heirs, executors, administrators or successors of the Duluth Transit Authority.

Signed and sealed this _____ day of ________________.

PRINCIPAL

_____(example)_______________________________(seal)

____________________________________(title)

WITNESS                                                                 SURETY

_____(example)__________________________________  (SEAL)

_______________________________________(Title)

Attach hereto proof of authority of officers or agents to sign bond.

Irrevocable Stand-By Letter of Credit Certificate (example)

The undersigned states that he/she is ______________________(Title) of the ______________________(Name of Beneficiary), known as the “Beneficiary” and hereby certifies on behalf of the Beneficiary to _______________________(Name of Issuing Bank) known as the “Bank” with Reference to Irrevocable Standby Letter of Credit No._______________ Issued by the Bank (“Letter of Credit”) that:

1.  The undersigned is duly authorized to execute and deliver this certificate on behalf of the Beneficiary.
2.  The Beneficiary is making a drawing under the Letter of Credit.
3.  An Event of Default has occurred under Contract number ________________
4.  The amount of the draft presented with this certificate does not exceed the total maximum amount drawable today under the Letter of Credit as provided therein.

IN WITNESS WHEREOF, this certificate is executed this _____________day of ______________.

(NAME OF BENEFICIARY)

By:__(example)___________________________

ITS:____________________________

Bank Draft   (example)

FOR VALUE RECEIVED

Pay on presentment to ____________________(Name of Beneficiary) the sum of __________________dollars ($)

Charge the Account of ___________________________(Name of Issuing Bank) Irrevocably Standby Letter of Credit No._________, dated _____________________.

To _____________________________(Name of Issuing Bank)

NAME OF BENEFICIARY

By____(example)___________________________

Its_______________________________

End of Section

A.3 BUS TESTING

49 U.S.C. § 5318(e)

49 C.F.R. part 665

Applicability to Contracts

The Bus Testing requirements pertain only to the purchase or lease of any new bus model, or any bus model with a major change in configuration or components to be acquired or leased with funds obligated by FTA. Recipients are responsible for determining whether a vehicle to be acquired requires full or partial testing or has already satisfied the bus testing requirements by achieving a passing test score in accordance with 49 C.F.R. part 665. Recipients must certify compliance with FTA’s bus testing requirements in all grant applications for FTA funding for bus procurements.

Flow Down

There is no flow down requirement for Bus Testing.

Model Clause/Language

The operator of the bus testing facility is required to provide the resulting test report to the entity that submits the bus for testing. The manufacturer or dealer of a new bus model or a bus produced with a major change in component or configuration is required to provide a copy of the corresponding full bus testing report and any applicable partial testing report(s) to the recipient during the point in the procurement process specified by the recipient, but in all cases before final acceptance of the first bus by the recipient. The complete bus testing reporting requirements are provided in 49 C.F.R. § 665.11. Although no specific certification and bus testing language in required, recipients can draw on the following language for inclusion in their federally funded procurements.

Bus Testing

The Contractor [Manufacturer] agrees to comply with the Bus Testing requirements under 49 U.S.C. 5318(e) and FTA’s implementing regulation at 49 C.F.R. part 665 to ensure that the requisite testing is performed for all new bus models or any bus model with a major change in configuration or components, and that the bus model has achieved a passing score. Upon completion of the testing, the contractor shall obtain a copy of the bus testing reports from the operator of the testing facility and make that report(s) publicly available prior to final acceptance of the first vehicle by the recipient.

End of Section

A.4 BUY AMERICA REQUIREMENTS

49 U.S.C. 5323(j)

49 C.F.R. part 661

Applicability to Contracts

FTA’s Buy America law and regulations apply to projects that involve the purchase of more than $150,000 of iron, steel, manufactured goods, or rolling stock to be delivered to the recipient to be used in an FTA assisted project. FTA cautions that its Buy America regulations are complex. Recipients can obtain detailed information on FTA’s Buy America regulation at: The Federal Transit Administration’s Buy America website.

Flow Down

The Buy America requirements flow down from FTA recipients and subrecipients to first tier contractors, who are responsible for ensuring that lower tier contractors and subcontractors are in compliance.

Model Clause/Language

Buy America

The Contractor agrees to comply with 49 U.S.C. 5323 (j) and 49 C.F.R. Part 661, which provide that Federal funds may not be obligated unless all steel, iron and manufactured products used in FTA funded projects are produced in the United States, unless a waiver has been granted by the FTA or the product is subject to a general waiver.   General waivers are listed in 49 C.F.R. §661.7. Separate requirements for rolling stock are set out at 49 U.S.C. 5323(j)(2)(C) and 49 C.F.R. §661.11.

The Bidder or Offeror must submit to the Duluth Transit Authority the appropriate Buy America certification below with its bid or offer.  Bids or offers that are not accompanied by a completed Buy America certification will be rejected as nonresponsive.

In accordance with 49 C.F.R. § 661.6, for the procurement of steel, iron or manufactured products, use the certifications below.

Certificate of Compliance with Buy America Requirements

The bidder or offeror hereby certifies that it will comply with the requirements of 49 U.S.C. 5323(j)(1), and the applicable regulations in 49 C.F.R. part 661.

Date: _____________________________________________________________________

Signature: _________________________________________________________________

Company: _________________________________________________________________

Name: ____________________________________________________________________

Title: _____________________________________________________________________

Certificate of Non-Compliance with Buy America Requirements

The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C. 5323(j), but it may qualify for an exception to the requirement pursuant to 49 U.S.C. 5323(j)(2), as amended, and the applicable regulations in 49 C.F.R. § 661.7.

Date: _____________________________________________________________________

Signature: _________________________________________________________________

Company: _________________________________________________________________

Name: ____________________________________________________________________

Title: _____________________________________________________________________

In accordance with 49 C.F.R. § 661.12, for the procurement of rolling stock (including train control, communication, and traction power equipment) use the following certifications:

Certificate of Compliance with Buy America Rolling Stock Requirements

The bidder or offeror hereby certifies that it will comply with the requirements of 49 U.S.C. 5323(j), and the applicable regulations of 49 C.F.R. § 661.11.

Date: _____________________________________________________________________

Signature: ___________________________________________________________________

Company: ___________________________________________________________________

Name: ______________________________________________________________________

Title: ________________________________________________________________________

Certificate of Non-Compliance with Buy America Rolling Stock Requirements

The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C. 5323(j), but may qualify for an exception to the requirement consistent with 49 U.S.C. 5323(j)(2)(C), and the applicable regulations in 49 C.F.R. § 661.7.

Date: ________________________________________________________________________

Signature: ____________________________________________________________________

Company: ____________________________________________________________________

Name: _______________________________________________________________________

Title: _________________________________________________________________________

End of Section

A.5 CARGO PREFERENCE REQUIREMENTS

46 U.S.C. § 55305

46 C.F.R. part 381

Applicability to Contracts

The Cargo Preference Act of 1954 requirements applies to all contracts involving equipment, materials, or commodities that may be transported by ocean vessels.

Flow Down

The Cargo Preference requirements apply to all contracts involved with the transport of equipment, material, or commodities by ocean vessel.

Model Clause/Language

The Maritime Administration (MARAD) regulations at 46 C.F.R. § 381.7 contain suggested contract clauses. Recipients can draw on the following language for inclusion in their federally funded procurements.

Cargo Preference – Use of United States-Flag Vessels

The contractor 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 loading for shipments originating outside the United States, a legible copy of a rated, “on-board” commercial ocean bill-of-lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the contractor in the case of a subcontractor’s bill-of-lading.); and
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.

End of Section

A.6 CHARTER SERVICE

49 U.S.C. 5323(d) and (r)

49 C.F.R. part 604

Applicability to Contracts

The Charter Bus requirements apply to contracts for operating public transportation service.

Flow Down Requirements

The Charter Bus requirements flow down from FTA recipients and subrecipients to first tier service contractors.

Model Clause/Language

The relevant statutes and regulations do not mandate any specific clause or language. Recipients can draw on the following language for inclusion in their federally funded procurements.

Charter Service

The contractor agrees to comply with 49 U.S.C. 5323(d), 5323(r), and 49 C.F.R. 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 as permitted under:

1. Federal transit laws, specifically 49 U.S.C. § 5323(d);
2. FTA regulations, “Charter Service,” 49 C.F.R. part 604;
3. Any other federal Charter Service regulations; or
4. Federal guidance, except as FTA determines otherwise in writing.

The contractor agrees that if it engages in a pattern of violations of FTA’s Charter Service regulations, FTA may require corrective measures or impose remedies on it. These corrective measures and remedies may include:

1. Barring it or any subcontractor operating public transportation under its Award that has provided prohibited charter service from receiving federal assistance from FTA;
2. Withholding an amount of federal assistance as provided by Appendix D to part 604 of FTA’s Charter Service regulations; or
3. Any other appropriate remedy that may apply.

The contractor should also include the substance of this clause in each subcontract that may involve operating public transit services.

End of Section

A.7 CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT

42 U.S.C. §§ 7401 – 7671q

33 U.S.C. §§ 1251-1387

2 C.F.R. part 200, Appendix II (G)

Applicability to Contracts

The Clean Air and Clean Water Act requirements apply to each contract and subcontract exceeding $150,000.

Flow Down

The Clean Air Act and Federal Water Pollution Control Act requirements extend to all third-party contractors and their contracts at every tier and subrecipients and subcontracts at every tier.

Model Clause/Language

The Contractor agrees:

1.  It will not use any violating facilities
2.  It will report the use of facilities placed on or likely to be placed on the U.S. EPA “List of Violating Facilities;”
3.  It will report violations of use of prohibited facilities to FTA; and
4.  It will comply with the inspection and other requirements of the Clean Air Act, as amended, (42 U.S.C. §§7401-7671q); and the Federal Water Pollution Control Act as amended (33 U.S.C. §§1251-1387.)

End of Section

A.8 CIVIL RIGHTS LAWS AND REGULATIONS

Applicability to Contracts

The following Federal Civil Rights laws and regulations apply to all contracts.

1. Federal Equal Employment Opportunity (EEO) Requirements. These include, but are not limited to: a. Nondiscrimination in Federal Public Transportation Programs. 49 U.S.C. § 5332, covering projects, programs, and activities financed under 49 U.S.C. Chapter 53, prohibits discrimination on the basis of race, color, religion, national origin, sex (including sexual orientation and gender identity), disability, or age, and prohibits discrimination in employment or business opportunity.
2. Prohibition against Employment Discrimination. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and Executive Order No. 11246, “Equal Employment Opportunity,” September 24, 1965, as amended, prohibit discrimination in employment on the basis of race, color, religion, sex, or national origin.
3. Nondiscrimination on the Basis of Sex. Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. § 1681 et seq. and implementing Federal regulations, “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” 49 C.F.R. part 25 prohibit discrimination on the basis of sex.
4. Nondiscrimination on the Basis of Age. The “Age Discrimination Act of 1975,” as amended, 42 U.S.C. § 6101 et seq., and Department of Health and Human Services implementing regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, prohibit discrimination by participants in federally assisted programs against individuals on the basis of age. The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and Equal Employment Opportunity Commission (EEOC) implementing regulations, “Age Discrimination in Employment Act,” 29 C.F.R. part 1625, also prohibit employment discrimination against individuals age 40 and over on the basis of age.
5. Federal Protections for Individuals with Disabilities. The Americans with Disabilities Act of 1990, as amended (ADA), 42 U.S.C. § 12101 et seq., prohibits discrimination against qualified individuals with disabilities in programs, activities, and services, and imposes specific requirements on public and private entities. Third party contractors must comply with their responsibilities under Titles I, II, III, IV, and V of the ADA in employment, public services, public accommodations, telecommunications, and other provisions, many of which are subject to regulations issued by other Federal agencies.

Flow Down

The Civil Rights requirements flow down to all third party contractors and their contracts at every tier.

Model Clause/Language

Every federally funded contract must include an Equal Opportunity clause. Recipients can draw on the following language for inclusion in their federally funded procurements.

Civil Rights and Equal Opportunity

The Duluth Transit Authority is an Equal Opportunity Employer. As such, the Duluth Transit Authority agrees to comply with all applicable Federal civil rights laws and implementing regulations. Apart from inconsistent requirements imposed by Federal laws or regulations, the Duluth Transit Authority agrees to comply with the requirements of 49 U.S.C. § 5323(h) (3) by not using any Federal assistance awarded by FTA to support procurements using exclusionary or discriminatory specifications.

Under this Agreement, the Contractor shall at all times comply with the following requirements and shall include these requirements in each subcontract entered into as part thereof.

1. Nondiscrimination. In accordance with Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, sex, disability, or age. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue.
2. Race, Color, Religion, National Origin, Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq., and Federal transit laws at 49 U.S.C. § 5332, the Contractor 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. chapter 60, and Executive Order No. 11246, “Equal Employment Opportunity in Federal Employment,” September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, national origin, or sex (including sexual orientation and gender identity). Such action shall include, but not be limited to, the following: employment, promotion, 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 Contractor agrees to comply with any implementing requirements FTA may issue.
3. Age. In accordance with the Age Discrimination in Employment Act, 29 U.S. C. §§ 621-634, U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations, “Age Discrimination in Employment Act,” 29 C.F.R. part 1625, the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S. Health and Human Services regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.
4. Disabilities. In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against individuals on the basis of disability. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. Discrimination in Employment Act,” 29 C.F.R. part 1625, also prohibit employment discrimination against individuals age 40 and over on the basis of age.
5. Federal Protections for Individuals with Disabilities. The Americans with Disabilities Act of 1990, as amended (ADA), 42 U.S.C. § 12101 et seq., prohibits discrimination against qualified individuals with disabilities in programs, activities, and services, and imposes specific requirements on public and private entities. Third party contractors must comply with their responsibilities under Titles I, II, III, IV, and V of the ADA in employment, public services, public accommodations, telecommunications, and other provisions, many of which are subject to regulations issued by other Federal agencies.

End of Section

A.9 DISADVANTAGED BUSINESS ENTERPRISE (DBE)

49 C.F.R. part 26

Background and Applicability

The Disadvantaged Business Enterprise (DBE) program applies to FTA recipients receiving planning, capital and/or operating assistance that will award prime contracts (excluding transit vehicle purchases) exceeding $250,000 in FTA funds in a Federal fiscal year. All FTA recipients above this threshold must submit a DBE program and overall triennial goal for DBE participation. The overall goal reflects the anticipated amount of DBE participation on DOT-assisted contracts. As part of its DBE program, FTA recipients must require that each transit vehicle manufacturer (TVM), as a condition of being authorized to bid or propose on FTA assisted transit vehicle procurements, certify that it has complied with the requirements of 49 C.F.R. § 26.49. Only those transit vehicle manufacturers listed on FTA’s certified list of Transit Vehicle Manufacturers, or that have submitted a goal methodology to FTA that has been approved or has not been disapproved at the time of solicitation, are eligible to bid.

FTA recipients must meet the maximum feasible portion of their overall goal using race-neutral methods. Where appropriate, however, recipients are responsible for establishing DBE contract goals on individual DOT-assisted contracts. FTA recipients may use contract goals only on those DOT-assisted contracts that have subcontracting responsibilities. See 49 C.F.R. § 26.51(e). Furthermore, while FTA recipients are not required to set a contract goal on every DOT-assisted contract, they are responsible for achieving their overall program goals by administering their DBE program in good faith.

FTA recipients and third party contractors can obtain information about the DBE program at the following website locations:

Federal Transit Administration website Disadvantaged Business Enterprise page

Department of Transportation website Disadvantaged Business Enterprise Program

Flow Down

The DBE contracting requirements flow down to all third-party contractors and their contracts at every tier.  It is the recipient’s and prime contractor’s responsibility to ensure the DBE requirements are applied across the board to all subrecipients/contractors/subcontractors.  Should a subcontractor fail to comply with DBE regulations, FTA would look to the recipient to make sure it intervenes to monitor compliance. The onus for compliance is on the recipient.  For all DOT-assisted contracts, each FTA recipient must include assurance that third party contractors will comply with the DTA program requirements of 49 C.F.R Part 26, when applicable. The following contract clause is required in all DOT-assisted prime and subcontracts.

Clause/Language

For all DOT-assisted contracts, each FTA recipient must include assurances that third party contractors will comply with the DBE program requirements of 49 C.F.R. part 26, when applicable. The following contract clause is required in all DOT-assisted prime and subcontracts:

Contractor Assurance

The contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Contract.  The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as Duluth Transit Authority deems appropriate, which may include, but is not limited to:

1. Withholding monthly progress payments
2. Assessing sanctions;
3.  Liquidated damages; and/or
4.  Disqualifying the contractor from future bidding as non-responsible.  49 C.F.R. §26.13(b).

Further, recipients must establish a contract clause to require prime contractors to pay subcontractors for satisfactory performance of their contracts no later than 30 days from receipt of each payment the recipient makes to the prime contractor. 49 C.F.R. § 26.29(a). Finally, for contracts with defined DBE contract goals, each FTA recipient must include in each prime contract a provision stating that the contractor shall utilize the specific DBEs listed unless the contractor obtains the recipient’s written consent; and that, unless the recipient’s consent is provided, the contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE. 49 C.F.R. § 26.53(f) (1).

As an additional resource, recipients can draw on the following language for inclusion in their federally funded procurements.

It is the policy of the Duluth Transit Authority and the United States Department of Transportation (“DOT”) that Disadvantaged Business Enterprises (“DBE’s”), as defined herein and in the Federal regulations published at 49 C.F.R. Part 26, shall have an equal opportunity to participate in DOT-assisted contracts.  It is also the policy of the Duluth Transit Authority to:

1.  ensure nondiscrimination in the award and administration of DOT-assisted contracts;
2.  Create a level playing field on which DBE’s can compete fairly for DOT-assisted contracts;
3.  Ensure that the DBE program is narrowly tailored in accordance with applicable law;
4.  Ensure that only firms that fully meet 49 C.F.R. Part 26 eligibility standards are permitted to participate as DBEs;
5.  Help remove barriers to the participation of DBEs in DOT assisted contracts;
6.  To promote the use of DBEs in all types of federally assisted contracts and procurement activities; and
7.  Assist in the development of firms that can compete successfully in the marketplace outside the DBE program.

This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26.  Therefore, the Contractor must satisfy the requirements for DBE participation as set forth herein.   These requirements are in addition to all other equal opportunity employment requirements of this Contract.  The Duluth Transit Authority shall make all determinations with regard to whether or not a Bidder/Offeror is in compliance with the requirements stated herein.  In assessing compliance, the Duluth Transit Authority may consider during its review of the Bidder/Offeror’s submission package, the Bidder/Offeror/s documented history of non-compliance with DBE requirements on previous contracts with the Duluth Transit Authority.   

DBE Participation

For purposes of this Contract, the Duluth Transit Authority will only accept DBEs who are:

1.  Certified at the time of the bid opening or proposal evaluation by the Unified Certification Program; or
2.  An out of state firm who has been certified by either a local government, state government or Federal government entity authorized to certify DBE status or an agency whose DBE certification process has received FTA approval; or
3.  Certified by another agency approved by the Duluth Transit Authority.

DBE Participation Goal (only for those contracts with a DBE participation goal)

The DBE participation goal for this Contract is set at ______________%.   This goal represents those elements of work under this Contract performed by qualified Disadvantaged Business Enterprises for amounts totaling not less than __________% of the total Contract price.  Failure to meet the stated goal at the time of proposal submission may render the Bidder/Offeror non-responsive.

Proposed Submission

Each Bidder/Offeror, as part of its submission, shall supply the following information:

1. A completed DBE Utilization Form (see below) that indicates the percentage and dollar value of the total bid/contract amount to be supplied by Disadvantaged Business Enterprises under this Contract.
2. A list of those qualified DBE’s with whom the Bidder/Offeror intends to contract for the performance of portions of the work under the Contract, the agreed price to be paid to each DBE for work, the Contract items or parts to be performed by each DBE, a proposed timetable for the performance or delivery of the Contract item, and other information as required by the DBE Participation Schedule (see below). No work shall be included in the Schedule that the Bidder/Offeror has reason to believe the listed DBE will subcontract, at any tier, to other than another DBE. If awarded the Contract, the Bidder/Offeror may not deviate from the DBE Participation Schedule submitted in response to the bid. Any subsequent changes and/or substitutions of DBE firms will require review and written approval by the Duluth Transit Authority.
3. An original DBE Letter of Intent (see below) from each DBE listed in the DBE Participation Schedule.
4. An original DBE Affidavit (see below) from each DBE stating that there has not been any change in its status since the date of its last certification.

Good Faith Efforts

If the Bidder/Offeror is unable to meet the goal set forth above (DBE Participation Goal), the Duluth Transit Authority will consider the Bidder/Offeror’s documented good faith efforts to meet the goal in determining responsiveness. The types of actions that the Duluth Transit Authority will consider as part of the Bidder/Offeror’s good faith efforts include, but are not limited to, the following:

1. Documented communication with the Duluth Transit Authority’s DBE Coordinator (questions of IFB or RFP requirements, subcontracting opportunities, appropriate certification, will be addressed in a timely fashion);
2. Pre-bid meeting attendance. At the pre-bid meeting, the Duluth Transit Authority generally informs potential Bidder/Offeror’s of DBE subcontracting opportunities;
3. The Bidder/Offeror’s own solicitations to obtain DBE involvement in general circulation media, trade association publication, minority-focus media and other reasonable and available means within sufficient time to allow DBEs to respond to the solicitation;
4. Written notification to DBE’s encouraging participation in the proposed Contract; and
5. Efforts made to identify specific portions of the work that might be performed by DBE’s.

The Bidder/Offeror shall provide the following details, at a minimum, of the specific efforts it made to negotiate in good faith with DBE’s for elements of the Contract:

1. The names, addresses, and telephone numbers of DBE’s that were contacted;
2. A description of the information provided to targeted DBE’s regarding the specifications and bid proposals for portions of the work;
3. Efforts made to assist DBE’s contacted in obtaining bonding or insurance required by the Bidder or the Authority.

Further, the documentation of good faith efforts must include copies of each DBE and non-DBE subcontractor quote submitted when a non-DBE subcontractor was selected over a DBE for work on the contract. 49 C.F.R. § 26.53(b) (2) (VI). In determining whether a Bidder has made good faith efforts, the Duluth Transit Authority may take into account the performance of other Bidders in meeting the Contract goals. For example, if the apparent successful Bidder failed to meet the goal, but meets or exceeds the average DBE participation obtained by other Bidders, the Duluth Transit Authority may view this as evidence of the Bidder having made good faith efforts.

Administrative Reconsideration

Within five (5) business days of being informed by the Duluth Transit Authority that it is not responsive or responsible because it has not documented sufficient good faith efforts, the Bidder/Offeror may request administrative reconsideration. The Bidder should make this request in writing to the Duluth Transit Authority’s DBE Officer, Carla Montgomery. The DBE Officer will forward the Bidder/Offeror’s request to a reconsideration official who will not have played any role in the original determination that the Bidder/Offeror did not document sufficient good faith efforts.

As part of this reconsideration, the Bidder/Offeror will have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate good faith efforts to do so. The Bidder/Offeror will have the opportunity to meet in person with the assigned reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do so. The Duluth Transit Authority will send the Bidder/Offeror a written decision on its reconsideration, explaining the basis for finding that the Bidder/Offeror did or did not meet the goal or make adequate good faith efforts to do so. The result of the reconsideration process is not administratively appealable to the Department of Transportation.

Termination of DBE Subcontractor

The Contractor shall not terminate the DBE subcontractor(s) listed in the DBE Participation Schedule (see below) without the s prior written consent. The Duluth Transit Authority may provide such written consent only if the Contractor has good cause to terminate the DBE firm. Before transmitting a request to terminate, the Contractor shall give notice in writing to the DBE subcontractor of its intent to terminate and the reason for the request. The Contractor shall give the DBE five days to respond to the notice and advise of the reasons why it objects to the proposed termination. When a DBE subcontractor is terminated or fails to complete its work on the Contract for any reason, the Contractor shall make good faith efforts to find another DBE subcontractor to substitute for the original DBE and immediately notify the Duluth Transit Authority in writing of its efforts to replace the original DBE. These good faith efforts shall be directed at finding another DBE to perform at least the same amount of work under the Contract as the DBE that was terminated, to the extent needed to meet the Contract goal established for this procurement. Failure to comply with these requirements will be in accordance with Section 8 below (Sanctions for Violations).

Continued Compliance

The Duluth Transit Authority shall monitor the Contractor’s DBE compliance during the life of the Contract. In the event this procurement exceeds ninety (90) days, it will be the responsibility of the Contractor to submit quarterly written reports to the Duluth Transit Authority that summarize the total DBE value for this Contract. These reports shall provide the following details:

• DBE utilization established for the Contract;
• Total value of expenditures with DBE firms for the quarter;
• The value of expenditures with each DBE firm for the quarter by race and gender;
• Total value of expenditures with DBE firms from inception of the Contract; and
• The value of expenditures with each DBE firm from the inception of the Contract by race and gender.

Reports and other correspondence must be submitted to the DBE Coordinator with copies provided to the Duluth Transit Authority DBE Officer, Carla Montgomery and a copy to the Duluth Transit Authority Procurement Manager. Reports shall continue to be submitted quarterly until final payment is issued or until DBE participation is completed.

The successful Bidder/Offeror shall permit:

• The Duluth Transit Authority to have access to necessary records to examine information as the Duluth Transit Authority deems appropriate for the purpose of investigating and determining compliance with this provision, including, but not limited to, records of expenditures, invoices, and contract between the successful Bidder/Offeror and other DBE parties entered into during the life of the Contract.
• The authorized representative(s) of the Duluth Transit Authority, the U.S. Department of Transportation, the Comptroller General of the United States, to inspect and audit all data and record of the Contractor relating to its performance under the Disadvantaged Business Enterprise Participation provision of this Contract.
• All data/record(s) pertaining to DBE shall be maintained as stated herein.

Sanctions for Violations

If at any time the Duluth Transit Authority has reason to believe that the Contractor is in violation of its obligations under this Agreement or has otherwise failed to comply with terms of this Section, the Duluth Transit Authority may, in addition to pursuing any other available legal remedy, commence proceedings, which may include but are not limited to, the following:

• Suspension of any payment or part due the Contractor until such time as the issues concerning the Contractor’s compliance are resolved; and
• Termination or cancellation of the Contract, in whole or in part, unless the successful Contractor is able to demonstrate within a reasonable time that it is in compliance with the DBE terms stated herein.

DBE UTILIZATION FORM

The undersigned Bidder/Offeror has satisfied the requirements of the solicitation in the following manner (please check the appropriate space):

_______ The Bidder/Offer is committed to a minimum of ________% DBE utilization on this contract.

________ The Bidder/Offeror (if unable to meet the DBE goal of %) is committed to a minimum of ________% DBE utilization on this contract and submits documentation demonstrating good faith efforts.

DBE PARTICIPATION SCHEDULE

The Bidder/Offeror shall complete the following information for all DBE’s participating in the contract that comprises the DBE Utilization percent stated in the DBE Utilization Form. The Bidder/Offeror shall also furnish the name and telephone number of the appropriate contact person should the Authority have any questions in relation to the information furnished herein.

DBE IDENTIFICATION AND INFORMATION FORM

Name and Address	Name and Telephone Number	Percent (Of Total Contract Value)	Of Work To Be Performed	Race and Gender of Firm

The contractor must promptly notify Duluth Transit Authority, whenever a DBE subcontractor performing work related to this contract is terminated or fails to complete its work, and must make good faith efforts to engage another DBE subcontractor to perform at least the same amount of work.  The contractor may not terminate any DBE subcontractor and perform that work through its own forces or those of an affiliate without prior written consent of Duluth Transit Authority.

The contractor is required to pay its subcontractors performing work related to this contract for satisfactory performance of that work no later than 30 days after the contractor’s receipt of payment for that work from the Duluth Transit Authority or in accordance with state statutes, whichever if more restrictive.  In addition, the contractor is required to return any retainage payments to those subcontractors within 30 days (or in accordance with state law, whichever is more restrictive) after the subcontractor’s work related to this contract is satisfactorily completed.

End of Section

A.10 EMPLOYEE PROTECTIONS

49 U.S.C. § 5333(a);  40 U.S.C. §§ 3141 – 3148;  29 C.F.R. part 5

18 U.S.C. § 874;  29 C.F.R. part 3

40 U.S.C. §§3701-3708;  29 C.F.R. part 1926

Applicability to Contracts

Certain employee protections apply to all FTA funded contracts with particular emphasis on construction related projects.

Flow Down

These requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subcontractors at every tier.   The Davis-Bacon Act and the Copeland “Anti-Kickback” Act apply to all prime construction, alteration or repair contracts in excess of $2,000. The Contract Work Hours and Safety Standards Act apply to all FTA funded contracts in excess of $100,000 that involve the employment of mechanics or laborers.

Model Clause/Language

Prevailing Wage and Anti-Kickback

For all prime construction, alteration or repair contracts in excess of $2,000 awarded by FTA, the Contractor shall comply with the Davis-Bacon Act and the Copeland “Anti-Kickback” Act.   Under 49 U.S.C. § 5333(a), prevailing wage protections apply to laborers and mechanics employed on FTA assisted construction, alteration, or repair projects. The Contractor will comply with the Davis-Bacon Act, 40 U.S.C. §§ 3141-3144, and 3146-3148 as supplemented by DOL regulations at 29 C.F.R. part 5, “Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction.” In accordance with the statute, the Contractor shall pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, the Contractor agrees to pay wages not less than once a week. The Contractor shall also comply with the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by DOL regulations at 29 C.F.R. part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in part by Loans or Grants from the United States.” The Contractor is prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled.

Contract Work Hours and Safety Standards

For all contracts in excess of $100,000 that involve the employment of mechanics or laborers, the Contractor shall comply with the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 3701-3708), as supplemented by the DOL regulations at 29 C.F.R. part 5. Under 40 U.S.C. § 3702 of the Act, the Contractor shall compute the wages of every mechanic and laborer, including watchmen and guards, on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. § 3704 are applicable to construction work and provide that no laborer or mechanic be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchase of supplies or materials or articles ordinarily available on the open market, or to contracts for transportation or transmission of intelligence.

In the event of any violation of the clause set forth herein, the Contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, the Contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of this clause in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by this clause.

The FTA shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under any such contract or any other Federal contract with the same prime Contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime Contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or subcontractor for unpaid wages and liquidated damages as provided in this section.

The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in this agreement.

Contract Work Hours and Safety Standards for Awards Not Involving Construction

The Contractor shall comply with all federal laws, regulations, and requirements providing wage and hour protections for non-construction employees, in accordance with 40 U.S.C. § 3702, Contract Work Hours and Safety Standards Act, and other relevant parts of that Act, 40 U.S.C. § 3701 et seq., and U.S. DOL regulations, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Non-construction Contracts Subject to the Contract Work Hours and Safety Standards Act),” 29 C.F.R. part 5.

The Contractor shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for a period of three (3) years from the completion of the contract for all laborers and mechanics, including guards and watchmen, working on the contract. Such records shall contain the name and address of each such employee, social security number, correct classifications, hourly rates of wages paid, daily and weekly number of hours worked, deductions made, and actual wages paid.

Such records maintained under this paragraph shall be made available by the Contractor for inspection, copying, or transcription by authorized representatives of the FTA and the Department of Labor, and the Contractor will permit such representatives to interview employees during working hours on the job.

The contractor shall require the inclusion of the language of this clause within subcontracts of all tiers.

End of Section

A.11 ENERGY CONSERVATION

42 U.S.C. 6321 et seq.

49 C.F.R. part 622, subpart C

Applicability to Contracts

The Energy Conservation requirements are applicable to all contracts.

Flow Down

These requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subcontractors at every tier.

Model Clause/Language

Energy Conservation – The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.

End of Section

A.12 FLY AMERICA

49 U.S.C. § 40118 41 C.F.R. part 301-10  48 C.F.R. part 47.4

Applicability to Contracts

The Fly America requirements apply to the transportation of persons or property, by air, between a place in the U.S. and a place outside the U.S., or between places outside the U.S., when the FTA will participate in the costs of such air transportation. Transportation on a foreign air carrier is permissible when provided by a foreign air carrier under a code share agreement when the ticket identifies the U.S. air carrier’s designator code and flight number. Transportation by a foreign air carrier is also permissible if there is a bilateral or multilateral air transportation agreement to which the U.S. Government and a foreign government are parties and which the U.S. DOT has determined meets the requirements of the Fly America Act.

Flow Down Requirements

The Fly America requirements flow down from FTA recipients and subrecipients to first tier contractors who are responsible for ensuring that lower tier contractors and subcontractors are in compliance.

Model Clause/Language

The relevant statutes and regulations do not require any specific clause or language that recipients use in their third party contracts. A sample clause is provided for Federal contracts at 48 C.F.R. 52.247-63. Recipients can draw on the following language for inclusion in their federally funded procurements.

FTA proposes the following language, modified from the Federal clause.

“International air transportation” means transportation by air between a place in the United States and a place outside the United States or between two places both of which are outside the United States.

“United States” means the 50 States, the District of Columbia, and outlying areas.

“U.S.-flag air carrier” means an air carrier holding a certificate under 49 U.S.C. Chapter 411.

1. When Federal funds are used to fund travel, Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 40118) (Fly America Act) requires contractors, recipients, and others use U.S.-flag air carriers for U.S. Government-financed international air transportation of personnel (and their personal effects) or property, to the extent that service by those carriers is available. It requires the Comptroller General of the United States, in the absence of satisfactory proof of the necessity for foreign-flag air transportation, to disallow expenditures from funds, appropriated or otherwise established for the account of the United States, for international air transportation secured aboard a foreign-flag air carrier if a U.S.-flag air carrier is available to provide such services.
2. If available, the Contractor, in performing work under this contract, shall use U.S.-flag carriers for international air transportation of personnel (and their personal effects) or property.
3. In the event that the Contractor selects a carrier other than a U.S.-flag air carrier for international air transportation, the Contractor shall include a statement on vouchers involving such transportation essentially as follows:

Statement of Unavailability of U.S.-Flag Air Carriers

International air transportation of persons (and their personal effects) or property by U.S.-flag air carrier was not available or it was necessary to use foreign-flag air carrier service for the following reasons. See FAR § 47.403. [State reasons]:

_____________________________________________

1. The Contractor shall include the substance of this clause, including this paragraph (e), in each subcontract or purchase under this contract that may involve international air transportation.

End of Section

A.13 GOVERNMENT-WIDE DEBARMENT AND SUSPENSION

2 C.F.R. part 180 2 C.F.R part 1200 2 C.F.R. § 200.213 2 C.F.R. part 200 Appendix II (I)

Executive Order 12549 Executive Order 12689

Background and Applicability

A contract award (of any tier) in an amount expected to equal or exceed $25,000 or a contract award at any tier for a federally required audit (irrespective of the contract amount) must not be made to parties listed on the government-wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 C.F.R. part 180. The Excluded Parties List System in SAM contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.

Recipients, contractors, and subcontractors (at any level) that enter into covered transactions are required to verify that the entity (as well as its principals and affiliates) with which they propose to contract or subcontract is not excluded or disqualified. This is done by: (a) checking the SAM exclusions; (b) collecting a certification from that person; or (c) adding a clause or condition to the contract or subcontract.

Flow Down

Recipients, contractors, and subcontractors who enter into covered transactions with a participant at the next lower level, must require that participant to: (a) comply with subpart C of 2 C.F.R. part 180, as supplemented by 2 C.F.R. part 1200; and (b) pass the requirement to comply with subpart C of 2 C.F.R. part 180 to each person with whom the participant enters into a covered transaction at the next lower tier.

Model Clause/Language

There is no required language for the Debarment and Suspension clause. Recipients can draw on the following language for inclusion in their federally funded procurements.

Debarment, Suspension, Ineligibility and Voluntary Exclusion

The Contractor shall comply and facilitate compliance with U.S. DOT regulations, “Nonprocurement Suspension and Debarment,” 2 C.F.R. part 1200, which adopts and supplements the U.S. Office of Management and Budget (U.S. OMB) “Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement),” 2 C.F.R. part 180. These provisions apply to each contract at any tier of $25,000 or more, and to each contract at any tier for a federally required audit (irrespective of the contract amount), and to each contract at any tier that must be approved by an FTA official irrespective of the contract amount. As such, the Contractor shall verify that its principals, affiliates, and subcontractors are eligible to participate in this federally funded contract and are not presently declared by any Federal department or agency to be:

1. Debarred from participation in any federally assisted Award;
2. Suspended from participation in any federally assisted Award;
3. Proposed for debarment from participation in any federally assisted Award;
4. Declared ineligible to participate in any federally assisted Award;
5. Voluntarily excluded from participation in any federally assisted Award; or
6. Disqualified from participation in ay federally assisted Award.

By signing and submitting its bid or proposal, the bidder or proposer certifies as follows:

The certification in this clause is a material representation of fact relied upon by the Duluth Transit Authority. If it is later determined by the Duluth Transit Authority that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to the Duluth Transit Authority, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 2 C.F.R. part 180, subpart C, as supplemented by 2 C.F.R. part 1200, while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.

End of Section

A.14 LOBBYING RESTRICTIONS

31 U.S.C. § 1352 2 C.F.R. § 200.450 2 C.F.R. part 200 appendix II (J)  49 C.F.R. part 20

Applicability to Contracts

The lobbying requirements apply to all contracts and subcontracts of $100,000 or more at any tier under a Federal grant. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this agreement, the payor must complete and submit the Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.

Flow Down

The lobbying requirements mandate the maximum flow down pursuant to Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352(b)(5).

Model Clause/Language

Lobbying Restrictions

The undersigned certifies, to the best of his or her knowledge and belief, that:

1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
3. The undersigned shall require that the language of this certification be included in the award documents for all sub-awards at all tiers (including subcontracts, sub-grants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

End of Section

A.15 NO GOVERNMENT OBLIGATION TO THIRD PARTIES

Applicability to Contracts

The No Obligation clause applies to all third-party contracts that are federally funded.

Flow Down

The No Obligation clause extends to all third-party contractors and their contracts at every tier and subrecipients and their subcontracts at every tier.

Model Clause/Language

There is no required language for the No Obligations clause. Recipients can draw on the following language for inclusion in their federally funded procurements.

No Federal Government Obligation to Third Parties.

The Recipient and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying Contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this Contract and shall not be subject to any obligations or liabilities to the Recipient, Contractor or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying Contract. The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by the FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions.

End of Section

A.16 PATENT RIGHTS AND RIGHTS IN DATA

2 C.F.R. part 200, Appendix II (F) 37 C.F.R. part 401

Applicability to Contracts

If the recipient or subrecipient wishes to enter into a contract (or subcontract) with a small business firm or nonprofit organization for the performance of experimental, developmental, or research work under the FTA award, the recipient or subrecipient must comply with the requirements of 37 C.F.R. part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency. Except in the case of an “other agreement” in which the Federal Government has agreed to take more limited rights, the Federal Government is entitled to a non-exclusive, royalty free license to use the resulting invention, or patent the invention for Federal Government purposes. The FTA has the right to:

1. Obtain, reproduce, publish, or otherwise use the data produced under a Federal award; and
2. Authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes.

Flow Down

The Patent Rights and Rights in Data requirements flow down to all third party contractors and their contracts at every tier that meet the definition of a research-type project under 37 U.S.C. § 401.2.

Model Clause/Language

Recipients can draw on language provided in 37 C.F.R. § 401.3 for appropriate Patent Rights and Data Rights Clauses for use in their federally funded research, development, demonstration, or special studies projects. Recipients should consult legal counsel for guidance in developing an appropriate Intellectual Property Agreement. At a minimum, recipients can include the following language in their standard boilerplates.

Intellectual Property Rights

This Project is funded through a Federal award with FTA for experimental, developmental, or research work purposes. As such, certain Patent Rights and Data Rights apply to all subject data first produced in the performance of this Contract. The Contractor shall grant the Duluth Transit Authority intellectual property access and licenses deemed necessary for the work performed under this Agreement and in accordance with the requirements of 37 C.F.R. part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by FTA or U.S. DOT. The terms of an intellectual property agreement and software license rights will be finalized prior to execution of this Agreement and shall, at a minimum, include the following restrictions: Except for its own internal use, the Contractor may not publish or reproduce subject data in whole or in part, or in any manner or form, nor may the Contractor authorize others to do so, without the written consent of FTA, until such time as FTA may have either released or approved the release of such data to the public. This restriction on publication, however, does not apply to any contract with an academic institution. For purposes of this agreement, the term “subject data” means recorded information whether or copyrighted, and that is delivered or specified to be delivered as required by the Contract. Examples of “subject data” 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, but do not include financial reports, cost analyses, or other similar information used for performance or administration of the Contract.

1. The Federal Government reserves a royalty-free, non-exclusive and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use for “Federal Government Purposes,” any subject data or copyright described below. For “Federal Government Purposes,” means use only for the direct purposes of the Federal Government. Without the copyright owner’s consent, the Federal Government may not extend its Federal license to any other party. A. Any subject data developed under the Contract, whether or not a copyright has been obtained; and
2. Any rights of copyright purchased by the Contractor using Federal assistance in whole or in part by the FTA.
3. Unless FTA determines otherwise, the Contractor performing experimental, developmental, or research work required as part of this Contract agrees to permit FTA to make available to the public, either FTA’s license in the copyright to any subject data developed in the course of the Contract, or a copy of the subject data first produced under the Contract for which a copyright has not been obtained. If the experimental, developmental, or research work, which is the subject of this Contract, is not completed for any reason whatsoever, all data developed under the Contract shall become subject data as defined herein and shall be delivered as the Federal Government may direct.
4. Unless prohibited by state law, upon request by the Federal Government, the Contractor agrees to indemnify, save, and hold harmless the Federal Government, 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 Contractor of proprietary rights, copyrights, or right of privacy, arising out of the publication, translation, reproduction, delivery, use, or disposition of any data furnished under that contract. The Contractor shall be required to indemnify the Federal Government for any such liability arising out of the wrongful act of any employee, official, or agents of the Federal Government.
5. Nothing contained in this clause on rights in data shall imply a license to the Federal Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Federal Government under any patent.
6. Data developed by the Contractor and financed entirely without using Federal assistance provided by the Federal Government that has been incorporated into work required by the underlying Contract is exempt from the requirements herein, provided that the Contractor identifies those data in writing at the time of delivery of the Contract work.
7. The Contractor agrees to include these requirements in each subcontract for experimental, developmental, or research work financed in whole or in part with Federal assistance.

End of Section

A.17 PRE-AWARD AND POST-DELIVERY AUDITS OF ROLLING STOCK PURCHASES

49 U.S.C. 5323(m) 49 C.F.R. part 663

Applicability to Contracts

Recipients purchasing revenue service rolling stock with FTA funds must comply with the pre-award and post-delivery audit requirements set forth in 49 U.S.C. 5323(m) and supplemented by 49 C.F.R. part 663. For more information about pre-award and post-delivery audit requirements, please go to FTA’s Buy America page on its website.

Flow Down

There is no flow down requirement for Pre-Award and Post-Delivery Audits of Rolling Stock.

Model Clause/Language

Part 663 of Title 49, Code of Federal Regulations, does not contain specific language to be included in third party contracts but does contain requirements applicable to subrecipients and third party contractors. Recipients are advised to use the model certificates and language contained in the audit handbook. Additionally, recipients can draw on the following language for inclusion in their federally funded procurements.

Pre-Award and Post-Delivery Audit Requirements

The Contractor agrees to comply with 49 U.S.C. § 5323(m) and FTA’s implementing regulation at 49 C.F.R. part 663. The Contractor shall comply with the Buy America certification(s) submitted with its proposal/bid. The Contractor agrees to participate and cooperate in any pre-award and post-delivery audits performed pursuant to 49 C.F.R. part 663 and related FTA guidance.

End of Section

A.18 PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS

AND RELATED ACTS

49 U.S.C. § 5323(l) (1) 31 U.S.C. §§ 3801-3812 18 U.S.C. § 1001 49 C.F.R. part 31

Applicability to Contracts

The Program Fraud clause applies to all third-party contracts that are federally funded.

Flow Down

The Program Fraud clause extends to all third-party contractors and their contracts at every tier and subrecipients and their subcontracts at every tier. These requirements flow down to contractors and subcontractors who make, present, or submit covered claims and statements.

Program Fraud and False or Fraudulent Statements or Related Acts

The Contractor acknowledges that the provisions of 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 actions pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate.

The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. chapter 53, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5323(l) on the Contractor, to the extent the Federal Government deems appropriate.

The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions.

End of Section

A.19 PUBLIC TRANSPORTATION EMPLOYEE PROTECTIVE ARRANGEMENTS

49 U.S.C. § 5333(b) (“13(c)”) 29 C.F.R. part 215

Applicability to Contracts

The Public Transportation Employee Protective Arrangements apply to each contract for transit operations performed by employees of a Contractor recognized by FTA to be a transit operator.

Flow Down

The employee protective arrangements clause flows down to all third party contractors and their contracts at every tier.

Model Clause/Language

There is no required language for the Public Transportation Employee Protective Arrangements clause. Recipients can draw on the following language for inclusion in their federally funded procurements.

Public Transportation Employee Protective Arrangements

The Contractor agrees to comply with the following employee protective arrangements of 49 U.S.C. § 5333(b):

1. U.S. DOL Certification. Under this Contract or any Amendments thereto that involve public transportation operations that are supported with federal assistance, a certification issued by U.S. DOL is a condition of the Contract.
2. Special Warranty. When the Contract involves public transportation operations and is supported with federal assistance appropriated or made available for 49 U.S.C. § 5311, U.S. DOL will provide a Special Warranty for its Award, including its Award of federal assistance under the Tribal Transit Program. The U.S. DOL Special Warranty is a condition of the Contract.
3. Special Arrangements. The conditions of 49 U.S.C. § 5333(b) do not apply to Contractors providing public transportation operations pursuant to 49 U.S.C. § 5310. FTA reserves the right to make case-by-case determinations of the applicability of 49 U.S.C. § 5333(b) for all transfers of funding authorized under title 23, United States Code (flex funds), and make other exceptions as it deems appropriate, and, in those instances, any special arrangements required by FTA will be incorporated herein as required.

End of Section

A.20 RECYCLED PRODUCTS

Applicability to Contracts

The Resource Conservation and Recovery Act, as amended, (42 U.S.C. § 6962 et seq.), requires States and local governmental authorities to provide a competitive preference to products and services that conserve natural resources, protect the environment, and are energy efficient. Recipients are required to procure only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000.

Flow Down

These requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subcontracts at every tier where the value of an EPA designated item exceeds $10,000.

Model Clause/Language

Recovered Materials

The Contractor agrees to provide a preference for those products and services that conserve natural resources, protect the environment, and are energy efficient by complying with and facilitating compliance with Section 6002 of the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 6962, and U.S. Environmental Protection Agency (U.S. EPA), “Comprehensive Procurement Guideline for Products Containing Recovered Materials,” 40 C.F.R. part 247.

End of Section

A.21 SAFE OPERATION OF MOTOR VEHICLES

23 U.S.C. part 402; Executive Order No. 13043

Executive Order No. 13513; U.S. DOT Order No. 3902.10

Applicability to Contracts

The Safe Operation of Motor Vehicles requirements apply to all federally funded third party contracts. In compliance with Federal Executive Order No. 13043, “Increasing Seat Belt Use in the United States,” April 16, 1997, 23 U.S.C. Section 402 note, FTA encourages each third party contractor to adopt and promote on-the-job seat belt use policies and programs for its employees and other personnel that operate company owned, rented, or personally operated vehicles, and to include this provision in each third party subcontract involving the project. Additionally, recipients are required by FTA to include a Distracted Driving clause that addresses distracted driving, including text messaging in each of its third party agreements supported with Federal assistance.

Flow Down Requirements

The Safe Operation of Motor Vehicles requirements flow down to all third-party contractors at every tier.

Model Clause/Language

Safe Operation of Motor Vehicles

Seat Belt Use

The Contractor is encouraged to adopt and promote on-the-job seat belt use policies and programs for its employees and other personnel that operate company-owned vehicles, company-rented vehicles, or personally operated vehicles. The terms “company-owned” and “company-leased” refer to vehicles owned or leased either by the Contractor or the Duluth Transit Authority.

Distracted Driving

The Contractor agrees to adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers, including policies to ban text messaging while using an electronic device supplied by an employer, and driving a vehicle the driver owns or rents, a vehicle Contactor owns, leases, or rents, or a privately-owned vehicle when on official business in connection with the work performed under this agreement.

End of Section

A.22 SCHOOL BUS OPERATIONS

49 U.S.C. 5323(f) 49 C.F.R. part 605

Applicability to Contracts

The School Bus requirements apply to contracts for operating public transportation service.

Flow Down Requirements

The School Bus requirements flow down from FTA recipients and subrecipients to first tier service contractors.

Model Clause/Language

The relevant statutes and regulations do not mandate any specific clause or language. Recipients can draw on the following language for inclusion in their federally funded procurements.

School Bus Operations

The contractor agrees to comply with 49 U.S.C. 5323(f), and 49 C.F.R. part 604, and not engage in school bus operations using federally funded equipment or facilities in competition with private operators of school buses, except as permitted under:

1. Federal transit laws, specifically 49 U.S.C. § 5323(f);
2. FTA regulations, “School Bus Operations,” 49 C.F.R. part 605;
3. Any other Federal School Bus regulations; or
4. Federal guidance, except as FTA determines otherwise in writing.

If Contractor violates this School Bus Agreement, FTA may:

1. Bar the Contractor from receiving Federal assistance for public transportation; or
2. Require the contractor to take such remedial measures as FTA considers appropriate.

When operating exclusive school bus service under an allowable exemption, the contractor may not use federally funded equipment, vehicles, or facilities.

The Contractor should include the substance of this clause in each subcontract or purchase under this contract that may operate public transportation services.

End of Section

A.23 SEISMIC SAFETY

42 U.S.C. 7701 et seq. 49 C.F.R. part 41 Executive Order (E.O.) 12699

Applicability to Contracts

The Seismic Safety requirements apply only to contracts for the construction of new buildings or additions to existing buildings.

Flow Down

The Seismic Safety requirements flow down from FTA recipients and subrecipients to first tier contractors to assure compliance with the applicable building standards for Seismic Safety, including the work performed by all subcontractors.

Model Clauses/Language

The regulations do not provide suggested language for third party contract clauses. Recipients can draw on the following language for inclusion in their federally funded procurements.

Seismic Safety

The contractor 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 Department of Transportation (DOT) Seismic Safety Regulations 49 C.F.R. part 41 and will certify to compliance to the extent required by the regulation. The contractor also agrees to ensure that all work performed under this contract, 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.

End of Section

A.24 SUBSTANCE ABUSE REQUIREMENTS

49 U.S.C. § 5331  49 C.F.R. part 655 49 C.F.R. part 40

Applicability to Contracts

Third party contractors who perform safety-sensitive functions must comply with FTA’s substance abuse management program under 49 C.F.R. part 655, “Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations.” Under 49 C.F.R. § 655.4, Safety-sensitive function means any of the following duties, when performed by employees of recipients, subrecipients, operators, or contractors:

1. Operating a revenue service vehicle, including when not in revenue service;
2. Operating a nonrevenue service vehicle, when required to be operated by a holder of a Commercial Driver’s License;
3. Controlling dispatch or movement of a revenue service vehicle;
4. Maintaining (including repairs, overhaul and rebuilding) a revenue service vehicle or equipment used in revenue service. This section does not apply to the following: an employer who receives funding under 49 U.S.C. § 5307 or § 5309, is in an area less than 200,000 in population, and contracts out such services; or an employer who receives funding under 49 U.S.C. § 5311 and contracts out such services;
5. Carrying a firearm for security purposes.

Additionally, third party contractors providing testing services involving the performance of safety sensitive activities must also comply with 49 C.F.R. part 40, “Procedures for Transportation Workplace Drug and Alcohol Testing Programs.”

Flow Down Requirements

The Substance Abuse requirements flow down to all third party contractors at every tier who perform a safety-sensitive function for the recipient or subrecipient.

Model Clause/Language

FTA’s drug and alcohol rules, 49 C.F.R. part 655, are unique among the regulations issued by FTA. First, they require recipients to ensure that any entity performing a safety-sensitive function on the recipient’s behalf (usually subrecipients and/or contractors) implement a complex drug and alcohol testing program that complies with part 655. Second, the rules condition the receipt of certain kinds of FTA funding on the recipient’s compliance with the rules; thus, the recipient is not in compliance with the rules unless every entity that performs a safety-sensitive function on the recipient’s behalf is in compliance with the rules. Third, the rules do not specify how a recipient ensures that its subrecipients and/or contractors comply with them.

How a recipient does so depends on several factors, including whether the contractor is covered independently by the drug and alcohol rules of another Department of Transportation operating administration, the nature of the relationship that the recipient has with the contractor, and the financial resources available to the recipient to oversee the contractor’s drug and alcohol testing program. In short, there are a variety of ways a recipient can ensure that its subrecipients and contractors comply with the rules.

FTA has developed three model contract provisions for recipients to use “as is” or to modify to fit their particular situations.

Explanation of Model Contract Clauses

Option 1

The recipient ensures the contractor’s compliance with the rules by requiring the contractor to participate in a drug and alcohol program administered by the recipient. The advantages of doing this are obvious: the recipient maintains total control over its compliance with 49 C.F.R. part 655. The disadvantage is that the recipient, which may not directly employ any safety-sensitive employees, has to implement a complex testing program. Therefore, this may be a practical option for only those recipients that have a testing program for their employees, and can add the contractor’s safety-sensitive employees to that program.

Option 2

The recipient relies on the contractor to implement a drug and alcohol testing program that complies with 49 C.F.R. part 655, but retains the ability to monitor the contractor’s testing program; thus, the recipient has less control over its compliance with the drug and alcohol testing rules than it does under Option 1. The advantage of this approach is that it places the responsibility for complying with the rules on the entity that is actually performing the safety-sensitive function. Moreover, it reserves to the recipient the power to ensure that the contractor complies with the program. The disadvantage of Option 2 is that, without adequate monitoring of the contractor’s program, the recipient may find itself out of compliance with the rules.

Option 3

The recipient specifies some or all of the specific features of a contractor’s drug and alcohol compliance program. Thus, it requires the recipient to decide what it wants to do and how it wants to do it. The advantage of this option is that the recipient has more control over the contractor’s drug and alcohol testing program, yet it is not actually administering the testing program. The disadvantage is that the recipient has to specify and understand clearly what it wants to do and why.

SUBSTANCE ABUSE TESTING Option 1

The Contractor agrees to participate in the Duluth Transit Authority’s drug and alcohol program established in compliance with 49 C.F.R. part 655.

SUBSTANCE ABUSE TESTING Option 2

The Contractor agrees to establish and implement a drug and alcohol testing program that complies with 49 C.F.R. parts 655, produce any documentation necessary to establish its compliance with part 655, and permit any authorized representative of the United States Department of Transportation or its operating administrations, the State Oversight Agency of Minnesota, or the Duluth Transit Authority, to inspect the facilities and records associated with the implementation of the drug and alcohol testing program as required under 49 C.F.R. part 655 and review the testing process. The Contractor agrees further to certify annually its compliance with parts 655 before March 1 and to submit the Management Information System (MIS) reports before March 15 to the Duluth Transit Authority General Manager, 2402 West Michigan Street, Duluth, MN 55806. To certify compliance, the Contractor shall use the “Substance Abuse Certifications” in the “Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements,” which is published annually in the Federal Register.

SUBSTANCE ABUSE TESTING Option 3

The Contractor agrees to establish and implement a drug and alcohol testing program that complies with 49 C.F.R. part 655, produce any documentation necessary to establish its compliance with part 655, and permit any authorized representative of the United States Department of Transportation or its operating administrations, the State Oversight Agency of Minnesota, or the Duluth Transit Authority, to inspect the facilities and records associated with the implementation of the drug and alcohol testing program as required under 49 C.F.R. part 655 and review the testing process. The Contractor agrees further to certify annually its compliance with parts 655 before March 1 and to submit the Management Information System (MIS) reports before March 15 to the Duluth Transit Authority General Manager, 2402 West Michigan Street, Duluth, MN 55806.  To certify compliance the Contractor shall use the “Substance Abuse Certifications” in the “Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements,” which is published annually in the Federal Register. The Contractor agrees further to submit for review and approval before March 1 a copy of its Policy Statement developed to implement its drug and alcohol testing program. In addition, the Contractor agrees to the selection of the certified laboratory, substance abuse professional, or Medical Review Officer, as determined by the Duluth Transit Authority.

End of Section

A.25 TERMINATION

2 C.F.R. § 200.339 2 C.F.R. part 200, Appendix II (B)

Applicability to Contracts

All contracts in excess of $10,000 must address termination for cause and for convenience, including the manner by which it will be effected and the basis for settlement.

Flow Down

For all contracts in excess of $10,000, the Termination clause extends to all third party contractors and their contracts at every tier and subrecipients and their subcontracts at every tier.

Model Clause/Language

There is no required language for the Terminations clause. Recipients can draw on the following language for inclusion in their federally funded procurements.

Termination for Convenience (General Provision)

The Duluth Transit Authority may terminate this contract, in whole or in part, at any time by written notice to the Contractor when it is in the Duluth Transit Authority’s best interest. The Contractor shall be paid its costs, including contract close-out costs, and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to the Duluth Transit Authority to be paid the Contractor. If the Contractor has any property in its possession belonging to the Duluth Transit Authority, the Contractor will account for the same, and dispose of it in the manner the Duluth Transit Authority directs.

Termination for Default [Breach or Cause] (General Provision)

If the Contractor does not deliver supplies in accordance with the contract delivery schedule, or if the contract is for services, the Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, the Duluth Transit Authority may terminate this contract for default. Termination shall be effected by serving a Notice of Termination on the Contractor setting forth the manner in which the Contractor is in default. The Contractor will be paid only the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract.

If it is later determined by the Duluth Transit Authority that the Contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the control of the Contractor, the Duluth Transit Authority, after setting up a new delivery of performance schedule, may allow the Contractor to continue work, or treat the termination as a Termination for Convenience.

Opportunity to Cure (General Provision)

The Duluth Transit Authority, in its sole discretion may, in the case of a termination for breach or default, allow the Contractor twenty (20) days in which to cure the defect. In such case, the Notice of Termination will state the time period in which cure is permitted and other appropriate conditions.

If Contractor fails to remedy to the Duluth Transit Authority’s satisfaction the breach or default of any of the terms, covenants, or conditions of this Contract within 10 days after receipt by Contractor of written notice from the Duluth Transit Authority setting forth the nature of said breach or default, the Duluth Transit Authority shall have the right to terminate the contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude the Duluth Transit Authority from also pursuing all available remedies against Contractor and its sureties for said breach or default.

Waiver of Remedies for any Breach

In the event that the Duluth Transit Authority elects to waive its remedies for any breach by Contractor of any covenant, term or condition of this contract, such waiver by the Duluth Transit Authority shall not limit the Duluth Transit Authority’s remedies for any succeeding breach of that or of any other covenant, term, or condition of this contract.

Termination for Convenience (Professional or Transit Service Contracts)  

The Duluth Transit Authority, by written notice, may terminate this contract, in whole or in part, when it is in the Duluth Transit Authority’s interest. If this contract is terminated, the Duluth Transit Authority shall be liable only for payment under the payment provisions of this contract for services rendered before the effective date of termination.

Termination for Default (Supplies and Service)

If the Contractor fails to deliver supplies or to perform the services within the time specified in this contract or any extension, or if the Contractor fails to comply with any other provisions of this contract, the Duluth Transit Authority may terminate this contract for default. The Duluth Transit Authority shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default. The Contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner or performance set forth in this contract.

If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Duluth Transit Authority.

Termination for Default (Transportation Services)

If the Contractor fails to pick up the commodities or to perform the services, including delivery services, within the time specified in this contract or any extension, or if the Contractor fails to comply with any other provisions of this contract, the Duluth Transit Authority may terminate this contract for default. The Duluth Transit Authority shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of default. The Contractor will only be paid the contract price for services performed in accordance with the manner of performance set forth in this contract.

If this contract is terminated while the Contractor has possession of Duluth Transit Authority goods, the Contractor shall, upon direction of the Duluth Transit Authority, protect and preserve the goods until surrendered to the Duluth Transit Authority or its agent. The Contractor and the Duluth Transit Authority shall agree on payment for the preservation and protection of goods. Failure to agree on an amount will be resolved under the Dispute clause. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Duluth Transit Authority.

Termination for Default (Construction)

If the Contractor refuses or fails to prosecute the work or any separable part, with the diligence that will ensure its completion within the time specified in this contract or any extension or fails to complete the work within this time, or if the Contractor fails to comply with any other provision of this contract, the Duluth Transit Authority may terminate this contract for default. The Duluth Transit Authority shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default. In this event, the Duluth Transit Authority may take over the work and compete it by contract or otherwise, and may take possession of and use any materials, appliances, and plant on the work site necessary for completing the work. The Contractor and its sureties shall be liable for any damage to the Duluth Transit Authority resulting from the Contractor’s refusal or failure to complete the work within specified time, whether or not the Contractor’s right to proceed with the work is terminated. This liability includes any increased costs incurred by the Duluth Transit Authority in completing the work.

The Contractor’s right to proceed shall not be terminated nor shall the Contractor be charged with damages under this clause if:

1. The delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include: acts of God, acts of the Duluth Transit Authority, acts of another contractor in the performance of a contract with the Duluth Transit Authority, epidemics, quarantine restrictions, strikes, freight embargoes; and
2. The Contractor, within 10 days from the beginning of any delay, notifies the Duluth Transit Authority in writing of the causes of delay. If, in the judgment of the Duluth Transit Authority, the delay is excusable, the time for completing the work shall be extended. The judgment of the Duluth Transit Authority shall be final and conclusive for the parties, but subject to appeal under the Disputes clause(s) of this contract.

If, after termination of the Contractor’s right to proceed, it is determined that the Contractor was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the Duluth Transit Authority.

Termination for Convenience or Default (Architect and Engineering)

The Duluth Transit Authority may terminate this contract in whole or in part, for the Duluth Transit Authority’s convenience or because of the failure of the Contractor to fulfill the contract obligations. The Duluth Transit Authority shall terminate by delivering to the Contractor a Notice of Termination specifying the nature, extent, and effective date of the termination. Upon receipt of the notice, the Contractor shall (1) immediately discontinue all services affected (unless the notice directs otherwise), and (2) deliver to the Duluth Transit Authority‘s Contracting Officer all data, drawings, specifications, reports, estimates, summaries, and other information and materials accumulated in performing this contract, whether completed or in process. The Duluth Transit Authority has a royalty-free, nonexclusive, and irrevocable license to reproduce, publish or otherwise use, all such data, drawings, specifications, reports, estimates, summaries, and other information and materials.

If the termination is for the convenience of the Duluth Transit Authority, the Duluth Transit Authority’s Contracting Officer shall make an equitable adjustment in the contract price but shall allow no anticipated profit on unperformed services.

If the termination is for failure of the Contractor to fulfill the contract obligations, the Duluth Transit Authority may complete the work by contact or otherwise and the Contractor shall be liable for any additional cost incurred by the Duluth Transit Authority.

If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Duluth Transit Authority.

Termination for Convenience or Default (Cost-Type Contracts)

The Duluth Transit Authority may terminate this contract, or any portion of it, by serving a Notice of Termination on the Contractor. The notice shall state whether the termination is for convenience of the Duluth Transit Authority or for the default of the Contractor. If the termination is for default, the notice shall state the manner in which the Contractor has failed to perform the requirements of the contract. The Contractor shall account for any property in its possession paid for from funds received from the Duluth Transit Authority, or property supplied to the Contractor by the Duluth Transit Authority. If the termination is for default, the Duluth Transit Authority may fix the fee, if the contract provides for a fee, to be paid the Contractor in proportion to the value, if any, of work performed up to the time of termination. The Contractor shall promptly submit its termination claim to the Duluth Transit Authority and the parties shall negotiate the termination settlement to be paid the Contractor.

If the termination is for the convenience of the Duluth Transit Authority, the Contractor shall be paid its contract close-out costs, and a fee, if the contract provided for payment of a fee, in proportion to the work performed up to the time of termination.

If, after serving a Notice of Termination for Default, the Duluth Transit Authority determines that the Contractor has an excusable reason for not performing, the Duluth Transit Authority, after setting up a new work schedule, may allow the Contractor to continue work, or treat the termination as a Termination for Convenience.

End of Section

A.26 VIOLATION AND BREACH OF CONTRACT

2 C.F.R. § 200.326  2 C.F.R. part 200, Appendix II (A)

Applicability to Contracts

All contracts in excess of the Simplified Acquisition Threshold (currently set at $150,000) shall contain administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate.

Flow Down

The Violations and Breach of Contracts clause flow down to all third party contractors and their contracts at every tier.

Model Clauses/Language

FTA does not prescribe the form or content of such provisions. The provisions developed will depend on the circumstances and the type of contract. Recipients should consult legal counsel in developing appropriate clauses. The following clauses are examples of provisions from various FTA third party contracts. Recipients can draw on these examples for inclusion in their federally funded procurements.

Rights and Remedies of the Duluth Transit Authority

The Duluth Transit Authority shall have the following rights in the event that the Duluth Transit Authority deems the Contractor guilty of a breach of any term under the Contract.

1. The right to take over and complete the work or any part thereof as agency for and at the expense of the Contractor, either directly or through other contractors;
2. The right to cancel this Contract as to any or all of the work yet to be performed;
3. The right to specific performance, an injunction or any other appropriate equitable remedy; and
4. The right to money damages.

Rights and Remedies of Contractor

Inasmuch as the Contractor can be adequately compensated by money damages for any breach of this Contract, which may be committed by the Duluth Transit Authority, the Contractor expressly agrees that no default, act or omission of the Duluth Transit Authority shall constitute a material breach of this Contract, entitling Contractor to cancel or rescind the Contract (unless the Duluth Transit Authority directs Contractor to do so) or to suspend or abandon performance.

Remedies

Substantial failure of the Contractor to complete the Project in accordance with the terms of this Agreement will be a default of this Agreement. In the event of a default, the Duluth Transit Authority will have all remedies in law and equity, including the right to specific performance, without further assistance, and the rights to termination or suspension as provided herein. The Contractor recognizes that in the event of a breach of this Agreement by the Contractor before the Duluth Transit Authority takes action contemplated herein, the Duluth Transit Authority will provide the Contractor with sixty (60) days written notice that the Duluth Transit Authority considers that such a breach has occurred and will provide the Contractor a reasonable period of time to respond and to take necessary corrective action.

Disputes

• Example 1: Disputes arising in the performance of this Contract that are not resolved by agreement of the parties shall be decided in writing by the authorized representative of the Duluth Transit Authority’s Procurement Manager. This decision shall be final and conclusive unless within 10 days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the Duluth Transit Authority General Manager. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the General Manager shall be binding upon the Contractor and the Contractor shall abide be the decision.   
• Example 2: The Duluth Transit Authority and the Contractor intend to resolve all disputes under this Agreement to the best of their abilities in an informal manner. To accomplish this end, the parties will use an Alternative Dispute Resolution process to resolve disputes in a manner designed to avoid litigation. In general, the parties contemplate that the Alternative Dispute Resolution process will include, at a minimum, an attempt to resolve disputes through communications between their staffs, and, if resolution is not reached at that level, a procedure for review and action on such disputes by appropriate management level officials within the Duluth Transit Authority and the Contractor’s organization.

In the event that a resolution of the dispute is not mutually agreed upon, the parties can agree to mediate the dispute or proceed with litigation. Notwithstanding any provision of this section, or any other provision of this Contract, it is expressly agreed and understood that any court proceeding arising out of a dispute under the Contract shall be heard by a Court de novo and the court shall not be limited in such proceeding to the issue of whether the Duluth Transit Authority acted in an arbitrary, capricious or grossly erroneous manner.

Pending final settlement of any dispute, the parties shall proceed diligently with the performance of the Contract, and in accordance with the Duluth Transit Authority’s direction or decisions made thereof.

Performance during Dispute

Unless otherwise directed by the Duluth Transit Authority, Contractor shall continue performance under this Contract while matters in dispute are being resolved.

Claims for Damages

Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of its employees, agents or others for whose acts it is legally liable, a claim for damages therefor shall be made in writing to such other party within a reasonable time after the first observance of such injury or damage.

Remedies

Unless this Contract provides otherwise, all claims, counterclaims, disputes and other matters in question between the Duluth Transit Authority and the Contractor arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of competent jurisdiction within the State in which the Duluth Transit Authority is located.

Rights and Remedies

The duties and obligations imposed by the Contract documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by the Duluth Transit Authority or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing.

Organizational Conflict of Interest

1.     An organization conflict of interest means that because of other activities or relationships with other persons or entities, a Contractor is unable, or potentially unable to render impartial assistance or advice to the DTA, or the Contractor’s objectivity in performing the contract work is, or might be otherwise impaired, or the Contractor has an unfair competitive advantage. Organizational Conflict of interest includes situations where the capacity of a Contractor (including the Contractor’s executives, directors, consultants, subsidiaries, parent companies or subcontractors) to give impartial, technically sound advice or objective assistance is or may be impaired or may otherwise result in a biased work product because of any past, present or planned interest, financial or otherwise, in the DTA.
2.     The Contractor is responsible for maintaining and providing up-to-date conflict of interest information to the DTA’s Director of Finance. If, after award of a contract or task order, the Contractor discovers a conflict of interest with respect to the contract or task order which could not reasonably have been known prior to award, or if any additional conflicts or potential conflicts arise after award, the Contractor shall give written notice to the DTA’s Director of Finance as set forth below.
3.     The Contractor’s notice called for in paragraph b. above shall describe the actual, apparent, or potential conflict of interest, the action(s) the Contractor has taken or proposes to take to avoid or mitigate any conflict and shall set forth any other information which the Contractor believes would be helpful to the DTA’s Director of Finance in analyzing the situation.
4.     The Contractor has the responsibility of formulating and forwarding a proposed mitigation plan to the DTA’s Director of Finance, for review and consideration. This responsibility arises when the Contractor first learns of an actual, apparent, or potential conflict of interest. Corporate counsel review of the proposed mitigation plan is necessary to ensure a timely review and final determination by the DTA’s Director of Finance.
5.     If the DTA’s Director of Finance in his/her discretion determines that the Contractor’s actual, apparent, or potential conflict of interest remains, or the measures proposed are insufficient to avoid or mitigate the conflict, the DTA’s Director of Finance will direct a course of action to the Contractor designed to avoid, neutralize, or mitigate the conflict of interest. If the parties fail to reach agreement on a course of action, or if having reached such agreement the Contractor fails to strictly adhere to such agreement during the remaining period of contract performance, the DTA’s Director of Finance has the discretion to terminate the contract for default. No determination or decision by the DTA’s Director of Finance under this clause shall be reviewable under FAR Clause 52.233-1, “Disputes Clause (MAY 2014),” which is also incorporated by reference herein.
6.      The Contractor’s misrepresentation of facts in connection with a conflict of interest reported or a Contractor’s failure to disclose a conflict of interest as required shall be a basis for default termination of this contract.
7.     The Contractor is prohibited from submitting qualifications, bids, proposals, offers, solicitations, or similar documents to the Grantee it is supervising during the contract and task order performance periods.
8.     Management of conflicts of interest by the Contractor will be a part of performance evaluations.

Davis-Bacon Act
REQUIREMENT

§ 24 of the Master Agreement delineates the Grantee’s obligations to comply with the employee protection requirements of the Davis‑Bacon Act. For construction activities exceeding $2,000 performed in connection with an FTA‑funded Project, the Recipient of those funds agrees to comply with, and assure compliance with, the requirements of 49 U.S.C. § 5333(a), the Davis‑Bacon Act, [1] and the implementing regulations of the Department of Labor at 29 CFR Part 5. In addition to the requirements of the statute and regulations, the Recipient also agrees to report to the FTA every suspected or reported violation of the Davis‑Bacon Act or its Federal implementing Regulations.

DISCUSSION

The Davis‑Bacon Act (the Act) provides that contracts in excess of $2,000 to which the United States is a party (i.e., federal funds are involved) for construction, alteration, or repair (including painting and decorating) of public buildings or public works within the United States shall contain a clause that no laborer or mechanic employed directly upon the site of the work shall receive less than the prevailing wage rates as determined by the Secretary of Labor. [2] The clause mandated by the Act and its implementing federal regulations is found in Appendix A.1 of the Manual. The purpose of this section in the Manual is to discuss the practical issues surrounding the requirements of the Act and the regulations implementing it.

Best Practices

Federal Wage Determinations ‑ When a construction project is being performed with federal funds, laborers and mechanics employed directly upon the site of the work shall be paid a minimum wage which is determined by the Secretary of Labor. That rate of pay is referred to as the “Davis‑Bacon wage rate” and is specifically identified in the contract between the Recipient and the Contractor.

Types of Wage Determinations – Federal wage determinations are of two types: (a) General Wage Determinations and (b) Project Wage Determinations. General wage determinations contain prevailing wage rates for the types of construction designated in the determination, and they are used in contracts performed within a specified geographical area. They contain no expiration date and remain valid until modified, superseded, or canceled by a notice in the Federal Register by the Department of Labor. These determinations should be used whenever possible.

Project wage determinations are issued at the specific request of the grantee. They are used only when no general wage determination applies and they are effective for 180 days from the date of the determination.

It is the obligation of the contracting officer to ensure that a copy of the most current wage determination of the Department of Labor (DOL) is actually included in the solicitation and ensuing contract. The Wage and Hour Division of the DOL is responsible for the publication of wage determinations. Such determinations are numbered, dated, and issued as different rate schedules, depending upon the type of construction involved (building, residential, highway, or heavy construction). [3]

State Wage Determinations on Federally Funded Projects – Your state may also prescribe minimum wages and benefits for public works projects. If your state has established prevailing wages that are higher than Davis-Bacon Act rates, you should get advice of counsel to determine whether or not the state law or Davis-Bacon Act rate prevails, however in no event can rates be lower than Davis-Bacon Act rates.

Where to Obtain Wage Determinations ‑ General wage determinations may be found in the Government Printing Office document entitled General Wage Determinations Issued Under The Davis‑Bacon and Related Acts.

Subscriptions to this information are available electronically [4] and by hard‑copy. [5] The decisions are included in six different volumes, arranged by state. If ordering a hard‑copy subscription, only get the volume that includes your state. An annual edition is published in January or February of each year and then updated weekly throughout the year as part of the loose‑leaf service.

This publication is available at each of the 50 Regional Government Depository Libraries and many of the Government Depository Libraries across the country. In large metropolitan areas, this document may also be available in a central public library as well as through local offices of your state’s department of transportation. In addition, The Davis-Bacon Act wage rates can be accessed on the Internet at http://www.wdol.gov/.

If you are involved in a project that will involve the issuance of multiple construction‑related solicitations over an extended period of time, you may want your own copy of this document. This is not only for convenience but also ensures that your solicitations and contracts contain the most up‑to‑date determinations. [6]

Requesting a Wage Determination ‑ As you start a project involving construction, one of the best personal contacts you can make is with the local DOL representative who will be monitoring your contract for compliance with the Davis‑Bacon minimum wage requirements. If a general wage determination is available for your area, you may use it without notifying the Department of Labor. If a general determination is not available for your area, you can work with your local DOL representative in requesting either a general wage determination or a project determination.[7] Do not hesitate to utilize the services of a project’s design services professional to assist in obtaining information about the latest wage determinations. In all likelihood, that firm will know precisely what the requirements are and who to contact at the DOL.

Because the process to make a determination takes at least 45 days, it is important to know early in the project whether or not a determination is available for your area. The request to have a determination made needs to be submitted to the DOL 45 to 60 days before the solicitation is to be issued.

Wage Determinations and Your Solicitation/Contract ‑ The clause and regulations require that the wage determination be physically attached to the solicitation. The wage determination cannot be incorporated by reference. If the solicitation is issued without a wage determination included, bids may not be opened until a reasonable time after the wage determination has been furnished to all bidders and incorporated into the solicitation by amendment.

What if the wage determination expires before award? It should be noted that general wage determinations never expire and remain valid until modified, superseded or canceled by DOL. But project wage determinations do expire. In the event that your project wage determination expires or your general wage determination is superseded by a new determination before bids are received, you must request a new project determination (if using a project wage determination) and incorporate the new rates in a solicitation amendment in sufficient time for bidders to amend their bids. If the new determination does not change the wage rates and would not cause bidders to change their bid prices, you should amend the solicitation to include the number and date of the new determination.

If the wage determination expires after bid receipt but prior to award, you should request an extension of the determination from DOL’s Wage and Hour Division. If necessary, award of the contract should be delayed until the request for extension has been granted or a new wage determination has been issued. If the request for extension is denied and a new wage determination issued that changes the wage rates for classifications to be used in the contract, the contracting officer may either cancel the solicitation and re‑advertise with the appropriate determination or award the contract and incorporate the new determination effective on the date of contract award. [8] If the new wage determination did not change any wage rate, the contracting officer should award the contract and modify it to include the number and date of the new determination. [9]

[1] – Act of March 3, 1931, 46 Stat. 1491, as amended; codified at 40 U.S.C. § 276a et seq.

[2] – For a thorough discussion of the labor standards for contracts involving construction, see FAR Subpart 22.4.

[3] – See generally, FAR § 22.404‑2(c) for discussion of the different types of construction.

[4] – In a Federal Register Notice of June 14, 1996, the Chief, Branch of Construction Wage Determinations advised that wage determinations issued under the Davis‑Bacon and related Acts are available electronically by subscription to the FedWorld Bulletin Board System of the National Technical Information Service (NTIS) of the U.S. Department of Commerce. A telephone contact is (703) 487‑4630.

[5] – The same Notice advised that hard-copy subscriptions may be purchased from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, with a telephone contact at (202) 512-1800.

[6] – The cost of the hard‑copy subscription (between $440 and $830 per volume) is a minuscule investment for your project library when considering the contractual impacts of the wage determinations, which will be discussed below.

[7] – The procedures to be followed in requesting these determinations are found in 29 CFR Part 1 and in FAR § 22.404‑3.

[8] – In this case, the grantee has the discretion, depending upon the terms of their solicitation documents, to either award to the low bidder at the price bid, or to equitably adjust the contract price for any increased or decreased cost of performance resulting from any changed wage rates.

[9] – Rules relating to expiration of wage determinations are discussed in detail at FAR § 22.404‑5.