804
ATTEST:
Caroline Patton , Ad
City of Banning
APPROVED AS TO FORM:
Sb°tl---
Serita R. Young , City Attorney
Richards , Watson & Gershon
Resolution 2024- 161
805
CERTIFICATION:
I, Caroline Patton , Administrative C ity Clerk of the City of Banning , California , do he reby cert ify that the foregoing Resolution 2024- 161 , was duly adopted by the City Council of the City of Banning , California , at a regular meeting thereof held on the 8th day of October 2024 by the following vote , to wit:
AYES : Flynn , Minjares , Sanchez , and Wallace .
NOES :
ABSENT:
ABSTAIN : Happe .
Resolut ion 2024- 161
Caroline Patton , Admin-· rative City Clerk
City of Banning , Cal iforni a
806
EXHIBIT A
Agreement For the Funding Of Sb 125
Transit And Intercity Rail Capital Program Funding For Grade Separation Planning and Design Work With The City Of Banning Resolution 2024- 161
807
Agreement No. XX-XX-XXX- 00
AGREEMENT FOR THE FUNDING OF SB 125
TRANSIT AND INTERCITY RAIL CAPITAL PROGRAM FUNDING FOR GRADE
SEPARATION PLANNING AND DESIGN WORK WITH THE CITY OF BANNING
1. Parties and Date.
1.1 This Agreement is made and entered into this _ day of ___ _, 2024, by and between the RIVERSIDE COUNTY TRANSPORTATION COMMISSION (" RCTC") and CITY OF BANNING (" City"). RCTC and City are sometimes collectively referred to herein as the Parties".
2. Recitals.
2.1 RCTC is a county transportation commission created and existing pursuant to California Public Utilities Code Sections 130053 and 130053. 5.
2.2 Transit and Intercity Rail Capital Program ( TIRCP) was created by the state as a competitive program in 2014 to provide grants from the Greenhouse Gas Reduction Fund ( GGRF) via cap- and- trade proceeds to fund transformative capital improvements that will modernize California' s intercity, commuter, and urban rail systems, and bus systems, to significantly reduce emissions of greenhouse gases, vehicle miles traveled, and congestion. In July 2023 AB 102 and SB 125 amended the Budget Act of 2023 to appropriate about $ 4 billion of state general funds to the TIRCP over the next two years.
2.3 SB 125 Formula- Based TIRCP establishes funding for transit operations and capital improvements, and grade separations and rail crossing improvements to be funded by the TIRCP.
2.4 RCTC intends, by this Agreement, to distribute TIRCP funding {" TIRCP Funds"), subject to the conditions provided herein, and to participate in the joint development of the Project, as defined herein.
2.5 The Parties acknowledge that certain state requirements apply to the TIRCP Funds, and City shall be obligated to comply with all TIRCP funding requirements as set forth in Exhibit D" (" TIRCP Funding Requirements").
3. Terms.
3.1 Description of Work. This Agreement is intended to distribute TIRCP Funds to the City for the PA& ED - Project Approvals & Environmental Document and PS& E - Plans, Specifications and Estimates phases ofthe Hargrave Avenue/ UPRR Grade Separation Project (" the Work"). The Work, including a timetable and a detailed scope of work, is more fully described in Exhibit " A" attached hereto and, pursuant to Section 3.15 below, is subject to modification as requested by the City and approved by RCTC. It is understood and agreed that the City shall expend 1 808
TIRCP Funds only as set forth in this Agreement and only for the Work. To this end, any use of funds provided pursuant to this Agreement shall be subject to the review and approval of RCTC.
3.2 RCTC Funding Amount. RCTC hereby agrees to distribute to the City, on the terms and conditions set forth herein, a sum not to exceed Five Million Dollars ($ 5,000, 000), to be used exclusively for reimbursing the City for eligible Work expenses as described herein (" Funding Amount"). The City acknowledges and agrees that the Funding Amount may be less than the actual cost of the Work, and that RCTC shall not contribute TIRCP Funds in excess of the maximum authorized in this section.
3 .2.1 Eligible Work Costs. The total Work costs (" Total Work Cost") may include the following items, provided that such items are included in the scope of work attached as Exhibit A": ( 1) City and/ or consultant costs associated with direct Work coordination and support; ( 2) funds expended for preparation of preliminary engineering studies; ( 3) funds expended for preparation of environmental review documentation for the Work; and ( 4) costs incurred in the preparation of plans, specification, and estimates by City or consultants.
3.2.2 Ineligible Work Costs. The Total Work Cost shall not include the following items which shall be borne solely by the City without reimbursement: ( 1) City administrative costs; 2) City costs attributed to the preparation of invoices, billings and payments; ( 3) any City fees attributed to the processing of the Work; ( 4) expenses for items of work not included within the scope of work in Exhibit " A"; ( 5) any costs that are not in compliance with the TIRCP Funding Requirements.
3.3 City' s Funding Obligation to Complete the Work. In the event that the TIRCP Funds allocated to the Work represent less than the total cost of the Work, the City shall provide such additional funds as may be required to complete the Work as described in Exhibit " A".
3.3.1 City' s Obligation to Repay TIRCP Funds to RCTC. In the event that: ( i) the City, for any reason, determines not to proceed with or complete the Work; or (ii) the Work is not timely completed, subject to any extension of time granted by RCTC pursuant to Section 3 .15; the City agrees that any TIRCP Funds that were distributed to the City for the Work shall be repaid in full to RCTC. The Parties shall enter into good faith negotiations to establish a reasonable repayment schedule and repayment mechanism. Notwithstanding the foregoing, iffunding under this Agreement is provided for project approval and environmental documentation ( PA& ED) and the City determines to not complete the Work based on findings made in the PA&ED, the City shall not be required to repay that p01iion of the TIRCP Funds that were distributed to the City for the PA& ED Work.
3.3.2 City' s Local Match Contribution. There is no local match requirement for this award.
3.4 Work Responsibilities of the City. The City shall be responsible for the following aspects of the Work, in compliance with state and federal law provided that such items are included in the Project scope of work attached as Exhibit " A": PA& ED, and project specifications and engineer' s estimate ( PS& E).
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3.5 Term/ Notice of Completion. The term of this Agreement shall be from the date first herein above written until: ( i) the date RCTC fonnally accepts the Work as complete, pursuant to Section 3.1; ( ii) tennination of this Agreement pursuant to Section 3.9; or (iii) the City has fully satisfied its obligations under this Agreement, " including full repayment of TIRCP Funds to RCTC as provided herein". All applicable indemnification provisions of this Agreement shall remain in effect following the termination of this Agreement.
3.6 Representatives of the Parties. RCTC' s Executive Director, or his or her designee, shall serve as RCTC' s representative and shall have the authority to act on behalf of RCTC for all purposes under this Agreement. The City hereby designates Art Vela, Director of Public Works, or his or her designee, as the City' s representative to RCTC. The City' s representative shall have the authority to act on behalf of the City for all purposes under this Agreement and shall coordinate all activities of the Work under the City' s responsibility. The City shall work closely and cooperate fully with RCTC' s representative and any other agencies which may have jurisdiction over or an interest in the Work.
3.7 Expenditure of Funds by City Prior to Execution of Agreement. Nothing in this Agreement shall be construed to prevent or preclude the City from expending funds on the Work prior to the execution of the Agreement, or from being reimbursed by RCTC for such expenditures.
However, the City understands and acknowledges that any expenditure offunds on the Work prior to the execution of the Agreement is made at the City' s sole risk, and that some expenditures by the City may not be eligible for reimbursement under this Agreement.
3.8 Review of Services. The City shall allow RCTC' s Representative to inspect or review the progress of the Work at any reasonable time in order to determine whether the tenns of this Agreement are being met.
3.9 Tennination. This Agreement may be tenninated for cause or convenience as further specified below.
3.9.1 Termination for Convenience.
3.9.1.1 Notice. Either RCTC or the City may, by written notice to the other paiiy, tenninate this Agreement, in whole or in part, for convenience by giving thirty ( 30) days' written notice to the other party of such tern1ination and specifying the effective date thereof.
3.9.1.2 Effect of Termination for Convenience. In the event that the City tenninates this Agreement for convenience, the City shall, within 180 days, repay to RCTC in full all TIRCP Funds provided to the City under this Agreement. In the event that RCTC terminates this Agreement for convenience, RCTC shall, within 90 days, distribute to the City TIRCP Funds in an amount equal to the aggregate total of all unpaid invoices which have been received from the City regarding the Work at the time of the notice of termination; provided, however, that RCTC shall be entitled to exercise its rights under Section 3 .14.2, including but not limited to conducting a review of the invoices and requesting additional inforn1ation. This Agreement shall terminate upon receipt by the non- terminating party of the amounts due it under this Section 3.9.1.2. 3 810
3.9.2 Termination for Cause.
3.9.2.1 Notice. Either RCTC or the City may, by written notice to the other party, terminate this Agreement, in whole or in part, in response to a material breach hereof by the other party, by giving written notice to the other party of such tennination and specifying the effective date thereof. The written notice shall provide a 30- day period to cure any alleged breach.
During the 30- day cure period, the Parties shall discuss, in good faith, the manner in which the breach can be cured.
3.9.2.2 Effect ofTennination for Cause. In the event that the City tenninates this Agreement in response to RCTC' s uncured material breach hereof, RCTC shall, within 90 days, distribute to the City TIRCP Funds in an amount equal to the aggregate total of all unpaid invoices which have been received from the City regarding the Work at the time of the notice oftennination.
In the event that RCTC terminates this Agreement in response to the City' s uncured material breach hereof, the City shall, within 180 days, repay to RCTC in full all TIRCP Funds provided to the City under this Agreement. Notwithstanding termination of this Agreement by RCTC pursuant to this Section 3. 9.2.2, RCTC shall be entitled to exercise its rights under Section 3.14.2, including but not limited to conducting a review of the invoices and requesting additional information. This Agreement shall terminate upon receipt by the terminating party of the amounts due it under this Section 3.9.2.2.
3.9.3 Cumulative Remedies. The rights and remedies ofthe Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement. 3 .10 Prevailing Wages. The City and any other person or entity hired to perfonn services on the Work are alerted to the requirements of California Labor Code Sections 1770 et seq., which would require the payment of prevailing wages were the services or any portion thereof determined to be a public work, as defined therein. The City shall ensure compliance with these prevailing wage requirements by any person or entity hired to perform the Work. The City shall defend, indemnify, and hold harmless RCTC, its officers, employees, consultants, and agents from any claim or liability, including without limitation attorneys, fees, arising from its failure or alleged failure to comply with California Labor Code Sections 1770 et seq.
3.11 Progress Reports. RCTC may request the City to provide RCTC with progress reports concerning the status of the Work.
3 .12 Indemnification.
3.12.1 City Responsibilities. In addition to the indemnification required under Section 3.10, the City agrees to indemnify and hold hannless RCTC, the State of California, their officers, agents, consultants, and employees from any and all claims, demands, costs or liability arising from or connected with all activities governed by this Agreement including all design and construction activities, due to any act of the City or its subcontractors whatsoever, regardless of fault, including negligent acts, errors or omissions or willful misconduct, except that caused by the sole negligence of RCTC. The City will reimburse RCTC for any expenditures, including 4 811
reasonable attorneys' fees, incurred by RCTC, in defending against claims ultimately detennined to be due to any act of the City or its subcontractors whatsoever, regardless offault, including negligent acts, errors or omissions or willful misconduct, except that caused by the sole negligence of RCTC.
3.12.2 Effect of Acceptance. The City shall be responsible for the professional quality, technical accuracy and the coordination of any services provided to complete the Work.
RCTC' s review, acceptance or funding of any services perfonned by the City or any other person or entity under this agreement shall not be construed to operate as a waiver of any rights RCTC may hold under this Agreement or of any cause of action arising out ofthis Agreement. Further, the City shall be and remain liable to RCTC, in accordance with applicable law, for all damages to RCTC caused by the City' s performance of this Agreement or supervision of any services provided to complete the Work.
3 .13 Insurance. The City shall require, at a minimum, all persons or entities hired to perform the Work to obtain, and require their subcontractors to obtain, insurance of the types and in the amounts described below and satisfactory to the City and RCTC. Such insurance shall be maintained throughout the term of this Agreement, or until completion of the Work, whichever occurs last.
3 .13 .1 Commercial General Liability Insurance. Occurrence version commercial general liability insurance or equivalent forn1 with a combined single limit of not less than 2,000, 000. 00 per occurrence. If such insurance contains a general aggregate limit, it shall apply separately to the Work or be no less than two times the occurrence limit. Such insurance shall:
3.13.1.1 Name RCTC and City, and their respective officials, officers, employees, agents, and consultants as irisured with respect to perfonnance of the services on the Work and shall contain no special limitations on the scope of coverage or the protection afforded to these insured;
3 .13 .1.2 Be primary with respect to any insurance or self insurance programs covering RCTC and City, and/ or their respective officials, officers, employees, agents, and consultants; and
3.13.1.3 Contain standard separation of insured provisions. 3 .13 .2 Business Automobile Liability Insurance. Business automobile liability insurance or equivalent form with a combined single limit of not less than $ 1,000, 000. 00 per occurrence. Such insurance shall include coverage for owned, hired and non- owned automobiles. 3 .13 .3 Professional Liability Insurance. Errors and omissions liability insurance with a limit of not less than $ 1,000, 000. 00 Professional liability insurance shall only be required of design or engineering professionals.
3 .13 .4 Workcrs' Compensation Insurance. Workers' compensation insurance with statutory limits and employers' liability insurance with limits of not less than $ 1,000, 000. 00 each accident.
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3.14 Procedures for Distribution ofTIRCP Funds to City. 3 .14.1 Initial Payment by the City. The City shall be responsible for initial payment of all the Work costs as they are incurred. Following payment of such Work costs, the City shall submit invoices to RCTC requesting reimbursement of eligible Work costs. Each invoice shall be accompanied by detailed contractor invoices, or other demands for payment addressed to the City, and documents evidencing the City' s payment of the invoices or demands for payment. The City shall submit invoices not more often than monthly and not less often than quarterly.
3.14. 2 Review and Reimbursement by RCTC. Upon receipt ofan invoice from the City, RCTC may request additional documentation or explanation of the Work costs for which reimbursement is sought. Undisputed amounts shall be paid by RCTC to the City within thirty ( 30) days. In the event that RCTC disputes the eligibility of the City for reimbursement of all or a portion of an invoiced amount, the Parties shall meet and confer in an attempt to resolve the dispute. Ifthe meet and confer process is unsuccessful in resolving the dispute, the City may appeal RCTC' s decision as to the eligibility of one or more invoices to RCTC' s Executive Director. The City may appeal the decision of the Executive Director to the full RCTC Board, the decision of which shall be final. Additional details concerning the procedure for the City' s submittal of invoices to RCTC and RCTC' s consideration and payment of submitted invoices are set forth in Exhibit " C", attached hereto.
3 .14.3 Funding Amount/ Adjustment. If a post Work audit or review indicates that RCTC has provided reimbursement to the City in an amount in excess of the maximum TIRCP Funds provided for in section 3.2 of this Agreement, or has provided reimbursement of ineligible Work costs including, but not limited to, any costs not in compliance with TIRCP Funding Requirements, the City shall reimburse RCTC for the excess or ineligible payments within 30 days of notification by RCTC.
3.15 Work Amendments. Changes to the characteristics of the Work, including the deadline for Work completion, and any responsibilities of the City or RCTC may be requested in writing by the City and are subject to the approval ofRCTC' s Representative, which approval will not be unreasonably withheld, provided that extensions of time for completion of the Work shall be approved in the sole discretion of RCTC' s Representative. Nothing in this Agreement shall be construed to require or allow completion of the Work without full compliance with the California Environmental Quality Act ( Public Resources Code Section 21000 et seq.; " CEQA") and the National Environmental Policy Act of 1969 ( 42 USC 4231 et seq.), but the necessity of compliance with CEQA and NEPA shall not justify, excuse, or permit a delay in completion of the Work.
3.16 Conflict of Interest. For the term of this Agreement, no member, officer or employee of the City or RCTC, during the tenn of his or her service with the City or RCTC, as the case may be, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.17 Limited Scope of Duties. RCTC' s and the City' s duties and obligations under this Agreement are limited to those described herein. RCTC has no obligation with respect to the safety 6 813
of any Work performed at a job site. In addition, RCTC shall not be liable for any action of City or its contractors relating to the condemnation of property undertaken by City or construction related to the Work.
3.18 Books and Records. Each party shall maintain complete, accurate, and clearly identifiable records with respect to costs incurred for the Work under this Agreement. They shall make available for examination by the other. party, its authorized agents, officers or employees and the State Auditor any and all ledgers and books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or related to the expenditures and disbursements charged to the other party pursuant to this Agreement. Further, each party shall furnish to the other party, its agents or employees and the State Auditor such other evidence or information as they may require with respect to any such expense or disbursement charged by them. All such infonnation shall be retained by the Parties for at least three ( 3) years following tennination of this Agreement, and they shall have access to such information during the three- year period for the purposes ofexamination or audit.
3.19 Equal Opportunity Employment. The Parties represent that they are equal opportunity employers, and they shall not discriminate against any employee or applicant of reemployment because of race, religion, color, national origin, ancestry, sex or age. Such nondiscrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
3.20 Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. Venue shall be in Riverside County. 3 .21 Attorneys' Fees. Ifeither party commences an action against the other party arising out ofor in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys' fees and costs of suit.
3.22 Time of Essence. Time is of the essence for eacl1 and every provision of this Agreement.
3.23 Headings. Article and Section Headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein.
3.24 Notification. All notices hereunder and communications regarding interpretation of the terms of the Agreement or changes thereto shall be provided by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid and addressed as follows:
CITY OF BANNING
99 E. Ramsey St
Banning, CA 92220
ATTN: City Manager
RCTC
Riverside County Transportation Commission
4080 Lemon Street, 3rd Floor
Mailing address: P.O. Box 12008
Riverside, CA 92501
ATTN: Executive Director
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Any notice so given shall be considered served on the other party three ( 3) days after deposit in the U.S. mail, first class postage prepaid, return receipt requested, and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred regardless of the method of service.
3.25 Conflicting Provisions. In the event that provisions of any attached appendices or exhibits conflict in any way with the provisions set forth in this Agreement, the language, tern1s and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties' understanding concerning the perfonnance of the Services.
Notwithstanding the foregoing, in the case of any conflict between the Funding Requirements set forth in Exhibit " D" and the tenns of this Agreement, the Funding Requirements shall govern.
3.26 Contract Amendment. In the event that the Parties determine that the provisions of this Agreement should be altered, the Parties may execute a contract amendment to add any provision to this Agreement or delete or amend any provision of this Agreement. All such contract amendments must be in the form of a written instrument signed by the original signatories to this Agreement, or their successors or designees.
3.27 Entire Agreement. This Agreement constih1tes the entire agreement between the Parties relating to the subject matter hereof and supersedes any previous agreements or understandings.
3.28 No Waiver. Failure ofRCTC to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times.
3 .29 Validity of Agreement. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
3.30 Independent Contractors. Any person or entities retained by the City or any contractor shall be retained on an independent contractor basis and shall not be employees ofRCTC.
Any personnel performing services on the Work shall at all times be under the exclusive direction and control of the City or contractor, whichever is applicable. The City or contractor shall pay all wages, salaries and other amounts due such personnel in connection with their performance of services on the Work and as required by law. The City or consultant shall be responsible for all reports and obligations respecting such personnel, including, but not limited to, social security taxes, income tax withholding, unemployment insurance and workers' compensation insurance.
3.31 Incorporation of Recitals and Exhibits. The recitals set forth above are true and correct and are incorporated into this Agreement by reference as if fully set forth herein. Exhibits A" through " D" attached to this Agreement are incorporated herein by reference. 8 815
3.32 Survival. All rights and obligations hereunder that by theirnature are to be performed after any expiration or tem1ination of this Agreement shall survive any such expiration or termination.
3.33 No Third- Party Beneficiaries. There are no intended third- party beneficiaries ofany right or obligation assumed by the Parties.
3.34 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.35 Electronically Transmitted Signatures. A manually signed copy of this Agreement which is transmitted by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Agreement for all purposes.
SIGNATURES ON FOLLOWING PAGE.]
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SIGNATURE PAGE
TO
AGREEMENT FOR THE FUNDING OF SB 125
TRANSIT AND INTERCITY RAIL CAPITAL PROGRAM FUNDING FOR GRADE
SEPARATION PLANNING AND DESIGN WORK
RIVERSIDE COUNTY
TRANSPORTATION COMMISSION
By:
Aaron Hake, Executive Director
APPROVED AS TO FORM:
By:
Best, Best & Krieger
Counsel to the Riverside County
Transportation Commission
10 CITY OF BANNING
By:
Doug Schulze, City Manager
ATTEST:
By:
Marie Calderon, City Clerk
APPROVED AS TO FORM:
By:
Serita Young, City
Attorney
817
EXHIBIT " A"
SCOPE OF WORK,
FUNDING AND TIMETABLE
SCOPE OF WORK: Preliminary Engineering, Environmental Documentation, and Plans, Specifications, and Estimates to construct a grade separation of Hargrave Ave and the Union Pacific Rail Road in the City of Banning. Project is located on Hargrave Ave from Lincoln Street to Ramsey Street, and includes lowering of Ramsey Street under the existing railroad, construction of a railroad overcrossing, freeway ramp modifications for both eastbound and westbound ramps, and roadway widening of Hargrave Street from Lincoln Street to the eastbound freeway ramps from 2-lanes to 4-lanes.
FUNDING:
PHASE TIRCPFund FEDERAL LOCAL TOTAL
RCE GRANT}
Preliminary $ 5,000, 000 $ 2,800, 000 $ 500, 000 $ 8,300, 000 Engineering ( PAED
PSE)
TOTAL $ 5,000, 000 $ 2,800, 000 $ 500, 000 $ 8,300, 000 TIMETABLE: Provide at a minimum the beginning and ending dates for each phase of work including major milestones within a phase.
PHASE START DATE END DATE COMMENTS
PAED 10/ 2024 7/2029 300 Working Days
NEPA Completion 6/2026 6/2029 300 Working Days
PSE 8/2027 8/2029 250 Working Days
Exhibit A
17336.00030\ 42137870. 1
818
EXHIBIT " B"
PROJECT LOCATION MAP
l Il
Ex hibi t B
I 7336.00030\ 42 137870. I
819
EXHIBIT " C"
PROCEDURES FOR SUBMITTAL, CONSIDERATION AND
PAYMENT OF INVOICES
1. RCTC recommends that the City incorporate Exhibit " C- 1" into its contracts with any subcontractors to establish a standard method for preparation of invoices by contractors to the City and ultimately to RCTC for reimbursement of City contractor costs.
2. Each month the City shall submit an invoice for eligible Work costs incurred during the preceding month. The original invoice shall be submitted to RCTC' s Executive Director with a copy to RCTC' s Project Coordinator. Each invoice shall be accompanied by a cover letter in a format substantially similar to that of Exhibit " C- 2".
3. Each invoice shall include documentation from each contractor used by the City for the Work, listing labor costs, subcontractor costs, and other expenses. Each invoice shall also include a monthly progress report and spreadsheets showing the hours or amounts expended by each contractor or consultant for the month and for the entire Work to date. A sample progress report is attached as Exhibits " C- 4". All documentation from the City' s contractors should be accompanied by a cover letter in a format substantially similar to that of Exhibit C-3".
4. If the City is seeking reimbursement for direct expenses incurred by City staff for eligible Work costs, the City shall detail the same level ofinformation for its labor and any expenses in the same level of detail as required of contractors pursuant to Exhibit " C" and its attachments.
5. Charges for each task and milestone listed in Exhibit " A" shall be listed separately in the invoice.
6. Each invoice shall include a certification signed by the City Representative or his or her designee which reads as follows:
I hereby certify that the hours and salary rates submitted for reimbursement in this invoice are the actual hours and rates worked and paid to the consultants or contractors listed.
Signed _____________ _
Title ----------------
Date ----------------
Invoice No. -------------
Exhibit C
I7336. 00030\ 42137870. I
820
7. RCTC will pay the City within 30 days after receipt by the Commission of an invoice. If RCTC disputes any portion of an invoice, payment for that portion will be withheld, without interest, pending resolution of the dispute, but the uncontested balance will be paid.
8. The final payment under this Agreement will be made only after: ( i) the City has obtained a Release and Certificate of Final Payment from each contractor or consultant used on the Work; ( ii) the City has executed a Release and Certificate ofPinal Payment; and ( iii) the City has provided copies of each such Release to RCTC.
Exhibit C
l7336.00030\42137870. l
821
EXHIBIT " C-1"
ELEMENTS OF COMPENSATION
For the satisfactory performance and completion of the Work under this Agreement, City will pay the Consultant compensation as set forth herein. The total compensation for this service shall not exceed (_ INSERT WRITTEN DOLLAR AMOUNT_) ($_ INSERT NUMERICAL DOLLAR AMOUNT_) without written approval of City' s City Engineer (" Total Compensation").
1. ELEMENTS OF COMPENSATION.
Compensation for the Work will be comprised of the following elements: 1.1 Direct Labor Costs; 1.2 Fixed Fee; and 1.3 Additional Direct Costs.
1.1 DIRECT LABOR COSTS.
Direct Labor costs shall be paid in an amount equal to the product of the Direct Salary Costs and the Multiplier which are defined as follows:
1.1.1 DIRECT SALARY COSTS
Direct Salary Costs are the base salaries and wages actually paid to the Consultant' s personnel directly engaged in perfonnance of the Work under the Agreement. ( The range of hourly rates paid to the Consultant' s personnel appears in Section 2 below.)
1.1.2 MULTIPLIER
The Multiplier to be applied to the Direct Salary Costs to determine the Direct Labor Costs is ________ , and is the sum of the following components:
1.1.2.1 Direct Salary Costs
1.1.2.2 Payroll Additives
The Decimal Ratio ofPayroll Additives to Direct Salary Costs. Payroll Additives include all employee benefits, allowances for vacation, sick leave, and holidays, and company portion of employee insurance and social and retirement benefits, all federal and state payroll taxes, premiums for insurance which are measured by payroll costs, and other contributions and benefits imposed by applicable laws and regulations.
Exhibit " C- 1"
17336. 00030\ 42137870. l
822
1.2 FIXED FEE.
1.1.2.3 Overhead Costs
The Decimal ratio of Allowable Overhead Costs to the Consultant Firm' s Total Direct Salary Costs. Allowable Overhead Costs include general, administrative and overhead costs of maintaining and operating established offices, and consistent with established firm policies, and as defined in the Federal Acquisitions Regulations, Part 31.2.
Total Multiplier
sum of l.1. 2. 1, 1.1.2.2, and 1.1.2.3)
1.2.1 A Fixed Fee of _______ shall be paid to Consultant for Consultant' s complete and satisfactory performance of this Agreement and all Services required.
The Fixed Fee shall be paid in monthly installments based upon the percentage ofthe Services completed at the end of each billing period, as determined in the sole discretion of the City. Consultant shall not be entitled to and shall forfeit any portion of the Fixed Fee not earned as provided herein.
1.2.2 A pro- rata share of the Fixed Fee shall be applied to the total Direct Labor Costs expended for services each month, and shall be included on each monthly invoice.
1.3 ADDITIONAL DIRECT COSTS.
Additional Direct Costs directly identifiable to the performance of the services of this Agreement shall be reimbursed at the rates below, or at actual invoiced cost.
Rates for identified Additional Direct Costs are as follows:
ITEM
Per Diem
Car mileage
Travel
Computer Charges
Photocopies
Blueline
LD Telephone
Fax
Photographs
I7336. 00030\ 42137870. 1
REIMBURSEMENT RA TE
l_insertcharges__ J
day
mile
trip
hour
copy
sheet
call
sheet
sheet
Exhibit " C- 1"
823
Travel by air and travel in excess of 100 miles from the Consultant' s office nearest to City' s office must have City' s prior written approval to be reimbursed under this Agreement.
2. DIRECT SALARY RA TES
Direct Salary Rates, which are the range of hourly rates to be used in determining Direct Salary Costs in Section 1.1.1 above, are given below and are subject to the following:
2.1 Direct Salary Rates shall be applicable to both straight time and overtime work, unless payment of a premium for overtime work is required by law, regulation or craft agreement, or is otherwise specified in this Agreement. In such event, the premium portion of Direct Salary Costs will not be subject to the Multiplier defined in Paragraph 1.1.2 above.
2.2 Direct Salary Rates shown herein are in effect for one year following the effective date of the Agreement. Thereafter, they may be adjusted annually to reflect the Consultant' s adjustments to individual compensation. The Consultant shall notify City in writing prior to a change in the range of rates included herein, and prior to each subsequent change.
POSITION OR CLASSIFICATION RANGE OF HOURLY RATES
sample_/
Principal
Project Manager
Sr. Engineer/ Planner
Project Engineer/ Planner
Assoc. Engineer/ Planner
Technician
Drafter/ CADD Operator
Word Processor
00 -$ . 00/ hour
00 -$ . 00/ hour
00 -$ . 00/ hour
00 -$ . 00/ hour
00 -$ . 00/ hour
00 -$ . 00/ hour
00 -$ . 00/ hour
00 -$ . 00/ hour
2.3 The above rates are for the Consultant only. All rates for subconsultants to the Consultant will be in accordance with the Consultant' s cost proposal.
3. INVOICING.
3.1 Each month the Consultant shall submit an invoice for Work performed during the preceding month. The original invoice shall be submitted to City' s City Engineer with two ( 2) copies to City' s Project Coordinator.
3 .2 Charges shall be billed in accordance with the terms and rates included herein, unless otherwise agreed in writing by City' s Representative.
Exhibit " C- 1"
17336. 00030\ 42137870. I
824
3.3 Base Work and Extra Work shall be charged separately, and the charges for each task and Milestone listed in the Scope of Work, shall be listed separately. The charges for each individual assigned by the Consultant under this Agreement shall be listed separately on an attachment to the invoice.
3.4 A charge of $500 or more for any one item of Additional Direct Costs shall be accompanied by substantiating documentation satisfactory to City such as invoices, telephone logs, etc.
3.5 Each copy of each invoice shall be accompanied by a Monthly Progress Report and spreadsheets showing hours expended by task for each month and total project to date.
3.6 Each invoice shall indicate payments to DBE subconsultants or supplies by dollar amount and as a percentage of the total invoice.
3.7 Each invoice shall include a certification signed by the Consultant' s Representative or an officer of the firm which reads as follows:
I hereby certify that the hours and salary rates charged in this invoice are the actual hours and rates worked and paid to the employees listed.
Signed
Title
Date
Invoice No.
4. PAYMENT
4.1 City shall pay the Consultant within four to six weeks after receipt by City of an original invoice. Should City contest any portion of an invoice, that portion shall be held for resolution, without interest, but the uncontested balance shall be paid.
The final payment for Work under this Agreement will be made only after the Consultant has executed a Release and Certificate of Final Payment.
Exhibit " C- 1"
17336.00030\ 42137870. 1
825
Date
Mr. Aaron Hake
Executive Director
EXHIBIT " C-2"
SAMPLE COVER LETTER TO RCTC
Riverside County Transportation Commission
4080 Lemon Street, 3rd Floor
Riverside, CA 92501
ATTN: Accounts Payable
Re: Project Title - Invoice #_
Enclosed for your review and payment approval is the City of ______ ' s invoice for professional and technical services that was rendered by our contractors in connection with the Agreement No. ____ effective ( Month/ Day/ Year). The required support documentation received from each contractor is included as backup to the invoice.
Invoice period covered is from Month/ DateN ear to Month/ Date/ Year.
Total Authorized Agreement Amount:
Total Invoiced to Date:
Total Previously Invoiced:
Balance Remaining:
Amount due this Invoice:
0,000, 000. 00
0,000, 000. 00
0,000, 000. 00
0,000, 000. 00
0,000, 000. 00
I certify that the hours and salary rates charged in this invoice are the actual hours and rates worked and paid to the contractors listed.
By:
Name
Title
cc:
l7336.00030\ 42137870. 1
Exhibit " C- 2"
826
EXHIBIT " C-3"
SAMPLE LETTER FROM CONTRACTOR TO CITY/ COUNTY
Month/ Date/ Year
Attn: Accounts Payable Invoice# -----
For [ type of services] rendered by [ contractor name] in connection with [ name of project] This is per agreement No. XX-XX-XXX effective Month/ Date/ Year.
Invoice period covered is from Month/ Date/ Year to Month/ Date/ Year.
Total Base Contract Amount:
Authorized Extra Work ( ifApplicable)
TOTAL AUTHORIZED CONTRACT AMOUNT:
Total Invoice to Date:
Total Previously Billed:
Balance Remaining:
Amount Due this Invoice:
000, 000. 00
000, 000. 00
000, 000. 00
000, 000. 00
000, 000. 00
000, 000. 00
000, 000. 00
I certify that the hours and salary rates charged in this invoice are the actual hours and rates worked and paid to the employees listed,
By:---------
Name
Title
Exhibit " C- 3"
17336.00030\42137870. l
827
REPORTING PERIOD:
PROGRESS REPORT:
EXHIBIT " C-4"
SAMPLE PROGRESS REPORT
Month/ Date/ Year to Month/ Date/ Year
1 A. Activities and Work Completed during Current Work Periods TASK 0 1 - I00% PS& E SUBMITTAL
1. Responded to Segment 1 comments from Department of Transportation
2. Completed and submitted Segment l final PS& E
B. Current/ Potential Problems Encountered & Corrective Action Problems Corrective Action
None None
C. Work Planned Next Period
TASK 01 - 100% PS& E SUBMITTAL
1. Completing and to submit Traffic Signal and Electrical Design plans
2. Responding to review comments
Exhibit C- 4
17336.00030\ 42137870. 1
828
TIRCP FUNDING REQUIREMENTS
As used herein, the tem1 " Recipient" shall refer to the City.
Section 1. Third Party Contracting
1. Recipient shall not award a construction contract over $ 10,000 or other contracts over 25, 000 [ excluding professional service contracts of the type which are required to be procured in accordance with Government Code Sections 4525 ( d), ( e) and ( t)] on the basis of a noncompetitive negotiation for work to be performed under this Agreement without the prior written approval of State. Contracts awarded by Recipient, ifintended as local match credit, must meet the requirements set forth in this Agreement regarding local match funds.
2. Procurement of architectural and engineering services shall be in accordance with the requirements set forth in the Chapter 10 of the Caltrans Local Assistance Procedures Manual applicable to state funded agreements.
3. Any subcontract entered into by Recipient as a result of this Agreement shall contain the Provisions of Section 2. Audits and Reports and shall mandate that travel and per diem reimbursements and third- party contract reimbursements to subcontractors will be allowable as Project costs only after those costs are incurred and paid for by the subcontractors
3. In addition to the above, the preaward requirements of third party contractor/ consultants with local transit agencies should be consistent with Caltrans Local Program Procedures ( LPP- 00- 05).
Section 2. Audits and Reports
A. Cost Principles
1. Recipient agrees to comply with Title 2 Code of Federal Regulations 200 ( 2 CFR 200) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
2. Recipient agrees, and will assure that its contractors and subcontractors will be obligated to agree to follow 2 CFR 200 and it shall be used to determine the allowability of individual Project cost items. Every sub- recipient receiving Project funds as a contractor or sub- contractor under this Agreement shall comply with 2 CFR 200.
3. Any Project costs for which Recipient has received payment or credit that are detennined by subsequent audit to be unallowable under 2 CFR 200, are subject to repayment by Recipient to Commission.
4. The Commission may terminate this Agreement for any reason at any time ifit is determined by the Commission or the State, based on an audit under this section, that there has been a violation of any State or federal law or policy by the Recipient during performance under this Agreement. If I7336. 00030\ 42137870. I
Exhibit D
1 829
the Agreement is terminated under this section, the Recipient may be required to fully or partially repay funds.
B. Record Retention
1. Recipient agrees, and will assure that its contractors and subcontractors shall establish and maintain an accounting system and records that properly accumulate and segregate incurred Project costs and matching funds by line item for the Project. The accounting system of Recipient, its contractors and all subcontractors shall conform to Generally Accepted Accounting Principles GAAP), enable the determination of incurred costs at interim points of completion, and provide support for reimbursement payment vouchers or invoices. All accounting records and other supporting papers of Recipient, its contractors and subcontractors connected with Project performance under this Agreement shall be maintained for a minimum of three ( 3) years from the date of final payment to Recipient under this Agreement and shall be held open to inspection, copying, and audit by representatives of the Commission, State, the California State Auditor, and auditors representing the federal government. Copies thereof will be furnished by Recipient, its contractors, and subcontractors upon receipt of any request made by State or its agents. In conducting an audit of the costs and match credits claimed under this Agreement. The Commission and State will rely to the maximum extent possible on any prior audit of Recipient pursuant to the provisions of federal and State law. In the absence of such an audit, any acceptable audit work performed by Recipient' s external and internal auditors may be relied upon and used by Commission or State when planning and conducting additional audits.
2. For the purpose of determining compliance with Title 21, California Code of Regulations, Section 2500 et seq., when applicable, and other matters connected with the performance of Recipient' s contracts with third parties pursuant to Government Code section 8546. 7, Recipient, Recipient' s contractors and subcontractors and Commission shall each maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of such contracts, including, but not limited to, the costs of administering those various contracts. All of the above referenced parties shall make such Agreement materials available at their respective offices at all reasonable times during the entire Project period and for three ( 3) years from the date of final payment to Recipient under this Agreement. The Commission, the State, the California State Auditor, or any duly authorized representative of State or the United States Department of Transportation, shall each have access to any books, records, and documents that are pertinent to the Project for audits, examinations, excerpts, and transactions, and Recipient shall furnish copies thereof if requested.
3. Recipient, its contractors and subcontractors will pern1it access to all records of employment, employment advertisements, employment application forms, and other pertinent data and records by the Commission, the State Fair Employment Practices and Housing Commission, or any other agency of the State of California designated by State, for the purpose of any investigation to ascertain compliance with this Agreement and the Act.
C. Reporting Requirements
17336.00030\ 42137870. 1
Exhibit D
2 830
1. Subject to the discretion of Commission, Recipient agrees to provide on a quarterly basis, Project Progress Reports that include the following information, as applicable:
a. Activities and progress made towards implementation of the project; b. Identification of whether the Project is proceeding on schedule and within budget; c. Identification of changes to the Project funding plan; d. Any actual or anticipated problems which could lead to delays in schedule, increased costs or other difficulties for either the Project or other State funded projects impacted by the Projects scope of work;
e. Identify metrics and benefits achieved for disadvantaged communities, low income communities, and/ or low income households;
f. Reporting requirements per California Air Resource Board Cap and Trade Auction Proceeds Funding Guidelines for Agencies that Administer California Climate Investments which may include, continued reporting following project implementation to identify benefits achieved.
2. Reporting requirements of Recipient will include whether reported implementation activities are within the scope of the Project and in compliance with State laws, regulations, and administrative requirements.
3. Within one year of the Project or reportable Project components becoming operable, the implementing agency must provide a final delive1y report including at a minimum:
a. Scope of completed Project as compared to programmed Project; b. Performance outcomes derived from the project as compared to outcomes described in the Project application and shall include but not be limited to before and after measurements and estimates for ridership, service levels, greenhouse gas reductions, updated estimated greenhouse gas reductions over the life of the project, benefits to disadvantaged communities, low income communities, and/ or low income households, and project co- benefits as well as an explanation of the methodology used to quantify the benefits.
Section 3. Special Requirements
Non- Discrimination Clause
1. In the performance of work under this Agreement, Recipient, its contractor( s) and all subcontractors, shall not unlawfully discriminate, harass or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability, mental disability, medical condition, age, marital status, family and medical care leave, pregnancy leave, and disability leave. Recipient, its contractor( s) and all subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Recipient, its contractor( s) and all subcontractors shall comply with the provisions of the Fair Employment and Housing Act ( Government Code section 12900 et seq.), and the applicable regulations promulgated thereunder ( California Code of Regulations, Title 2, section 7285 et seq.). The applicable regulations of the Fair Employment and.
Housing Commission implementing Government Code section 12990 ( a- t), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Each of Recipient' s contractors and all subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreements, as appropriate.
Exhibit D
3 17336.00030\ 42137870. 1
831
2. Each of the Recipient' s contractors, subcontractors, and/ or subrecipients shall give written notice of their obligations under this clause to labor organizations with which they have collective bargaining or other labor agreements. The Recipient shall include the nondiscrimination and compli ance provisions hereof in all contracts and subcontracts to perfom1 work under this Agreement.
3. Recipient shal Iinclude the non -discrimination and compliance provisions ofthis clause in all contracts and subcontracts to perform work under this Agreement.
4. The Recipient shall comply with the nondiscrimination program requirements ofTitle VI of the Civil Rights Act of 1964 . Accordingly , 49 CFR 21 ( Nondiscrim ination in Federally -Assisted Programs ofThe Department Of Transportation- Effectuation ofTitle VI ofThe Civil Rights Act of 1964) and 23 CFR Part 200 ( Title VI Program and Related Statutes- Implementation and Review Procedures) are made applicable to this Agreement by this reference. Wherever the term Contractor" appears therein , it shall mean the Recipient.
5. The Recipient shall pennit, and shall require that its contractors, subcontractors , and subrecipients will pem1it , access to all records of employment , employment advertisements, app lication forms, and other pertinent data and records by the State Fair Employment Practices and Housing Commission or any other agency of the State of California designated by Department to investigate compliance with this Section J.
M. Disabled Veterans Program Requirements
1. Should Military and Veterans Code sections 999 et seq. be app licable to Recipient, Recipient will meet, or make good faith efforts to meet , the 3 % Disabled Veterans Business Enterpr ises goals or Recipient' s applicable higher goals) in the award of every contract for Project work to be perfonned under these this Agreement.
2. Recipient shall have the sole duty and authority under this Agreement to determine whether these referenced code sections are applicable to Recipient and, if so , whether good faith efforts asse11ed by those contractors of Recipient were sufficient as outlined in Militaiy and Veterans Code sections 999 et seq.
I7336. 0003 0\ 42 13787 0 . I
Exhibit D
4 832
Agreement
1. RECIPIENT NAME AND ADDRESS
2. AGREEMENT NUMBER: 3. AMENDMENT NO.
4. PROJECT PERFORMANCE PERIOD: FROM 09/01/2008 TO
5. FEDERAL FUNDING PERIOD: FROM 09/01/2008 TO
1A. IRS/VENDOR NO.
6. ACTION
1C. DUNS.
7. CFDA#:
9. PREVIOUS AGREEMENTS
10. THIS AGREEMENT
11. TOTAL AGREEMENT
12. INCORPORATED ATTACHMENTS
13. STATUTORY AUTHORITY FOR GRANT/ COOPERATIVE AGREEMENT
14. REMARKS
GRANTEE ACCEPTANCE AGENCY APPROVAL
15. NAME AND TITLE OF AUTHORIZED GRANTEE OFFICIAL 17.
16. SIGNATURE OF AUTHORIZED GRANTEE OFFICIAL 16A. DATE 18. 18A. DATE
AGENCY USE ONLY
19. OBJECT CLASS CODE: 20. ORGANIZATION CODE:
21. ACCOUNTING CLASSIFICATION CODES
8. PROJECT TITLE
TITLE FEDERAL NON-FEDERAL TOTAL
1B. UEI.
05/01/2024 02/28/2030 05/01/2024 02/28/2030
General Terms and Conditions, Attachment 1; Project Specific Terms and Conditions, Attachment 2; Exhibits, Attachment 3 Electronically Signed Electronically Signed Jamie Rennert Director, Regional Outreach & Project Delivery Mr. Doug Schulze City Manager 06/28/2024 06/28/2024 2024 10030501AA 2,800,000.00 41010 9000000000 0 New 956000674 099169823 20.327
99 E Ramsey St
Banning, CA 92220-4837
Hargrave Grade Separation Planning Project
Sections 22104 and 22305 of the Infrastructure Investment and Jobs Act (IIJA), Public Law 117-58 (2021); 49 U.S.C. § 22909 / Advanced Appropriation in the IIJA, Division J, Title VIII, Public Law 117-58 (2021)
THIS AGREEMENT INCLUDES THE FOLLOWING ATTACHMENTS, INCORPORATED HEREIN AND MADE A PART HEREOF: CITY OF BANNING 69A36524420100RCECA 27X0760722 DOCUMENT NUMBER FUND BY BPAC AMOUNT Grant 0.00 2,800,000.00 2,800,000.00 0.00 1,500,000.00 4,300,000.00 0.00 1,500,000.00 4,300,000.00 Federal Railroad Administration
NAME AND TITLE OF AUTHORIZED FRA OFFICIAL SIGNATURE OF AUTHORIZED FRA OFFICIAL 69A36524420100RCECA F996EVLCRCG3 833
AWARD ATTACHMENTS
CITY OF BANNING 69A36524420100RCECA
1. General Terms and Conditions, Attachment 1
2. Project Specific Terms and Conditions, Attachment 2
3. Exhibits, Attachment 3
834
1 Attachment 1
GENERAL TERMS AND CONDITIONS
Revision Date: February 15, 2024
835
2 General Terms and Conditions
Table of Contents
ATTACHMENT 1............................................................................................................................................. 7 ARTICLE 1: TERMS AND CONDITIONS .......................................................................................................... 7
1.1 General Terms and Conditions ..................................................................................................... 7
1.2 Project-Specific Terms and Conditions......................................................................................... 7
1.3 Program-Specific Clauses.............................................................................................................. 7
1.4 Exhibits.......................................................................................................................................... 8 ARTICLE 2: FRA ROLE AND RESPONSIBILITIES .............................................................................................. 8
2.1 FRA Role ........................................................................................................................................ 8
2.2 FRA Professional Staff................................................................................................................... 8 ARTICLE 3: RECIPIENT ROLE ......................................................................................................................... 9
3.1 Representations and Acknowledgments on the Project .............................................................. 9
3.2 Representations on Authority and Capacity ................................................................................. 9
3.3 FRA Reliance................................................................................................................................ 10
3.4 Project Delivery........................................................................................................................... 10
3.5 Rights and Powers Affecting the Project .................................................................................... 10
3.6 Notification of Changes to Key Personnel .................................................................................. 11 ARTICLE 4: AWARD AMOUNT, OBLIGATION, AND TIME PERIODS............................................................. 11
4.1 Federal Award Amount............................................................................................................... 11
4.2 Federal Obligations..................................................................................................................... 11
4.3 Maximum Funding Amount........................................................................................................ 11
4.4 Budget Period.............................................................................................................................. 11
4.5 Period of Performance................................................................................................................ 11 ARTICLE 5: STATEMENT OF WORK, SCHEDULE, AND BUDGET CHANGES .................................................. 11
5.1 Notification Requirement ........................................................................................................... 11
5.2 Scope and Statement of Work Changes ..................................................................................... 12
5.3 Schedule Changes....................................................................................................................... 12
5.4 Budget Changes .......................................................................................................................... 12
5.5 Project Cost Savings.................................................................................................................... 13
5.6 FRA Acceptance of Changes ........................................................................................................ 13 ARTICLE 6: GENERAL REPORTING TERMS .................................................................................................. 14 836
3 6.1 Alternative Reporting Methods.................................................................................................. 14
6.2 Paperwork Reduction Act Notice................................................................................................ 14 ARTICLE 7: PROGRESS AND FINANCIAL REPORTING.................................................................................. 14
7.1 Quarterly Project Progress Reports and Recertifications ........................................................... 14
7.2 Final Progress Reports and Financial Information ...................................................................... 15
7.3 Real Property Reporting .............................................................................................................. 15 ARTICLE 8: PERFORMANCE MEASUREMENT AND REPORTING ................................................................. 15
8.1 Baseline Performance Measurement ......................................................................................... 15
8.2 Post-Project Performance Measurement................................................................................... 15
8.3 Project Outcomes Report............................................................................................................ 16
8.4 General Performance Measurement Requirements .................................................................. 16
8.5 Outcome Measurement and Reporting Survival ........................................................................ 16 ARTICLE 9: NONCOMPLIANCE AND REMEDIES .......................................................................................... 16
9.1 Noncompliance Determinations................................................................................................. 16
9.2 Remedies ..................................................................................................................................... 17
9.3 Other Oversight Entities .............................................................................................................. 18 ARTICLE 10: AGREEMENT SUSPENSION AND TERMINATION .................................................................... 18
10.1 Suspension of Award Activities................................................................................................... 18
10.2 FRA Termination ......................................................................................................................... 19
10.3 Closeout Termination.................................................................................................................. 19
10.4 Post-Termination Adjustments................................................................................................... 19
10.5 Non-Terminating Events............................................................................................................. 19 ARTICLE 11: MONITORING, FINANCIAL MANAGEMENT, CONTROLS, AND RECORDS ...............................20
11.1 Recipient Monitoring and Record Retention .............................................................................. 20
11.2 Financial Records and Audits...................................................................................................... 20
11.3 Internal Controls......................................................................................................................... 21
11.4 FRA Record Access ...................................................................................................................... 21
11.5 Site Visits..................................................................................................................................... 21 ARTICLE 12: CONTRACTING AND SUBAWARDING..................................................................................... 21
12.1 Buy America ................................................................................................................................ 21
12.2 Small and Disadvantaged Business Requirements ..................................................................... 22
12.3 Engineering and Design Services [Reserved] .............................................................................. 22
12.4 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment ...22 837
4 12.5 Pass-Through Entity Responsibilities .......................................................................................... 22
12.6 Local Hiring Preference for Construction Jobs............................................................................ 22
12.7 Procurement ............................................................................................................................... 23 ARTICLE 13: COSTS, PAYMENTS, AND UNEXPENDED FUNDS .................................................................... 23
13.1 Limitation of Federal Award Amount ......................................................................................... 23
13.2 Project Costs ............................................................................................................................... 23
13.3 Timing of Project Costs ............................................................................................................... 23
13.4 Recipient Recovery of Federal Funds.......................................................................................... 23
13.5 Unexpended Agreement Federal Funds..................................................................................... 24
13.6 Interest Earned ........................................................................................................................... 24
13.7 Timing of Payments to the Recipient.......................................................................................... 24
13.8 Payment Method ........................................................................................................................ 24
13.9 Information Supporting Expenditures ........................................................................................ 24
13.10 Reimbursement Request Timing Frequency............................................................................... 24
13.11 Program Income.......................................................................................................................... 25 ARTICLE 14: PROPERTY AND EQUIPMENT ................................................................................................. 25
14.1 General Requirements................................................................................................................ 25
14.2 Relocation and Real Property Acquisition .................................................................................. 25
14.3 Use for Originally Authorized Purpose........................................................................................ 25
14.4 Maintenance ............................................................................................................................... 25
14.5 Real Property Disposition............................................................................................................ 26
14.6 Equipment Disposition................................................................................................................ 26
14.7 Recordkeeping ............................................................................................................................ 26
14.8 Encumbrance .............................................................................................................................. 26 ARTICLE 15: AMENDMENTS ....................................................................................................................... 26
15.1 Bilateral Amendments ................................................................................................................ 26
15.2 FRA Unilateral Amendments....................................................................................................... 26
15.3 Other Amendments .................................................................................................................... 27 ARTICLE 16: CLIMATE CHANGE AND ENVIRONMENTAL JUSTICE .............................................................. 27
16.1 Climate Change and Environmental Justice................................................................................ 27 ARTICLE 17: RACIAL EQUITY AND BARRIERS TO OPPORTUNITY ................................................................ 27
17.1 Racial Equity and Barriers to Opportunity .................................................................................. 27 ARTICLE 18: LABOR AND WORK................................................................................................................. 27 838
5 18.1 Labor and Work........................................................................................................................... 27
18.2 OFCCP Mega Construction Project Program............................................................................... 28 ARTICLE 19: CRITICAL INFRASTRUCTURE SECURITY AND RESILIENCE ....................................................... 28
19.1 Critical Infrastructure Security and Resilience............................................................................ 28 ARTICLE 20: FEDERAL FINANCIAL ASSISTANCE, ADMINISTRATIVE, AND NATIONAL POLICY REQUIREMENTS .......................................................................................................................................... 28
20.1 Uniform Administrative Requirements for Federal Awards....................................................... 28
20.2 Federal Law and Public Policy Requirements ............................................................................. 29
20.3 Federal Freedom of Information Act .......................................................................................... 29
20.4 History of Performance............................................................................................................... 29
20.5 Whistleblower Protection........................................................................................................... 29
20.6 External Award Terms and Obligations....................................................................................... 29
20.7 Incorporated Certifications......................................................................................................... 30 ARTICLE 21: ASSIGNMENT.......................................................................................................................... 30
21.1 Assignment Prohibited................................................................................................................ 30 ARTICLE 22: WAIVER .................................................................................................................................. 30
22.1 Waivers ....................................................................................................................................... 30 ARTICLE 23: ADDITIONAL TERMS AND CONDITIONS ................................................................................. 31
23.1 Disclaimer of Federal Liability ..................................................................................................... 31
23.2 Environmental Review ................................................................................................................ 31
23.3 Project Maintenance Requirement............................................................................................. 32
23.4 Appropriations Act Requirements .............................................................................................. 32
23.5 Standards of Conduct.................................................................................................................. 32
23.6 Changed Conditions of Performance.......................................................................................... 33
23.7 Litigation ..................................................................................................................................... 33
23.8 Bipartisan Infrastructure Law Signage Guidelines ...................................................................... 33
23.9 Equipment and Supplies ............................................................................................................. 33
23.10 Safety and Technology Data ....................................................................................................... 34
23.11 Intellectual Property ................................................................................................................... 34
23.12 Liquidation of Recipient Obligations........................................................................................... 34 ARTICLE 24: CONSTRUCTION AND DEFINITIONS ....................................................................................... 34
24.1 Agreement .................................................................................................................................. 34
24.2 Construction................................................................................................................................ 34 839
6 24.3 Integration .................................................................................................................................. 35
24.4 Definitions ................................................................................................................................... 35
24.5 Calendar Dates............................................................................................................................ 36
24.6 Communication in Writing.......................................................................................................... 36 ARTICLE 25: AGREEMENT EXECUTION AND EFFECTIVE DATE ................................................................... 36
25.1 Counterparts............................................................................................................................... 36
25.2 Effective Date.............................................................................................................................. 36 ARTICLE 26: PROGRAM-SPECIFIC CLAUSES................................................................................................ 36
26.1 Interstate Rail Compacts Grant Program.................................................................................... 36
26.2 Railroad Crossing Elimination Program Clauses ......................................................................... 38
26.3 Consolidated Rail Infrastructure and Safety Improvements Grants Clauses..............................41
26.4 Restoration and Enhancement Grants Clauses ........................................................................... 43
26.5 Federal-State Partnership for Intercity Passenger Rail and Federal-State Partnership for State of Good Repair Clauses........................................................................................................................... 45
840
7 ATTACHMENT 1
This Grant Agreement (Agreement) is between the Federal Railroad Administration (FRA) and the Recipient identified in Attachment 2: Project-Specific Terms and Conditions. This Agreement, including the Agreement cover sheet, this Attachment 1, Attachment 2, and Exhibits A–C, constitutes the entire Agreement between FRA and the Recipient regarding the Project as defined in Attachment 2. All prior discussions and understandings concerning the scope and subject matter of this agreement are superseded by this Agreement.
This Agreement is governed by and subject to 2 C.F.R. part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, and the U.S. Department of Transportation (USDOT) implementing regulations at 2 C.F.R. part 1201.
ARTICLE 1: TERMS AND CONDITIONS
1.1 General Terms and Conditions
This Attachment 1: General Terms and Conditions, is part of the Agreement between FRA and the Recipient. This Attachment 1 contains the standard terms and conditions governing the administration of this Agreement and the execution of the Project. The General Terms and Conditions incorporate by reference the information contained in Attachment 2 and the Exhibits to this Agreement.
1.2 Project-Specific Terms and Conditions
Attachment 2: Project-Specific Terms and Conditions, is part of the Agreement between FRA and the Recipient. Attachment 2 contains Project-Specific Terms and Conditions, which may include special terms and conditions.
1.3 Program-Specific Clauses
Article 26 of this Attachment 1 contains the applicable program-specific clauses. The Recipient will comply with the program-specific clauses below that are associated with the grant program identified in Attachment 2 of this Agreement. In the event that the Recipient’s grant is not authorized under a program listed below, Article 26 does not apply. (a) For Projects funded under the Interstate Rail Compacts program (49 U.S.C. § 22910), the Recipient will comply with the program-specific clauses in Article 26.1. (b) For Projects funded under the Railroad Crossing Elimination program (49 U.S.C. § 22909), the Recipient will comply with the program-specific clauses in Article 26.2. (c) For Projects funded under the Consolidated Rail Infrastructure and Safety Improvements program (49 U.S.C. § 22907), the Recipient will comply with the programspecific clauses in Article 26.3. (d) For Projects funded under the Restoration and Enhancement program (49 U.S.C. § 22908), the Recipient will comply with the program-specific clauses in Article 26.4. 841
8 (e) For Projects funded under the Federal-State Partnership for Intercity Passenger Rail program (49 U.S.C. § 24911) and Federal-State Partnership for State of Good Repair (as authorized in Sections 11103 and 11302 of the Passenger Rail Reform and Investment Act of 2015 (Title XI of the Fixing America’s Surface Transportation (FAST) Act, Pub. L. No. 114- 94 (2015))), the Recipient will comply with the program-specific clauses in Article 26.5.
1.4 Exhibits
Exhibits A–C are part of the Agreement between FRA and the Recipient. The Recipient will comply with Exhibits A–C.
ARTICLE 2: FRA ROLE AND RESPONSIBILITIES
2.1 FRA Role
(a) FRA is responsible for funding disbursements to the Recipient under this Agreement.
FRA will also conduct oversight and monitoring activities to assess Recipient progress against established performance goals and to assess compliance with terms and conditions, including the Statement of Work and other requirements of this Agreement. (b) If this award is made as a Cooperative Agreement, FRA will have substantial programmatic involvement. Substantial involvement means that, after award, technical, administrative, or programmatic staff will assist, guide, coordinate, or otherwise participate with the Recipient in Project activities.
(c) If this award is made as a Grant, FRA will not have substantial programmatic involvement.
2.2 FRA Professional Staff
FRA may provide professional staff to review work in progress, completed products, and to provide or facilitate access to technical assistance when it is available, feasible, and appropriate.
FRA professional staff may include the following:
(a) Financial Analyst. The Financial Analyst will serve as the Recipient’s point of contact for systems (e.g., GrantSolutions and the Delphi eInvoicing System) access and troubleshooting as well as for financial monitoring.
(b) Grant Manager. The Grant Manager will serve as the Recipient’s point of contact for grant administration and will oversee compliance with the terms and conditions in this Agreement. The Grant Manager reviews financial reports, performance reports, and works with the Project Manager to facilitate effective Project delivery. (c) Project Manager. The Project Manager will serve as the Recipient’s point of contact for the technical aspects of Project delivery. The Project Manager coordinates Project deliverable review, provides technical assistance to the Recipient, and generally assesses Project progress and performance.
842
9 ARTICLE 3: RECIPIENT ROLE
3.1 Representations and Acknowledgments on the Project
(a) The Recipient represents that:
(1) all material statements of fact in the Application were accurate when the Application was submitted and now; and
(2) the Recipient read and understands the terms and conditions in Attachment 1 and Attachment 2 of this Agreement, the applicable program-specific clauses in Article 26 of this Attachment 1, and the information and conditions in the Exhibits. (b) The Recipient acknowledges that:
(1) the terms and conditions impose obligations on the Recipient and that the Recipient’s non-compliance with the terms and conditions may result in remedial action, including terminating the Agreement, disallowing costs incurred for the Project, requiring the Recipient to refund Federal contributions to FRA, and reporting the non-compliance in the Federal-government-wide integrity and performance system. Recipient acknowledges that the terms and conditions impose such obligations on the Recipient whether the award is made as a Cooperative Agreement, Grant Agreement, or Phased Funding Agreement. (2) The Recipient acknowledges that the requirements of this Agreement apply to the entire Project, including Project costs satisfied from sources other than Agreement Federal Funds.
(c) By entering into this Agreement with FRA, the Recipient agrees to comply with the terms and conditions in Attachment 1 and Attachment 2, including applicable programspecific clauses in Article 26 of this Attachment 1, Exhibits A–C, and all applicable Federal laws and regulations, including those identified in this Agreement. The Recipient will ensure compliance with all terms of this Agreement and all of its parts for all tiers of subawards and contracts under this Agreement, as appropriate. The Recipient understands that the terms and conditions of this Agreement apply regardless of whether the award is made as a Cooperative Agreement, Grant Agreement, or Phased Funding Agreement.
3.2 Representations on Authority and Capacity
The Recipient represents that:
(a) it has the legal authority to receive Federal financial assistance under this Agreement; (b) it has the legal authority to complete the Project; (c) all representations and warranties made in the Federal System for Awards Management (SAM.gov) and in the Application are true and correct; 843
10 (d) it has the capacity, including legal, technical, institutional, managerial, and financial capacity, to comply with its obligations under this Agreement and complete the Project; (e) the Non-Federal Funds listed in Article 6 of Attachment 2 of this Agreement are committed to fund the Project;
(f) it has sufficient funds available to ensure that equipment and infrastructure funded under this Agreement will be operated and maintained in compliance with this Agreement and applicable Federal law;
(g) it has sufficient funds available to ensure that operations funded under this agreement are conducted in compliance with this Agreement and applicable Federal law; and (h) the individual executing this agreement on behalf of the Recipient has the legal authority to enter this Agreement and make the statements and certifications in this Agreement on behalf of the Recipient.
3.3 FRA Reliance
The Recipient acknowledges that:
(a) FRA relied on statements of fact in the Application and SAM.gov to select the Project to receive this award;
(b) FRA relied on statements of fact in the Application, SAM.gov, and this Agreement to determine that the Recipient and the Project are eligible to receive financial assistance under this Agreement;
(c) FRA relied on statements of fact in the Application, SAM.gov, and this Agreement to determine that the Recipient has the legal authority to implement the Project; and (d) FRA relied on statements of fact in both the Application and this Agreement to establish the terms of this Agreement; and
(e) FRA’s selection of the Project to receive this award may have prevented awards to other eligible applicants.
3.4 Project Delivery
(a) The Recipient will implement and complete the Project to FRA’s satisfaction under the terms of this Agreement.
(b) The Recipient will ensure that the Project is financed, constructed, operated, and maintained in accordance with all applicable Federal laws, regulations, and policies.
3.5 Rights and Powers Affecting the Project
(a) The Recipient will not take or permit any action that deprives it of any rights or powers necessary to the Recipient’s performance under this Agreement without written approval of FRA.
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11 (b) The Recipient will act promptly, in a manner acceptable to FRA, to acquire, extinguish, or modify any outstanding rights or claims of right of others that would interfere with the Recipient’s performance under this Agreement.
3.6 Notification of Changes to Key Personnel
The Recipient will notify the FRA Grant Manager in writing within 30 days of any change in key personnel who are identified in the Application, which may require an amendment to this Agreement.
ARTICLE 4: AWARD AMOUNT, OBLIGATION, AND TIME PERIODS
4.1 Federal Award Amount
Under this Agreement, FRA awards a Grant to the Recipient in the amount that is the Agreement Federal Funds in Article 6.1 of Attachment 2 of this Agreement.
4.2 Federal Obligations
This Agreement obligates for the budget period the amount that is the Agreement Federal Funds in Article 6.1 of Attachment 2 of this Agreement.
4.3 Maximum Funding Amount
This Agreement funds the Project at the lesser amount of the Agreement Federal Funds in Article 6.1 of Attachment 2 of this Agreement, or the FRA maximum contribution percentage of the total Project cost identified in Article 6.5 of Attachment 2 of this Agreement.
4.4 Budget Period
The budget period for this award begins on the date of this Agreement and ends on the end date that is listed in Section 5 on the Agreement cover sheet. In this Agreement, “budget period” is used as defined at 2 C.F.R. § 200.1.
4.5 Period of Performance
The Period of Performance for this award is listed in Section 4 on the Agreement cover sheet. In this Agreement, “Period of Performance” is used as defined at 2 C.F.R. § 200.1.
ARTICLE 5: STATEMENT OF WORK, SCHEDULE, AND BUDGET CHANGES
5.1 Notification Requirement
The Recipient will notify the FRA Grant Manager and Project Manager by electronic correspondence within 30 days of any change in circumstances or commitments that adversely affect the Recipient’s plan to complete the Project, including change in authority. In that notification, the Recipient will describe the change and what actions the Recipient has taken or plans to take to ensure completion of the Project. This notification requirement under this Section 5.1 is separate from any requirements under this Article 5 that the Recipient request an amendment to this Agreement.
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12 5.2 Scope and Statement of Work Changes
If the Project’s activities differ from the activities described in Article 4 of Attachment 2 of this Agreement, then the Recipient will notify FRA in writing of the change, which may require an amendment to this Agreement.
5.3 Schedule Changes
If one or more of the following conditions are satisfied, then the Recipient will request an amendment to this Agreement to update the Estimated Project Schedule in Section 5.2 of Attachment 2 of this Agreement:
(a) a completion date for the Project or a component of the Project is listed in the Estimated Project Schedule in Section 5.2 of Attachment 2 of this Agreement and the Recipient’s estimate for that milestone changes to a date that is more than six months after the date listed;
(b) a schedule change would require the budget period to continue after the end of the budget period defined in Section 4.4; or
(c) a schedule change would require the Period of Performance to continue after the end of the Period of Performance defined in Section 4.5. The Recipient must submit requests to extend the Period of Performance not later than 90 days before the end of the Period of Performance.
For other schedule changes, the Recipient will notify the Grant Manager in writing.
5.4 Budget Changes
(a) The Recipient acknowledges that if the cost of completing the Project increases:
(1) that increase does not affect the Recipient’s obligation under this Agreement to complete the Project;
(2) any additional funds the Recipient contributes to complete the Project are subject to the requirements of this Agreement in the same manner as the NonFederal Funds identified in Article 6.5 of Attachment 2 of this Agreement; and (3) FRA will not increase the amount of this award to address any funding shortfall.
(b) The Recipient will notify FRA in writing if the total Project cost, as described in Table 6- A of Attachment 2 of this Agreement, amount increases, which may result in an amendment to this Agreement.
(c) The Recipient will notify FRA in writing if the Non-Federal Funds amount decreases, which may result in an amendment to this Agreement.
(d) For all other budget changes, the Recipient will follow the applicable procedures and document the changes in writing.
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13 5.5 Project Cost Savings
(a) If there are Project Cost Savings, then the Recipient may notify FRA in writing of its intent to include in the Project and complete with the Project Cost Savings the additional activities within the scope of this award that are specified in the Additional Task(s) in Article 4 of Attachment 2 of this Agreement. The Recipient will complete the Additional Task(s) after FRA provides a written approval. An amendment to this Agreement is not required to proceed with the Additional Task(s).
(b) If there are Project Cost Savings, and there are not Additional Task(s) identified in Article 4 of Attachment 2 of this Agreement, then the Recipient may propose a new task that is within the scope of this award and request an amendment to add the new task to this Agreement and complete it with Project Cost Savings. (c) In this Agreement, “Project Cost Savings” means the difference between the actual costs to complete the Project and the estimated total Project cost listed in Section 6.5 of Attachment 2 of this Agreement, if after the Recipient completes the tasks identified in Article 4 of Attachment 2 of this Agreement to FRA’s satisfaction, the actual Project costs are less than the estimated total Project costs. There are no Project Cost Savings prior to completion of the Project or if the actual costs to complete the Project are equal to or greater than the total Project cost listed in Section 6.5 of Attachment 2 of this Agreement. (d) If there are Project Cost Savings and either the Recipient does not make a proposal or FRA does not accept the Recipient’s proposal under (a) of this Section 5.5, then:
(1) The Recipient will provide written notice to FRA and reduce the Federal Share by the Project Cost Savings, which may result in an amendment to this Agreement; and
(2) If the reduced Federal Share reduces this award and the Recipient received reimbursed costs exceeding the appropriate amount under the reduced award, the Recipient will refund the difference between the reimbursed costs and the reduced award.
(e) In this Agreement, “Federal Share” means the sum of the Agreement Federal Funds and Other Federal Funds amounts that are identified in the Approved Project Budget in Section 6.5 of Attachment 2 of this Agreement.
(f) The Recipient acknowledges that amounts that are required to be refunded under this Section constitute a debt to the Federal Government that FRA may collect under 2 C.F.R. § 200.346 and the Federal Claims Collection Standards (31 C.F.R. parts 900–999).
5.6 FRA Acceptance of Changes
FRA may accept or reject changes requested under this Article 5, and in doing so may elect to consider only the interests of the grant program and FRA. The Recipient acknowledges that any request under this Article 5 does not amend, modify, or supplement this Agreement unless FRA 847
14 accepts the request and the parties amend this Agreement under Section 15.1 of this Attachment 1.
ARTICLE 6: GENERAL REPORTING TERMS
6.1 Alternative Reporting Methods
FRA may establish processes for the Recipient to submit reports required by this Agreement, including electronic submission processes. If the Recipient is notified of those processes in writing, the Recipient will use the processes required by FRA.
6.2 Paperwork Reduction Act Notice
Under 5 C.F.R. § 1320.6, the Recipient is not required to respond to a collection of information that does not display a currently valid control number issued by the Office of Management and Budget (OMB). Notwithstanding any other term of this Agreement, the due date for any information collections required under this Agreement, including the reporting requirements in Articles 7 and 8, is the later of (1) the due date stated with the requirement and (2) the 30th day after OMB approves that information collection.
ARTICLE 7: PROGRESS AND FINANCIAL REPORTING
7.1 Quarterly Project Progress Reports and Recertifications (a) On or before the 30th day of the first month of each quarter and until the end of the Period of Performance, the Recipient will submit to FRA through GrantSolutions a complete FRA Form 341 Quarterly Project Progress Report and Recertification that contains, for the previous quarter:
(1) a certification that the Recipient is in compliance with 2 C.F.R. § 200.303 (Internal Controls) and 2 C.F.R. part 200, Subpart F (Audit Requirements); (2) the certification required under 2 C.F.R. § 200.415(a); and (3) a certification that the Recipient is complying with any environmental mitigation commitments and Section 106 compliance obligations.
If the date of this Agreement is in the final month of a quarter, then the Recipient will submit the first Quarterly Project Progress Report and Recertification in the quarter that begins after the date of this Agreement.
(b) On or before the 30th day of the first month of each quarter and until the end of the Period of Performance, the Recipient will submit to FRA through GrantSolutions a Federal Financial Report (SF-425) covering the previous quarter. 1 FRA Form 34 is available at https://railroads.dot.gov/grant-administration/reporting-requirements/fra-reports 848
15 7.2 Final Progress Reports and Financial Information No later than 120 days after the end of the Period of Performance, the Recipient will submit:
(a) a final Quarterly Project Progress Report and Recertification in the format and with the content described in Section 7.1(a) of this Attachment 1 for each Quarterly Project Progress Report and Recertification;
(b) a final SF-425 through GrantSolutions;
(c) a Final Performance Report FRA Form 33 as provided by FRA2 ; and
(d) any other information required under FRA’s award closeout procedures.
7.3 Real Property Reporting
The Recipient will comply with the reporting obligations in 2 C.F.R. § 200.330, as directed by FRA.
ARTICLE 8: PERFORMANCE MEASUREMENT AND REPORTING
8.1 Baseline Performance Measurement
Within one year before the start of work on the Project, the Recipient will collect baseline data for each performance measure that is identified in Article 7 of Attachment 2 of this Agreement.
Within six months of the start of the Period of Performance, the Recipient will submit to FRA a Baseline Performance Measurement Report that describes the data collected, the dates when the data were collected, the data sources, assumptions, variability, and estimated levels of precision for each performance measure. The Recipient will also provide FRA access to the data collected in machine-readable format.
8.2 Post-Project Performance Measurement
For each performance measure that is listed in Article 7 of Attachment 2 of this Agreement, the Recipient will collect data and submit to FRA a Post-Project Performance Measurement Report that describes the data collected, the dates when the data were collected, the data sources, assumptions, variability, and estimated levels of precision for each performance measure, at the frequency and for the duration identified in Article 7 of Attachment 2 of this Agreement. The Recipient will also provide FRA access to the data collected in machine-readable format. If an external factor affects a performance measure, the Recipient will identify that external factor in the Post-Project Performance Measurement Report and discuss the external factor’s influence on the performance measure. In the Post-Project Performance Report, the Recipient will compare the actual project performance against the pre-project (baseline) performance and expected post-project performance as described in Table 7-A of Attachment 2 of this Agreement.
2 FRA Form 33 is available at https://railroads.dot.gov/grant-administration/reporting-requirements/fra-reports 849
16 8.3 Project Outcomes Report
Where indicated in Article 7 of Attachment 2 of this Agreement, the Recipient will submit to FRA, not later than January 31st of the year that follows the final year during which data were collected, a Project Outcomes Report that contains:
(a) an analysis of the impacts of the Project, including a comparison of the baseline performance measurement data collected under Section 8.1 of this Attachment 1 with the post-project performance measurement data that the Recipient reported in the final PostProject Performance Measurement Report required under Section 8.2 of this Attachment 1;
(b) for each performance measure that is identified in Article 7 of Attachment 2 of this Agreement, an analysis of the accuracy of the projected outcome; and (c) all data collected under Sections 8.1 and 8.2 of this Attachment 1; (d) additional information as directed.
8.4 General Performance Measurement Requirements
The Recipient will ensure that all data collection for each performance measure identified in Article 7 of Attachment 2 of this Agreement is completed in a manner consistent with the description, location, and other attributes associated with that performance measure.
8.5 Outcome Measurement and Reporting Survival
The data collection and reporting requirements in Article 8 of this Attachment 1 survive the termination of this Agreement. FRA may consider the Recipient’s compliance with this requirement after closeout of the grant in its evaluation of future applications for Federal financial assistance.
ARTICLE 9: NONCOMPLIANCE AND REMEDIES
9.1 Noncompliance Determinations
(a) Notice of Proposed Determination. If FRA determines that the Recipient may have failed to comply with the United States Constitution, Federal law, or the terms and conditions of this Agreement, FRA will notify the Recipient of a proposed determination of noncompliance through a written notice that:
(1) explains the noncompliance;
(2) describes a proposed remedy that is consistent with Section 9.2 of this Attachment 1;
(3) describes the process and form in which the Recipient may respond to the notice that is consistent with Section 9.1(b) of this Attachment 1; and 850
17 (4) if applicable, provides the Recipient an opportunity to cure the noncompliance or take corrective action.
(b) Response to Notice of Proposed Determination. The Recipient may, not later than 7 days after receiving the notice of proposed determination of noncompliance, respond to that notice in the form and through the process described in that notice. In its response, the Recipient may:
(1) accept the proposed remedy;
(2) acknowledge the noncompliance, but propose an alternative remedy; (3) acknowledge the noncompliance and agree to cure or take corrective action; or
(4) dispute the noncompliance.
To dispute the noncompliance, the Recipient must include in its response sufficient documentation or other information supporting the Recipient’s compliance. (c) Notice of Final Determination. After considering the Recipient’s response or failure to timely respond under Section 9.1(b) of this Attachment 1, FRA will make a final determination. To make a final determination, FRA must provide a written notice to the Recipient that:
(1) states what the final determination is (e.g., noncompliance or compliance); (2) states the basis for the final determination; and
(3) describes the remedy that FRA is imposing, if applicable, or if FRA is not imposing a remedy, describes the resolution to the proposed determination of noncompliance, including whether the Recipient has cured or corrected the noncompliance.
(d) If FRA determines the noncompliance is one that cannot be addressed while work on the Project is ongoing, in the notice of proposed determination or in the notice of final determination, FRA will direct the Recipient to stop work. The Recipient will stop work and will direct any Subrecipients or contractors to stop work immediately upon receipt of a notice to stop work from FRA.
(e) FRA may consider the public interest in making a determination of noncompliance and imposing a remedy.
9.2 Remedies
(a) If FRA makes a final determination of noncompliance under Section 9.1(c) of this Attachment 1, FRA may impose a remedy, including:
(1) additional conditions on the award;
(2) requiring the Recipient to prepare and implement a corrective action plan; 851
18 (3) directing the Recipient to stop work;
(4) any remedy permitted under 2 C.F.R. §§ 200.339–200.340, including withholding of payments; disallowance of previously reimbursed costs, requiring refunds from the Recipient to FRA; suspension or termination of the award; or suspension and disbarment under 2 C.F.R. part 180; or
(5) any other remedy legally available.
(b) The Recipient acknowledges that any amounts FRA requires the Recipient to refund to FRA under this Section 9.2 constitute a debt to the Federal Government that FRA may collect under 2 C.F.R. § 200.346 and the Federal Claims Collection Standards (31 C.F.R. parts 900–999).
(c) Other Remedies. The termination authority under Article 10 of this Attachment 1 supplements and does not limit FRA’s remedial authority under this Article 9 or 2 C.F.R. part 200, including 2 C.F.R. §§ 200.339-200.240. FRA reserves the right to seek any appropriate remedy or otherwise enforce the terms and conditions of this Agreement as authorized by law.
9.3 Other Oversight Entities
Nothing in Article 9 of this Attachment 1 limits any party’s authority to report activity under this agreement to the United States Department of Transportation Inspector General or other appropriate oversight entities.
ARTICLE 10: AGREEMENT SUSPENSION AND TERMINATION
10.1 Suspension of Award Activities
(a) If FRA determines that the remedy for noncompliance imposed under Article 9 of this Agreement does not achieve the desired result or is unlikely to improve compliance or performance, FRA may suspend activities under this Agreement pending corrective action by the Recipient or termination.
(b) If FRA suspends activities under this Agreement, FRA will notify the Recipient in writing of the following, which may be included in the determinations of non-compliance under Section 9.1 of this Attachment 1:
(1) what project activities, if any, will take place during the period of suspension; (2) what costs FRA will reimburse if the suspension is lifted and the award resumed;
(3) what corrective actions must occur during the suspension; and (4) FRA’s intent to terminate the award under this Article 10 if the Recipient does not meet the conditions of the remedial action.
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19 (c) The duration of the temporary suspension of activities under the Agreement should be commensurate with the corrective action needed, but should not exceed 120 days at the outset. If the Recipient is not making sufficient progress in correcting the noncompliance, FRA must consider both financial and programmatic requirements in determining the appropriate extension to avoid the need for termination.
10.2 FRA Termination
(a) FRA may terminate this Agreement and all its obligations under this Agreement if any of the following occurs:
(1) the Recipient fails to obtain or contribute the required Non-Federal Funds, or alternatives approved by FRA, as provided in this agreement and consistent with Article 6 of Attachment 2 of this Agreement;
(2) the Recipient fails to meet a milestone by six months after the completion date listed in Article 5 of Attachment 2 of this Agreement and the Recipient fails to request an amendment to this Agreement pursuant to Section 5.3 of this Attachment 1;
(3) the Recipient fails to comply with the terms and conditions of this Agreement; (4) there are changes to the Project that FRA determines are inconsistent with FRA’s basis for selecting the Project to receive the award; or (5) FRA determines that termination of this Agreement is in the public interest. (b) The Recipient may request that FRA terminate the Agreement, which may result in FRA determining noncompliance and imposing remedies pursuant to Article 9 of this Attachment 1.
10.3 Closeout Termination
(a) This Agreement terminates on Project Closeout.
(b) In this Agreement, “Project Closeout” means the date that FRA notifies the Recipient that the award is closed out. Under 2 C.F.R. § 200.344, Project Closeout should occur no later than one year after the end of the Period of Performance.
10.4 Post-Termination Adjustments
The Recipient acknowledges that under 2 C.F.R. §§ 200.345–200.346, termination of this Agreement does not extinguish FRA’s authority to disallow costs, including costs that FRA reimbursed before termination, and recover funds from the Recipient.
10.5 Non-Terminating Events
(a) The end of the budget period described under Section 4.4 of this Attachment 1 does not terminate this Agreement or the Recipient’s obligations under this Agreement. 853
20 (b) The end of the Period of Performance described under Section 4.5 of this Attachment 1 does not terminate this Agreement or the Recipient’s obligations under this Agreement.
ARTICLE 11: MONITORING, FINANCIAL MANAGEMENT, CONTROLS, AND RECORDS
11.1 Recipient Monitoring and Record Retention
(a) The Recipient will monitor activities under this award, including activities under subawards and contracts, to ensure:
(1) that those activities comply with this agreement; and (2) that funds provided under this award are not expended on costs that are not allowable under this award or not allocable to this award. (b) If the Recipient makes a subaward under this award, the Recipient will monitor the activities of the Subrecipient in compliance with 2 C.F.R. §200.332(d). (c) The Recipient will retain and provide access to records relevant to the award during the course of the Project and for three years after closeout or longer, as required under 2 C.F.R. § 200.334
(d) The Recipient will adhere to the recording and recordkeeping requirements set forth in 2 C.F.R. §§ 200.334–200.338. Project Closeout does not alter these requirements.
11.2 Financial Records and Audits
(a) The Recipient will keep all Project accounts and records that fully disclose the amount and disposition by the Recipient of the award funds, the total cost of the Project, and the amount or nature of that portion of the cost of the Project supplied by other sources, and any other financial records related to the Project.
(b) The Recipient will keep accounts and records described under Section 11.2(a) of this Attachment 1 in accordance with a financial management system that meets the requirements of 2 C.F.R. §§ 200.301–200.303 and 2 C.F.R. part 200, subpart F and will facilitate an effective audit in accordance with 31 U.S.C. §§ 7501–7506. (c) The Recipient will separately identify expenditures under the award in financial records required for audits under 31 U.S.C. §§ 7501–7506. Specifically, the Recipient will:
(1) list expenditures separately on the schedule of expenditures of Federal awards required under 2 C.F.R. part 200, subpart F, including the fiscal year in the format “FY 202X” in the program name; and
(2) list expenditures on a separate row under Part II, Item 1 (Federal Awards Expended During Fiscal Period) of Form SF-SAC, including “FY 202X” in Column C (Additional Award Identification).
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21 (d) If the Recipient expends $750,000 or more in Federal awards during the Recipient’s fiscal year, a single or program audit will be conducted for that year, consistent with 2 C.F.R. §§ 200.501(a) and 200.512(c).
11.3 Internal Controls
The Recipient will establish and maintain internal controls as required under 2 C.F.R. § 200.303.
11.4 FRA Record Access
FRA may access Recipient records related to this award under 2 C.F.R. § 200.337.
11.5 Site Visits
FRA may conduct site visits to review Project activities, accomplishments, and management control systems and to provide technical assistance to the Recipient. The Recipient will provide or ensure reasonable, safe, and convenient access to FRA for any such site visit. FRA will conduct all site visits in such a manner as will not unduly delay work conducted by the Recipient, Subrecipient, or contractor.
ARTICLE 12: CONTRACTING AND SUBAWARDING
12.1 Buy America
(a) For infrastructure projects, steel, iron, manufactured goods, and construction materials used in the Project are subject to the domestic preference requirement at § 70914 of the Build America, Buy America Act (Buy American Act), Pub. L. No. 117-58, div.
G, tit. IX, subtit. A, 135 Stat. 429, 1298 (2021) and 2 C.F.R. part 184, as implemented by OMB, USDOT, and FRA. The Recipient acknowledges that this Agreement is neither a waiver of § 70914(a) nor a finding under § 70914(b).
(b) For all other projects, the Recipient’s acquisition of steel, iron, and manufactured goods with funding provided through this Agreement is subject to the requirements set forth in the Buy American Act, 41 U.S.C. §§ 8301-8305. The Recipient also represents that it has never been convicted of violating the Buy American Act nor will it make funding received under this Agreement available to any person or entity who has been convicted of violating the Buy American Act.
(c) Under this Section, “infrastructure project” has the definition provided in 2 C.F.R. § 184.3.
(d) Under 2 C.F.R. § 200.322, as appropriate and to the extent consistent with law, the Recipient should, to the greatest extent practicable under this award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States. The Recipient shall include the requirements of 2 C.F.R. § 200.322 in all subawards including all contracts and purchase orders for work or products under this award.
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22 12.2 Small and Disadvantaged Business Requirements
The Recipient will expend all funds under this award in compliance with the requirements at 2 C.F.R. § 200.321 (Contracting with small and minority businesses, women’s business enterprises, and labor surplus area firms), and to the extent applicable, 49 C.F.R. part 26 (Participation by disadvantaged business enterprises in Department of Transportation financial assistance programs).
12.3 Engineering and Design Services [Reserved]
12.4 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment The Recipient acknowledges that Section 889 of Pub. L. No. 115-232 and 2 C.F.R. § 200.216 prohibit the Recipient and all Subrecipients from procuring or obtaining certain telecommunications and video surveillance services or equipment under this award.
12.5 Pass-Through Entity Responsibilities
(a) If the Recipient makes a subaward under this award, the Recipient will comply with the requirements for pass-through entities under 2 C.F.R. parts 200 and 1201, including 2 C.F.R. §§ 200.331–200.333, regardless of whether the Recipient is also a Pass-Through Entity as defined in 2 C.F.R. § 200.1.
(b) The Recipient will report any subaward obligation of $25,000 or more in Federal funds in USASpending.gov consistent with the Federal Funding Accountability and Transparency Act, Pub. L. 109-282.
(c) The Recipient is accountable for performance under this award, the appropriate expenditure of funds, and other requirements under this Agreement. The Recipient is responsible for any non-compliance under the award and for compliance with any remedies imposed.
12.6 Local Hiring Preference for Construction Jobs
Under Section 25019 of the Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, div. B, tit. V (2021), a Recipient or Subrecipient may implement a local or other geographical or economic hiring preference relating to the use of labor for construction of a project funded by this grant if funded under title 49 or 23 United States Code, including prehire agreements, subject to any applicable State and local laws, policies, and procedures. The use of such a local or other geographical or economic hiring preference in any bid for a contract for the construction of a project funded by this grant shall not be considered to unduly limit competition. Project labor agreements should be consistent with the definition and standards outlined in Executive Order 13502. The Recipient will document its consideration of Local Hiring Preference for Construction Jobs related to the Project in Article 11 of Attachment 2 of this Agreement. For additional information, see
https://www.transportation.gov/sites/dot.gov/files/2023-05/Creating-Local-ConstructionWorkforce.pdf. 856
23 12.7 Procurement
The Recipient may acquire property, goods, or services in connection with the Project. If the Recipient is a State, then it will use its own procurement procedures that reflect applicable State laws and regulations in compliance with 2 C.F.R. § 200.317. A Subrecipient of a State will follow the policies and procedures allowed by that State when procuring property and services under this award consistent with 2 C.F.R. § 1201.317, notwithstanding 2 C.F.R. § 200.317. An entity that is not a State or Subrecipient of a State will comply with 2 C.F.R. §§ 200.318–200.327, and applicable supplementary USDOT or FRA directives and regulations. The Recipient will provide technical specifications and requirements to FRA for review upon request.
ARTICLE 13: COSTS, PAYMENTS, AND UNEXPENDED FUNDS
13.1 Limitation of Federal Award Amount
Under this award, FRA will not provide funding in an amount greater than the Agreement Federal Funds. The Recipient acknowledges that FRA is not liable for payments exceeding that amount, and the Recipient will not request reimbursement of costs exceeding that amount.
13.2 Project Costs
This award is subject to the cost principles at 2 C.F.R. part 200, subpart E, including provisions on determining allocable costs and determining allowable costs.
13.3 Timing of Project Costs
(a) The Recipient will not charge to this award costs that are incurred after the budget period.
(b) The Recipient will not charge to this award costs that were incurred before the date of this Agreement unless those costs are identified as approved pre-award costs in Section
6.6 of Attachment 2 of this Agreement and would have been allowable if incurred during the budget period. This limitation applies to pre-award costs under 2 C.F.R. § 200.458. This agreement hereby terminates and supersedes any previous FRA approval for the Recipient to incur costs under this award for the Project. Section 6.6 of Attachment 2 of this Agreement is the exclusive FRA approval of costs incurred before the date of this Agreement.
(c) The Recipient may request approval of pre-award costs in a written request that demonstrates the purpose and amount of the costs, compliance with 2 C.F.R. § 200.458, and whether such costs would otherwise serve as Non-Federal Funds.
13.4 Recipient Recovery of Federal Funds
The Recipient will make all reasonable efforts, including initiating litigation, if necessary, to recover Federal funds if FRA determines, after consultation with the Recipient, that those funds have been spent fraudulently, wastefully, or in violation of Federal laws, or misused in any manner. The Recipient will not enter a settlement or other final position, in court or otherwise, involving the recovery of funds under the award unless approved in advance in writing by FRA. 857
24 13.5 Unexpended Agreement Federal Funds
Any Agreement Federal Funds that are obligated but not expended on allocable, allowable costs remain the property of the United States.
13.6 Interest Earned
Interest earned on advances of Agreement Federal Funds is not program income.
13.7 Timing of Payments to the Recipient
(a) Reimbursement is the payment method, unless otherwise approved by FRA. (b) The Recipient will not request reimbursement of a cost before the Recipient has entered into an obligation for that cost.
13.8 Payment Method
(a) The Recipient will use the DELPHI e-Invoicing System (https://www.dot.gov/cfo/delphi-einvoicing-system.html) to request reimbursement under this award. FRA will provide access to that system upon request by the Recipient. (b) FRA may deny a payment request that is not submitted using the method identified in this Section.
13.9 Information Supporting Expenditures
(a) When requesting reimbursement of costs incurred or credit for cost share incurred, the Recipient will electronically submit the SF 270 (Request for Advance or Reimbursement) and will submit supporting cost detail to document clearly all costs incurred. As supporting cost detail, the Recipient will include a detailed breakout of all costs incurred and classify all costs by task and by Agreement Federal Funds and Agreement Non-Federal Funds.
(b) Unless FRA and the Recipient agree otherwise in writing, the Recipient will ensure that the proportion of expenditure of Agreement Federal Funds to Agreement Non-Federal Funds is not more than the maximum percent of total Project cost FRA will contribute identified in Section 6.5 of Attachment 2 of this Agreement. The Recipient will ensure the proportional expenditure of funds is reflected in the detailed breakout of costs supporting the SF 270.
(c) If the Recipient submits a request for reimbursement that FRA determines does not include or is not supported by sufficient detail, FRA may deny the request or withhold processing the request until the Recipient provides sufficient detail.
13.10 Reimbursement Request Timing Frequency
The Recipient will request reimbursement as needed to maintain cash flow sufficient to timely complete the Project. The Recipient will not submit any single payment request exceeding $99,999,999.99. The Recipient will not submit a payment request exceeding $50,000,000.00 unless the Recipient notifies FRA six days before submitting the request. 858
25 13.11 Program Income
The Recipient is encouraged to earn income to defray Project costs, where appropriate, and will work with FRA to determine how income may be applied to the grant, in accordance with 2 C.F.R. § 200.307 and 2 C.F.R. § 1201.80. Program income not deducted from total allowable costs may be used only for the purposes and under the terms and conditions established in this Agreement. The Recipient will maintain records of all program income.
ARTICLE 14: PROPERTY AND EQUIPMENT
14.1 General Requirements
The Recipient will comply with the property standards of 2 C.F.R. §§ 200.310–200.316 and will ensure compliance with these standards for all tiers of subawards and contracts under this award.
14.2 Relocation and Real Property Acquisition
The Recipient will comply with the land acquisition policies and relocation requirements in 42 U.S.C. § 4601 et seq. and 49 C.F.R. part 24, subparts A–F, as applicable. At a minimum, under this section, the Recipient will:
(a) comply with the land acquisition policies in 49 C.F.R. part 24, subpart B and will pay or reimburse property owners for necessary expenses as specified in that subpart; (b) provide a relocation assistance program offering the services described in 49 C.F.R. part 24, subpart C and provide reasonable relocation payments and assistance to displaced persons as required in 49 C.F.R. part 24, subparts D–E; and (c) make available to displaced persons comparable replacement dwellings in accordance with 49 C.F.R. part 24, subpart E.
(d) provide to FRA a real estate acquisition and management plan prior to beginning real property acquisition if the Project is designated a Major Project in Article 1 of Attachment 2 of this Agreement, or if the total Project cost in Section 6.5 of Attachment 2 of this Agreement is greater than $300 million and the Project is also receiving financial assistance from the Federal Transit Administration (FTA).
14.3 Use for Originally Authorized Purpose
The Recipient will ensure that property and equipment funded under this Agreement is used for the originally authorized purpose. If necessary to satisfy this obligation, the Recipient will enter into appropriate arrangements with the entity or entities using, or with the owner of right-ofway used by, the property and/or equipment funded under this Agreement.
14.4 Maintenance
The Recipient will ensure that any property, improvements to property, and any equipment funded under this Agreement are maintained in good working order and in accordance with FRA regulations, guidelines, and directives.
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26 14.5 Real Property Disposition
In accordance with 2 C.F.R. § 200.311, when real property acquired or improved under this award is no longer used for its originally intended purpose, the Recipient will request disposition instructions from FRA.
14.6 Equipment Disposition
(a) In accordance with 2 C.F.R. §§ 200.313 and 1201.313, when equipment acquired under this award is no longer needed for the Project:
(1) if the entity that acquired the equipment is a State or a Subrecipient of a State, that entity will dispose of that equipment in accordance with State laws and procedures; and
(2) if the entity that acquired the equipment is neither a State nor a Subrecipient of a State, that entity will request disposition instructions from FRA. (b) In accordance with 2 C.F.R. §200.443(d), the distribution of the proceeds from the disposition of equipment must be made in accordance with 2 C.F.R. §§ 200.313–200.316 and 2 C.F.R. § 1201.313.
14.7 Recordkeeping
The Recipient will keep records regarding the operation and maintenance of property, improvements to property, equipment, and supplies funded under this Agreement and will provide them to FRA upon request.
14.8 Encumbrance
The Recipient will not create an obligation, such as a transfer of title, lease, lien, mortgage, or encumbrance, that would dispose of or encumber the Recipient’s title or other interest in property, improvements to property, equipment or supplies funded under this Agreement without prior written approval from FRA.
The Recipient will not take any action that would adversely affect FRA’s interest or impair the Recipient’s continuing control over the use of the property, improvements to property, equipment, or supplies funded under the Agreement without prior written approval from FRA.
ARTICLE 15: AMENDMENTS
15.1 Bilateral Amendments
The parties may amend, modify, or supplement this Agreement by mutual agreement in writing signed by FRA and the Recipient. Either party may request to amend, modify, or supplement this Agreement by written notice to the other party.
15.2 FRA Unilateral Amendments
(a) FRA may unilaterally amend this Agreement for the following reasons:
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27 (1) to comply with Federal law;
(2) at closeout or in anticipation of closeout; and
(3) other non-substantive changes, such as to correct typographical errors, as deemed appropriate by FRA.
(b) To unilaterally amend this Agreement under Section 15.3 of this Attachment 1, FRA will provide a written notice to the Recipient that includes the amendment and the date that the amendment is effective.
(c) Except at closeout or in anticipation of closeout, FRA may not unilaterally amend the Statement of Work, this Agreement’s monetary amount, the delivery schedule, the Period of Performance, or other terms or conditions of this Agreement.
15.3 Other Amendments
The parties will not amend, modify, or supplement this Agreement except as permitted under Sections 15.1, 15.2, or 15.3 of this Attachment 1. If an amendment, modification, or supplement is not permitted under Section 15.1, 15.2, or 15.3 of this Attachment 1, it is void.
ARTICLE 16: CLIMATE CHANGE AND ENVIRONMENTAL JUSTICE
16.1 Climate Change and Environmental Justice
Consistent with Executive Order 14008, “Tackling the Climate Crisis at Home and Abroad” (Jan. 27, 2021), the Recipient will document its consideration of climate change and environmental justice impacts of the Project in Article 9 of Attachment 2 of this Agreement.
ARTICLE 17: RACIAL EQUITY AND BARRIERS TO OPPORTUNITY
17.1 Racial Equity and Barriers to Opportunity
Consistent with Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” (Jan. 20, 2021), the Recipient will document its activities related to the Project to improve racial equity and reduce barriers to opportunity in Article 10 of Attachment 2 of this Agreement.
ARTICLE 18: LABOR AND WORK
18.1 Labor and Work
Consistent with Executive Order 14025, “Worker Organizing and Empowerment” (Apr. 26, 2021), and Executive Order 14052, “Implementation of the Infrastructure Investment and Jobs Act” (Nov. 15, 2021) (IIJA), the Recipient will document its consideration of job quality and labor rights, standards, and protections related to the Project in Article 11 of Attachment 2 of this Agreement.
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28 18.2 OFCCP Mega Construction Project Program
If the total eligible Project costs listed in Attachment 2 of this Agreement are greater than $35,000,000 and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) selects this award for participation in the Mega Construction Project Program, then the Recipient shall partner with OFCCP, as requested by OFCCP.
ARTICLE 19: CRITICAL INFRASTRUCTURE SECURITY AND RESILIENCE
19.1 Critical Infrastructure Security and Resilience
(a) Consistent with Presidential Policy Directive 21, “Critical Infrastructure Security and Resilience” (Feb. 12, 2013), and the National Security Presidential Memorandum on Improving Cybersecurity for Critical Infrastructure Control Systems (July 28, 2021), the Recipient will consider physical and cyber security and resilience in planning, design, and oversight of the Project.
(b) If the Security Risk Designation in Section 1.3 of Attachment 2 of this Agreement is “Elevated,” then not later that than two years after the date of this Agreement the Recipient will submit to FRA a report that:
(1) identifies a cybersecurity point of contact for the transportation infrastructure being improved in the Project;
(2) summarizes or contains a cybersecurity incident reporting plan for the transportation infrastructure being improved in the Project; (3) summarizes or contains a cybersecurity incident response plan for the transportation infrastructure being improved in the Project; (4) documents the results of a self-assessment of the Recipient’s cybersecurity posture and capabilities; and
(5) describes any additional actions that the Recipient has taken to consider or address cybersecurity risk of the transportation infrastructure being improved in the Project.
ARTICLE 20: FEDERAL FINANCIAL ASSISTANCE, ADMINISTRATIVE,
AND NATIONAL POLICY REQUIREMENTS
20.1 Uniform Administrative Requirements for Federal Awards The Recipient will comply, and will ensure that other entities receiving funding under this agreement will comply, with the obligations on non-Federal entities under 2 C.F.R. parts 200 and 1201, regardless of whether the Recipient or other entity receiving funding under this agreement is a Non-Federal entity as defined in 2 C.F.R. § 200.1, except that subpart F of part 200 does not apply if the Recipient or Subrecipient is a for-profit entity. 862
29 20.2 Federal Law and Public Policy Requirements
(a) The Recipient will ensure that Federal funding is expended in full accordance with the United States Constitution, Federal law, and statutory and public policy requirements:
including but not limited to, those protecting free speech, religious liberty, public welfare, the environment, and prohibiting discrimination.
(b) The failure of this Agreement to expressly identify Federal law applicable to the Recipient or activities under this Agreement does not make that law inapplicable.
20.3 Federal Freedom of Information Act
(a) FRA is subject to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. (b) The Recipient acknowledges that the Application and materials submitted to FRA by the Recipient related to this Agreement will become FRA records that may be subject to public release under 5 U.S.C. § 552. If the Recipient submits any materials to FRA related to this Agreement that the Recipient considers to include trade secret or confidential commercial or financial information, the Recipient should note that the submission contains confidential business information, mark each affected page, and highlight or otherwise denote the portions of the submission that contain confidential business information.
20.4 History of Performance
Under 2 C.F.R. § 200.206, any Federal awarding agency may consider the Recipient’s performance under this Agreement, when evaluating the risks of making a future Federal financial assistance award to the Recipient.
20.5 Whistleblower Protection
(a) The Recipient acknowledges that it is a “Recipient” within the scope of 41 U.S.C. § 4712, which prohibits the Recipient from taking certain actions against an employee for certain disclosures of information that the employee reasonably believes are evidence of gross mismanagement of this award, gross waste of Federal funds, or a violation of Federal law related this this award.
(b) The Recipient will inform its employees in writing of the rights and remedies provided under 41 U.S.C. § 4712, in the predominant native language of the workforce.
20.6 External Award Terms and Obligations
(a) In addition to this document and the contents described in Article 25 of this Attachment 1, this Agreement includes the following additional terms as integral parts:
(1) Appendix A to 2 C.F.R. part 25: System for Award Management and Universal Identifier Requirements;
(2) Appendix A to 2 C.F.R. part 170: Reporting Subawards and Executive Compensation;
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30 (3) 2 C.F.R. § 175.15(b): Trafficking in Persons; and (4) Appendix XII to 2 C.F.R. part 200: Award Term and Condition for Recipient Integrity and Performance Matters.
(b) The Recipient will comply with:
(1) 49 C.F.R. part 20: New Restrictions on Lobbying;
(2) 49 C.F.R. part 21: Nondiscrimination in Federally Assisted Programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act of 1964;
(3) 49 C.F.R. part 27: Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance; and
(4) Subpart B of 49 C.F.R. part 32: Governmentwide Requirements for Drug-free Workplace (Financial Assistance).
20.7 Incorporated Certifications
The Recipient makes the representations in the following certifications, which are incorporated by reference:
(a) Appendix A to 49 C.F.R. part 20 (Certification Regarding Lobbying).
ARTICLE 21: ASSIGNMENT
21.1 Assignment Prohibited
The Recipient will not transfer to any other entity any discretion granted under this Agreement, any right to satisfy a condition under this Agreement, any remedy under this Agreement, or any obligation imposed under this Agreement.
ARTICLE 22: WAIVER
22.1 Waivers
(a) A waiver of a term of this Agreement authorized by law and granted by FRA will not be effective unless it is in writing and signed by an authorized representative of FRA. (b) A waiver of a term of this Agreement granted by FRA on one occasion will not operate as a waiver on other occasions.
(c) If FRA fails to require strict performance of a term of this Agreement, fails to exercise a remedy for a breach of this Agreement, or fails to reject a payment during a breach of this Agreement, that failure does not constitute a waiver of that term or breach. 864
31 ARTICLE 23: ADDITIONAL TERMS AND CONDITIONS
23.1 Disclaimer of Federal Liability
FRA will not be responsible or liable for any damage to property or any injury to persons that may arise from, or be incident to, performance or compliance with this Agreement.
23.2 Environmental Review
(a) Except as authorized by law or under 23 C.F.R. § 771.113(d)(4), the Recipient will not begin final design activities; acquire real property, construction materials, or equipment, including rolling stock; begin construction; or take other actions that would have an adverse environmental impact or limit the choice of reasonable alternatives for the Project unless and until FRA complies with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA), and any other applicable environmental laws and regulations. In addition, the Recipient will not begin project development that involves ground disturbing activity prior to FRA compliance with NEPA and any other applicable environmental laws and regulations.
(b) The Recipient acknowledges that:
(1) FRA’s actions under Section 23.2(a) of this Attachment 1 may depend on the Recipient conducting necessary environmental analyses and submitting necessary documents to FRA; and
(2) applicable environmental statutes and regulations may require the Recipient to prepare and submit documents to other Federal, State, and local agencies. (c) Consistent with 23 C.F.R. § 771.105(a), to the maximum extent practicable and consistent with Federal law, the Recipient will coordinate all environmental investigations, reviews, and consultations as a single process.
(f) The activities described in Article 4 of Attachment 2 of this Agreement and other information described in this Agreement may inform environmental decision-making processes, but the parties do not intend this Agreement to document the alternatives under consideration under those processes. If a build alternative is selected that does not align with Article 4 of Attachment 2 of this Agreement or other information in this Agreement, then FRA will either:
(1) amend this Agreement under Section 15.1 of this Attachment 1 for consistency with the selected build alternative; or
(2) if FRA determines that the condition at Section 10.1(a)(5) of this Attachment 1 is satisfied, terminate this Agreement under Section 10.1(a)(5) of this Attachment 1; or
(3) take other action as deemed appropriate by FRA.
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32 (g) The Recipient will complete any mitigation activities described in the environmental document or documents for the Project, including the terms and conditions contained in the required permits and authorizations for the Project. Article 4 of Attachment 2 of this Agreement identifies documents describing mitigation activities, but the absence of a document from that section does not relieve the Recipient of any compliance obligations.
23.3 Project Maintenance Requirement
The Recipient will ensure that any property and equipment funded within this Agreement is operated and maintained in good operating order and in accordance with 2 C.F.R. §§ 200.310– 200.316, 1201.313 and any guidelines, directives, or regulations that FRA may issue.
23.4 Appropriations Act Requirements
The Recipient will comply with applicable requirements of the appropriations act identified in Section 6.3 of Attachment 2 of this Agreement.
23.5 Standards of Conduct
The Recipient will comply with the following standards of conduct:
(a) Standards of Conduct. The Recipient will maintain a written code or standards of conduct governing the performance of its officers, employees, board members, or agents engaged in the award and administration of contracts or agreements supported by the Federal contribution provided through this Agreement. The code or standards will provide that the Recipient's officers, employees, board members, or agents may neither solicit nor accept gratuities, favors, or anything of monetary value from present or potential Subrecipients or contractors. The Recipient may set minimum rules where the financial interest is not substantial, or the gift is an unsolicited item of nominal intrinsic value. As permitted by state or local law or regulations, such code or standards will provide for penalties, sanctions, or other disciplinary actions for violations by the Recipient's officers, employees, board members, or agents, or by Subrecipients or their agents. (b) Personal Conflict of Interest. The Recipient's code or standards must provide that no employee, officer, board member, or agent of the Recipient may participate in the selection, award, or administration of a contract supported by the Federal contribution if a real or apparent conflict of interest would be involved. Such a conflict of interest would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in or a tangible personal benefit from a firm considered for a contract.
(c) Organizational Conflicts of Interest. The Recipient's code or standards of conduct must include procedures for identifying and preventing real and apparent organizational conflicts of interests. An organizational conflict of interest exists when the nature of the work to be performed under a proposed contract, may, without some restrictions on future activities, result in an unfair competitive advantage to the contractor or impair the contractor's objectivity in performing the contract work. 866
33 (d) Existing Codes or Standards. This Section does not require the Recipient to implement a new code or standards of conduct where a state statute, or written code or standards of conduct, already effectively covers all of the required elements. (e) Disclosure of Conflicts. The Recipient will disclose in writing any potential conflict of interest to FRA or pass-through entity.
23.6 Changed Conditions of Performance
The Recipient will notify FRA of any event that may affect its ability to perform the Project in accordance with the terms of this Agreement.
23.7 Litigation
The Recipient will notify FRA in writing of any decision pertaining to the Recipient’s conduct of litigation that may affect FRA's interests in the Project or FRA's administration or enforcement of applicable Federal laws or regulations. The Recipient will inform FRA in writing before naming FRA as a party to any type of litigation for any reason in any forum.
23.8 Bipartisan Infrastructure Law Signage Guidelines
For projects funded by the Bipartisan Infrastructure Law, also known as the Infrastructure Investment and Jobs Act, Pub. L. No. 117-58 (2021), the Recipient will ensure:
(a) signage is designed consistent with the guidelines and design specifications available at https://www.whitehouse.gov/wp-content/uploads/2023/02/Investing-in-AmericaBrand-Guide.pdf. Signs should include the official Investing in America logo and identify the project as “funded by President Biden’s Bipartisan Infrastructure Law.” (b) signage displays the FRA logo and the Recipient logo, if any, along with the official Investing in America logo. The FRA logo should not be displayed in a manner that implies FRA itself is conducting the project.
(c) where applicable, the signage includes the project name (e.g., [Name of] Project funded by President Biden’s Bipartisan Infrastructure Law.) (d) the sign is placed at construction sites where it is clearly visible near the location of work and that the sign is maintained in good condition throughout the construction period.
(e) signs on equipment are placed in an easily visible location and maintained in good condition
23.9 Equipment and Supplies
The Recipient will maintain written policies and procedures that address acquisition, classification, and management of all equipment and supplies acquired or used under this award.
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34 23.10 Safety and Technology Data
The Recipient will ensure that FRA has access to safety and technology relevant data generated by the Recipient under the award, in a machine-readable format, where specified in Article 4 of Attachment 2 of this Agreement.
23.11 Intellectual Property
The Recipient agrees to the standard patent rights clauses issued by the Department of Commerce at 37 C.F.R. Part 401, as applicable.
23.12 Liquidation of Recipient Obligations
(a) The Recipient will liquidate all obligations of award funds under this Agreement not later than 120 days after the end of the Period of Performance. (b) Liquidation of obligations and adjustment of costs under this Agreement follow the requirements of 2 C.F.R. §§ 200.344–200.346.
ARTICLE 24: CONSTRUCTION AND DEFINITIONS
24.1 Agreement
This Agreement consists of the following:
(a) Agreement Cover Sheet
(b) Attachment 1: General Terms and Conditions
(c) Attachment 2: Project-Specific Terms and Conditions (d) Exhibit A: Applicable Federal Laws and Regulations
(e) Exhibit B: Additional Standard Terms
(f) Exhibit C: Quarterly Project Progress Reports and Recertifications
24.2 Construction
(a) In these General Terms and Conditions, there are no references to articles or sections in project-specific portions of this Agreement that are not contained in Attachments or Exhibits listed in Section 24.1.
(b) If a provision in these General Terms and Conditions or the Exhibits conflicts with a provision in the Project-Specific Terms and Conditions in Attachment 2 of this Agreement, then the relevant portion in Attachment 2 prevails. If a provision in the Exhibits conflicts with a provision in these General Terms and Conditions, then the provision in these General Terms and Conditions prevails.
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35 24.3 Integration
This Agreement constitutes the entire agreement of the parties relating to the Project and supersedes any previous agreements, oral or written, relating to the Project.
24.4 Definitions
This Section defines terms used in this Agreement. Additional definitions found in 2 C.F.R. § 200.1 are incorporated by referenced into this Agreement. “Agreement Federal Funds” means the total amount of Federal funds obligated under this Agreement. This is the amount shown in Section 6.1 of Attachment 2 of this Agreement. “Application” means the application identified in Article 3 of Attachment 2 of this Agreement, including Standard Form 424 and all information and attachments submitted with that form through Grants.gov.
“Construction Substantial Completion” means the stage of the Project when all construction tasks are complete such that the Recipient can use the Project for its intended use and only closeout activities remain. Activity to address or complete closeout activities will not prevent or disrupt use of the Project.
“Contingent Commitment” means the unobligated amounts of future available budget authority specified in law that FRA commits to obligate under the terms of this Agreement. “Federal Share” means the sum of Agreement Federal Funds and Other Federal Funds. If there are no Other Federal Funds, the Federal Share is the same as the Agreement Federal Funds. “General Terms and Conditions” means this Attachment 1. “Other Federal Funds” means Federal funds that are part of the Approved Project Budget in Section 6.5 of Attachment 2 of this Agreement for the Project but are not obligated under this Agreement.
“Project” means the project proposed in the Application, as modified by the negotiated provisions of this Agreement, including Attachment 2 of this Agreement. “Project Closeout” means the date that FRA notifies the Recipient that the award is closed out.
Under 2 C.F.R. § 200.344, Project Closeout should occur no later than one year after the end of the Period of Performance.
“Project Cost Savings” means the difference between the actual costs to complete the Project and the estimated total Project cost listed in Section 6.5 of Attachment 2 of this Agreement, if after the Recipient completes the tasks identified in Article 4 of Attachment 2 of this Agreement to FRA’s satisfaction, the actual Project costs are less than the estimated total Project costs. “Rural Area” means any area that is not within an area designated as an urbanized area by the Bureau of the Census.
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36 24.5 Calendar Dates
Unless otherwise specified, all dates and durations are in calendar days, calendar quarters, or calendar years, as appropriate.
24.6 Communication in Writing
Unless otherwise specified, all written communication may be provided by electronic mail.
ARTICLE 25: AGREEMENT EXECUTION AND EFFECTIVE DATE
25.1 Counterparts
This agreement may be executed in counterparts, which constitute one document. The parties intend each countersigned original to have identical legal effect.
25.2 Effective Date
The agreement will become effective when all parties have signed it. The date of this Agreement will be the date this Agreement is signed by the last party to sign it.
ARTICLE 26: PROGRAM-SPECIFIC CLAUSES
26.1 Interstate Rail Compacts Grant Program
The Recipient agrees to comply with the clauses in Section 26.1 of this Attachment 1.
Consistent with 49 U.S.C. § 22905(e), clauses (b) through (g) of Section 26.1 of this Attachment 1 do not apply to: 1) commuter rail passenger transportation (as defined in 49 U.S.C. § 24102(3)) operations of a State or local government authority (as those terms are defined in 49 U.S.C. § 5302) or its contractor performing services in connection with commuter rail passenger operations; 2) the Alaska Railroad or its contractors; or 3) Amtrak’s access rights to railroad right of way and facilities under current law.
(a) Non-Federal Match. The Recipient will provide a Non-Federal match of not less than 50 percent of the eligible expenses under the grant.
(b) Buy America. In lieu of Section 12.1 of this Attachment 1, the Recipient will comply with the following clauses, as applicable:
(1) for infrastructure projects, steel, iron, and manufactured products used in the Project are subject to 49 U.S.C. § 22905(a), as implemented by FRA. The Recipient acknowledges that this agreement is neither a waiver of 49 U.S.C. § 22905(a)(1) nor a finding under 49 U.S.C. § 22905(a)(2). For infrastructure projects, construction materials used in the Project are subject to the domestic preference requirement at § 70914 of the Build America, Buy America Act, Pub. L. No. 117-58, div. G, tit. IX, subtit. A, 135 Stat. 429, 1298 (2021) and 2 C.F.R. part 184, as implemented by OMB, USDOT and FRA. The Recipient acknowledges that this agreement is neither a waiver of § 70914(a) nor a finding under § 70914(b). 870
37 (2) for non-infrastructure projects, steel, iron, and manufactured products used in the Project are subject to 49 U.S.C. § 22905(a), as implemented by FRA. The Recipient acknowledges that this agreement is neither a waiver of 49 U.S.C. § 22905(a)(1) nor a finding under 49 U.S.C. § 22905(a)(2). (3) under Section 26.1 of this Attachment 1, “infrastructure project” has the definition provided in 2 C.F.R. § 184.3.
(4) for all projects, as appropriate and to the extent consistent with law, the Recipient should under 2 C.F.R. § 200.322, to the greatest extent practicable under this award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States. The Recipient shall include the requirements of 2 C.F.R. § 200.322 in all subawards including all contracts and purchase orders for work or products under this award. (c) Operators Deemed Rail Carriers. The Recipient recognizes and agrees that 49 U.S.C. § 22905(b) provides that persons conducting rail operations over rail infrastructure constructed or improved in whole or in part with funds provided under chapter 229 of Title 49, United States Code, will be considered a “rail carrier” as defined by 49 U.S.C. § 10102(5), for purposes of Title 49, United States Code, and any other statute that adopts that definition or in which that definition applies, including: the Railroad Retirement Act of 1974 (45 U.S.C. § 231 et seq.); the Railway Labor Act (45 U.S.C. § 151 et seq.); and the Railroad Unemployment Insurance Act (45 U.S.C. § 351 et seq.). The Recipient agrees to reflect this provision in its agreements (if any) with any entity operating rail services over such rail infrastructure.
(d) Railroad Agreements. In accordance with 49 U.S.C. § 22905(c)(1), if the Project funded by this Agreement uses rights-of-way owned by a railroad, then Recipient represents that it has entered into a written agreement with that railroad owner, which includes:
compensation for such use; assurances regarding the adequacy of infrastructure capacity to accommodate both existing and future freight and passenger operations; an assurance by the railroad that collective bargaining agreements with railroad’s employees (including terms regulating the contracting of work) will remain in full force and effect according to their terms for work performed by the railroad on the railroad transportation corridor; and an assurance that Recipient complies with liability requirements consistent with 49 U.S.C. § 28103.
By signing this Agreement, Recipient certifies that the written agreement referenced in this Section 26.1(d) has been executed or is not required.
Additional guidance on compliance with the Railroad Agreements provisions is available on FRA’s website at: https://railroads.dot.gov/elibrary/frequently-asked-questions-aboutrail-improvement-grant-conditions-under-49-usc-ss-22905c1. (e) Labor Protective Arrangements. In accordance with 49 U.S.C. § 22905(c)(2)(B), if the Project funded by this Agreement uses rights-of-way owned by a railroad, then the Recipient will ensure compliance with the protective arrangements that are equivalent to 871
38 those established under Section 504 of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 22404. Such protective arrangements are included herein as Exhibit B.5.
(f) Davis-Bacon and Related Acts Provisions. In accordance with 49 U.S.C. § 22905(c)(2)(A), if the Project funded by this Agreement uses rights-of-way owned by a railroad, the Recipient will ensure compliance with the standards of 49 U.S.C. § 24312 with respect to the Project in the same manner that Amtrak is required to comply with those standards for construction work financed under an agreement made under 49 U.S.C.§ 24308(a). For these purposes, wages in collective bargaining agreements negotiated under the Railway Labor Act are deemed to comply with Davis-Bacon Act requirements.
(g) Replacement of Existing Intercity Passenger Rail Service. If an intercity passenger rail transportation provider replaces Amtrak intercity passenger rail service through a Project funded by this Agreement, then such provider must comply with the provisions of 49 U.S.C. § 22905(d).
(h) Operator Limitation. Recipient’s eligible expenses must be related to intercity passenger rail service to be operated by Amtrak.
(i) Reporting. As requested by FRA, the Recipient will report on:
(1) the status of the planning efforts and coordination funded by the grant award; (2) plans for continued implementation of the interstate rail compact; (3) the status of, and data regarding, any new, restored, or enhanced rail services initiated under the interstate rail compact; and
(4) other data and information as requested by FRA.
26.2 Railroad Crossing Elimination Program Clauses
The Recipient agrees to comply with the clauses in Section 26.2 of this Attachment 1.
Consistent with 49 U.S.C. §§ 22905(e) & 22909(j), clauses (b), (c), (d), and (g) of Section 26.2 of this Agreement 1 do not apply to: 1) commuter rail passenger transportation (as defined in 49 U.S.C. § 24102(3)) operations of a State or local government authority (as those terms are defined in 49 U.S.C. § 5302) or its contractor performing services in connection with commuter rail passenger operations; 2) the Alaska Railroad or its contractors; or 3) Amtrak’s access rights to railroad right of way and facilities under current law. In addition, clause (f) does not apply to:
1) the Alaska Railroad or its contractors; or 2) Amtrak’s access rights to railroad right of way and facilities under current law.
(a) Federal Share. The Federal Share of total Project costs shall not exceed 80 percent. (b) Buy America. In lieu of Section 12.1 of this Agreement 1:
872
39 (1) for infrastructure projects, steel, iron, and manufactured products used in the Project are subject to 49 U.S.C. § 22905(a), as implemented by FRA. The Recipient acknowledges that this Agreement is neither a waiver of 49 U.S.C. § 22905(a)(1) nor a finding under 49 U.S.C. § 22905(a)(2). For infrastructure projects, construction materials used in the Project are subject to the domestic preference requirement at § 70914 of the Build America, Buy America Act, Pub. L. No. 117-58, div. G, tit. IX, subtit. A, 135 Stat. 429, 1298 (2021) and 2 C.F.R. part 184, as implemented by OMB, USDOT and FRA. The Recipient acknowledges that this Agreement is neither a waiver of § 70914(a) nor a finding under § 70914(b). (2) for non-infrastructure projects, steel, iron, and manufactured products used in the Project are subject to 49 U.S.C. § 22905(a), as implemented by FRA. The Recipient acknowledges that this Agreement is neither a waiver of 49 U.S.C. § 22905(a)(1) nor a finding under 49 U.S.C. § 22905(a)(2). (3) under this Section, “infrastructure project” has the definition provided in 2 C.F.R. § 184.3.
(4) for all projects, as appropriate and to the extent consistent with law, the Recipient should under 2 C.F.R. § 200.322, to the greatest extent practicable under this award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States. The Recipient shall include the requirements of 2 C.F.R. § 200.322 in all subawards including all contracts and purchase orders for work or products under this award. (c) Operators Deemed Rail Carriers. The Recipient recognizes and agrees that 49 U.S.C. § 22905(b) provides that persons conducting rail operations over rail infrastructure constructed or improved in whole or in part with funds provided under chapter 229 of Title 49, United States Code, will be considered a “rail carrier” as defined by 49 U.S.C. § 10102(5), for purposes of Title 49, United States Code, and any other statute that adopts that definition or in which that definition applies, including: the Railroad Retirement Act of 1974 (45 U.S.C. § 231 et seq.); the Railway Labor Act (45 U.S.C. § 151 et seq.); and the Railroad Unemployment Insurance Act (45 U.S.C. § 351 et seq.). The Recipient agrees to reflect this provision in its agreements (if any) with any entity operating rail services over such rail infrastructure.
(d) Railroad Agreements. In accordance with 49 U.S.C. § 22905(c)(1), if the Project funded by this Agreement uses rights-of-way owned by a railroad, then Recipient represents that it has entered into a written agreement with that railroad owner, which includes:
compensation for such use; assurances regarding the adequacy of infrastructure capacity to accommodate both existing and future freight and passenger operations; an assurance by the railroad that collective bargaining agreements with railroad’s employees (including terms regulating the contracting of work) will remain in full force and effect according to their terms for work performed by the railroad on the railroad transportation corridor; and an assurance that Recipient complies with liability requirements consistent with 49 U.S.C. § 28103.
873
40 By signing this Agreement, Recipient certifies that the written agreement referenced in this Section 26.2(d) has been executed or is not required.
Additional guidance on compliance with the Railroad Agreements provisions is available on FRA’s website at: https://railroads.dot.gov/elibrary/frequently-asked-questions-aboutrail-improvement-grant-conditions-under-49-usc-ss-22905c1. (e) Impacted Rail Carrier or Real Property Owner Approvals. In accordance with 49 U.S.C. § 22909(e)(2)(A), prior to proceeding with the construction of the Project funded by this Agreement, if applicable, Recipient will obtain necessary approvals to commence construction from any impacted rail carriers or real property owners. If the Project is a planning project, as described in 49 U.S.C. § 22909(d)(6), the Recipient agrees to work collaboratively with rail carriers and right-of-way owners. (f) Labor Protective Arrangements
(1) Notwithstanding 49 U.S.C. § 22905(e)(1), and in accordance with 49 U.S.C. § 22909(j)(3), any employee covered by the Railway Labor Act (45 U.S.C. § 151 et seq.) and the Railroad Retirement Act of 1974 (45 U.S.C. § 231 et seq.) who is adversely affected by actions taken in connection with the project financed in whole or in part by such grant shall be covered by employee protective arrangements required to be established under 49 U.S.C. § 22905(c)(2)(B). In accordance with 49 U.S.C. § 22905(c)(2)(B), the Recipient will ensure compliance with the protective arrangements that are equivalent to those established under Section 504 of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 22404, as such protective arrangements are described in the final FRA guidance titled Equivalent Protections for Railroad Employees and effective December 28, 2022, included herein in Exhibit B.
(2) In accordance with 49 U.S.C. § 22909(j)(3), Recipient, and any successors, assigns, and contractors of Recipient:
i. shall be bound by the employee protective arrangements required under subparagraph (1); and
ii. shall be responsible for the implementation of such arrangements and for the obligations under such arrangements, but may arrange for another entity to take initial responsibility for compliance with the conditions of such arrangement.
(3) Labor protections required pursuant to Subsection (f) of Section 26.2 of this Attachment 1 shall be documented consistent with Article 18 of this Attachment
1. (g) Davis-Bacon and Related Acts Provisions. In accordance with 49 U.S.C. § 22905(c)(2)(A), if the Project funded by this Agreement uses rights-of-way owned by a railroad, the Recipient will ensure compliance with the standards of 49 U.S.C. § 24312 with respect to the Project in the same manner that Amtrak is required to comply with 874
41 those standards for construction work financed under an agreement made under 49 U.S.C.§ 24308(a). For these purposes, wages in collective bargaining agreements negotiated under the Railway Labor Act are deemed to comply with Davis-Bacon Act requirements.
(h) Replacement of Existing Intercity Passenger Rail Service. If an intercity passenger rail transportation provider replaces Amtrak intercity passenger rail service through a Project funded by this Agreement, then such provider must comply with the provisions of 49 U.S.C. § 22905(d).
26.3 Consolidated Rail Infrastructure and Safety Improvements Grants Clauses The Recipient agrees to comply with the clauses in Section 26.3 of this Attachment 1.
Consistent with 49 U.S.C. § 22905(e), clauses (b) and (c) through (g) of Section 26.3 of this Attachment 1 do not apply to: 1) commuter rail passenger transportation (as defined in 49 U.S.C. § 24102(3)) operations of a State or local government authority (as those terms are defined in 49 U.S.C. § 5302) or its contractor performing services in connection with commuter rail passenger operations; 2) the Alaska Railroad or its contractors; or 3) Amtrak’s access rights to railroad right of way and facilities under current law. (a) Federal Share. The Federal Share of total Project costs shall not exceed 80 percent. (b) Buy America. In lieu of Section 12.1 of this Attachment 1:
(1) for infrastructure projects, steel, iron, and manufactured products used in the Project are subject to 49 U.S.C. §22905(a), as implemented by FRA. The Recipient acknowledges that this Agreement is neither a waiver of 49 U.S.C. § 22905(a)(1) nor a finding under 49 U.S.C. § 22905(a)(2). For infrastructure projects, construction materials used in the Project are subject to the domestic preference requirement at § 70914 of the Build America, Buy America Act, Pub. L. No. 117-58, div. G, tit. IX, subtit. A, 135 Stat. 429, 1298 (2021) and 2 C.F.R. part 184, as implemented by OMB, USDOT and FRA. The Recipient acknowledges that this Agreement is neither a waiver of § 70914(a) nor a finding under § 70914(b). (2) for non-infrastructure projects, steel, iron, and manufactured products used in the Project are subject to 49 U.S.C. § 22905(a), as implemented by FRA. The Recipient acknowledges that this Agreement is neither a waiver of 49 U.S.C. § 22905(a)(1) nor a finding under 49 U.S.C. § 22905(a)(2). (3) under this Section, “infrastructure project” has the definition provided in 2 C.F.R. § 184.3.
(4) for all projects, as appropriate and to the extent consistent with law, the Recipient should under 2 C.F.R. § 200.322, to the greatest extent practicable under this award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States. The Recipient shall 875
42 include the requirements of 2 C.F.R. § 200.322 in all subawards including all contracts and purchase orders for work or products under this award. (c) Operators Deemed Rail Carriers. The Recipient recognizes and agrees that 49 U.S.C. § 22905(b) provides that persons conducting rail operations over rail infrastructure constructed or improved in whole or in part with funds provided under chapter 229 of Title 49, United States Code, will be considered a “rail carrier” as defined by 49 U.S.C. § 10102(5), for purposes of Title 49, United States Code, and any other statute that adopts that definition or in which that definition applies, including: the Railroad Retirement Act of 1974 (45 U.S.C. § 231 et seq.); the Railway Labor Act (45 U.S.C. § 151 et seq.); and the Railroad Unemployment Insurance Act (45 U.S.C. § 351 et seq.). The Recipient agrees to reflect this provision in its agreements (if any) with any entity operating rail services over such rail infrastructure.
(d) Railroad Agreements. In accordance with 49 U.S.C. § 22905(c)(1), if the Project funded by this Agreement uses rights-of-way owned by a railroad, then Recipient represents that it has entered into a written agreement with that railroad owner, which includes:
compensation for such use; assurances regarding the adequacy of infrastructure capacity to accommodate both existing and future freight and passenger operations; an assurance by the railroad that collective bargaining agreements with railroad’s employees (including terms regulating the contracting of work) will remain in full force and effect according to their terms for work performed by the railroad on the railroad transportation corridor; and an assurance that Recipient complies with liability requirements consistent with 49 U.S.C. § 28103.
By signing this Agreement, Recipient certifies that the written agreement referenced in this Section 26.3(d) has been executed or is not required.
Additional guidance on compliance with the Railroad Agreements provisions is available on FRA’s website at: https://railroads.dot.gov/elibrary/frequently-asked-questions-aboutrail-improvement-grant-conditions-under-49-usc-ss-22905c1. (e) Labor Protective Arrangements. In accordance with 49 U.S.C. § 22905(c)(2)(B), if the Project funded by this Agreement uses rights-of-way owned by a railroad, then the Recipient will ensure compliance with the protective arrangements that are equivalent to those established under Section 504 of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 22404. Such protective arrangements are included herein as Exhibit B.5.
(f) Davis-Bacon and Related Acts Provisions. In accordance with 49 U.S.C. § 22905(c)(2)(A), if the Project funded by this Agreement uses rights-of-way owned by a railroad, the Recipient will ensure compliance with the standards of 49 U.S.C. § 24312 with respect to the Project in the same manner that Amtrak is required to comply with those standards for construction work financed under an agreement made under 49 U.S.C.§ 24308(a). For these purposes, wages in collective bargaining agreements 876
43 negotiated under the Railway Labor Act are deemed to comply with Davis-Bacon Act requirements.
(g) Replacement of Existing Intercity Passenger Rail Service. If an intercity passenger rail transportation provider replaces Amtrak intercity passenger rail service through a Project funded by this Agreement, then such provider must comply with the provisions of 49 U.S.C. § 22905(d).
26.4 Restoration and Enhancement Grants Clauses
The Recipient agrees to comply with the clauses in Section 26.4 of this Attachment 1.
Consistent with 49 U.S.C. § 22905(e), clauses (b) and (c) through (g) of Section 26.4 do not apply to: 1) commuter rail passenger transportation (as defined in 49 U.S.C. § 24102(3)) operations of a State or local government authority (as those terms are defined in 49 U.S.C. § 5302) or its contractor performing services in connection with commuter rail passenger operations; 2) the Alaska Railroad or its contractors; or 3) Amtrak’s access rights to railroad right-of -way and facilities under current law.
(a) Maximum Funding Limitation. A grant authorized by 49 U.S.C. § 22908 may not exceed:
(1) 90 percent of the projected net operating costs for the first year of service; (2) 80 percent of the projected net operating costs for the second year of service; (3) 70 percent of the projected net operating costs for the third year of service; (4) 60 percent of the projected net operating costs for the fourth year of service; (5) 50 percent of the projected net operating costs for the fifth year of service; and
(6) 30 percent of the projected net operating costs for the sixth year of service. (b) Buy America. In lieu of Section 12.1 of this Agreement 1:
(1) for infrastructure projects, steel, iron, and manufactured products used in the Project are subject to 49 U.S.C. § 22905(a), as implemented by FRA. The Recipient acknowledges that this Agreement is neither a waiver of 49 U.S.C. § 22905(a)(1) nor a finding under 49 U.S.C. § 22905(a)(2). For infrastructure projects, construction materials used in the Project are subject to the domestic preference requirement at § 70914 of the Build America, Buy America Act, Pub. L. No. 117-58, div. G, tit. IX, subtit. A, 135 Stat. 429, 1298 (2021) and 2 C.F.R. part 184, as implemented by OMB, USDOT, and FRA. The Recipient acknowledges that this Agreement is neither a waiver of § 70914(a) nor a finding under § 70914(b). (2) for non-infrastructure projects, steel, iron, and manufactured products used in the Project are subject to 49 U.S.C. § 22905(a), as implemented by FRA. The 877
44 Recipient acknowledges that this Agreement is neither a waiver of 49 U.S.C. § 22905(a)(1) nor a finding under 49 U.S.C. § 22905(a)(2). (3) under Section 26.4 of this Attachment 1, “infrastructure project” has the definition provided in 2 C.F.R. § 184.3.
(4) for all projects, as appropriate and to the extent consistent with law, the Recipient should under 2 C.F.R. § 200.322, to the greatest extent practicable under this award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States. The Recipient shall include the requirements of 2 C.F.R. § 200.322 in all subawards including all contracts and purchase orders for work or products under this award. (c) Operators Deemed Rail Carriers. The Recipient recognizes and agrees that 49 U.S.C. § 22905(b) provides that persons conducting rail operations over rail infrastructure constructed or improved in whole or in part with funds provided under chapter 229 of Title 49, United States Code, will be considered a “rail carrier” as defined by 49 U.S.C. § 10102(5), for purposes of Title 49, United States Code, and any other statute that adopts that definition or in which that definition applies, including: the Railroad Retirement Act of 1974 (45 U.S.C. § 231 et seq.); the Railway Labor Act (45 U.S.C. § 151 et seq.); and the Railroad Unemployment Insurance Act (45 U.S.C. § 351 et seq.). The Recipient agrees to reflect this provision in its agreements (if any) with any entity operating rail services over such rail infrastructure.
(d) Railroad Agreements. In accordance with 49 U.S.C. § 22905(c)(1), if the Project funded by this Agreement uses rights-of-way owned by a railroad, then Recipient represents that it has entered into a written agreement with that railroad owner, which includes:
compensation for such use; assurances regarding the adequacy of infrastructure capacity to accommodate both existing and future freight and passenger operations; an assurance by the railroad that collective bargaining agreements with railroad’s employees (including terms regulating the contracting of work) will remain in full force and effect according to their terms for work performed by the railroad on the railroad transportation corridor; and an assurance that Recipient complies with liability requirements consistent with 49 U.S.C. § 28103.
By signing this Agreement, Recipient certifies that the written agreement referenced in this Section 26.4(d) has been executed or is not required.
Additional guidance on compliance with the Railroad Agreements provisions is available on FRA’s website at: https://railroads.dot.gov/elibrary/frequently-asked-questions-aboutrail-improvement-grant-conditions-under-49-usc-ss-22905c1. (e) Labor Protective Arrangements. In accordance with 49 U.S.C. § 22905(c)(2)(B), if the Project funded by this Agreement uses rights-of-way owned by a railroad, then the Recipient will ensure compliance with the protective arrangements that are equivalent to those established under Section 504 of the Railroad Revitalization and Regulatory Reform 878
45 Act of 1976, 49 U.S.C. § 22404. Such protective arrangements are included herein as Exhibit B.5.
(f) Davis-Bacon and Related Acts Provisions. In accordance with 49 U.S.C. § 22905(c)(2)(A), if the Project funded by this Agreement uses rights-of-way owned by a railroad, the Recipient will ensure compliance with the standards of 49 U.S.C. § 24312 with respect to the Project in the same manner that Amtrak is required to comply with those standards for construction work financed under an agreement made under 49 U.S.C.§ 24308(a). For these purposes, wages in collective bargaining agreements negotiated under the Railway Labor Act are deemed to comply with Davis-Bacon Act requirements.
(g) Replacement of Existing Intercity Passenger Rail Service. If an intercity passenger rail transportation provider replaces Amtrak intercity passenger rail service through a Project funded by this Agreement, then such provider must comply with the provisions of 49 U.S.C. § 22905(d).
(h) Route Reporting. The Recipient will provide similar information regarding the route performance, financial, and ridership projections, and capital and business plans that Amtrak is required to provide, and such other data and information as is required by Article 4 of Attachment 2 of this Agreement.
(i) Termination. In addition to the terms of this Attachment 1, FRA may terminate this Agreement upon the cessation of service, or the violation of any other term of this Agreement.
26.5 Federal-State Partnership for Intercity Passenger Rail and Federal-State Partnership for State of Good Repair Clauses
The Recipient agrees to comply with the clauses in Section 26.5 of this Attachment 1.
Consistent with 49 U.S.C. § 22905(e), clauses (b) through (g) of Section 26.5 of this Attachment 1 do not apply to: 1) commuter rail passenger transportation (as defined in 49 U.S.C. § 24102(3)) operations of a State or local government authority (as those terms are defined in 49 U.S.C. § 5302) or its contractor performing services in connection with commuter rail passenger operations; 2) the Alaska Railroad or its contractors; or 3) Amtrak’s access rights to railroad right of way and facilities under current law.
(a) Federal Share. The Federal Share of total Project costs shall not exceed 80 percent. (b) Buy America. In lieu of Section 12.1 of this Attachment 1:
(1) for infrastructure projects, steel, iron, and manufactured products used in the Project are subject to 49 U.S.C. § 22905(a), as implemented by FRA. The Recipient acknowledges that this Agreement is neither a waiver of 49 U.S.C. § 22905(a)(1) nor a finding under 49 U.S.C. § 22905(a)(2). For infrastructure projects, construction materials used in the Project are subject to the domestic preference requirement at § 70914 of the Build America, Buy America Act, Pub. L. No. 117-58, 879
46 div. G, tit. IX, subtit. A, 135 Stat. 429, 1298 (2021) and 2 C.F.R. part 184, as implemented by OMB, USDOT and FRA. The Recipient acknowledges that this Agreement is neither a waiver of § 70914(a) nor a finding under § 70914(b). (2) for non-infrastructure projects, steel, iron, and manufactured products used in the Project are subject to 49 U.S.C. § 22905(a), as implemented by FRA. The Recipient acknowledges that this Agreement is neither a waiver of 49 U.S.C. § 22905(a)(1) nor a finding under 49 U.S.C. § 22905(a)(2). (3) under this Section, “infrastructure project” has the definition provided in 2 C.F.R. § 184.3.
(4) for all projects, as appropriate and to the extent consistent with law, the Recipient should under 2 C.F.R. § 200.322, to the greatest extent practicable under this award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States. The Recipient shall include the requirements of 2 C.F.R. § 200.322 in all subawards including all contracts and purchase orders for work or products under this award. (c) Operators Deemed Rail Carriers. The Recipient recognizes and agrees that 49 U.S.C. § 22905(b) provides that persons conducting rail operations over rail infrastructure constructed or improved in whole or in part with funds provided under chapter 229 of Title 49, United States Code, will be considered a “rail carrier” as defined by 49 U.S.C. § 10102(5), for purposes of Title 49, United States Code, and any other statute that adopts that definition or in which that definition applies, including: the Railroad Retirement Act of 1974 (45 U.S.C. § 231 et seq.); the Railway Labor Act (45 U.S.C. § 151 et seq.); and the Railroad Unemployment Insurance Act (45 U.S.C. § 351 et seq.). The Recipient agrees to reflect this provision in its agreements (if any) with any entity operating rail services over such rail infrastructure.
(d) Railroad Agreements. In accordance with 49 U.S.C. § 22905(c)(1), if the Project funded by this Agreement uses rights-of-way owned by a railroad, then Recipient represents that it has entered into a written agreement with that railroad owner, which includes:
compensation for such use; assurances regarding the adequacy of infrastructure capacity to accommodate both existing and future freight and passenger operations; an assurance by the railroad that collective bargaining agreements with railroad’s employees (including terms regulating the contracting of work) will remain in full force and effect according to their terms for work performed by the railroad on the railroad transportation corridor; and an assurance that Recipient complies with liability requirements consistent with 49 U.S.C. § 28103.
By signing this Agreement, Recipient certifies that the written agreement referenced in this Section 26.5(d) has been executed or is not required.
Additional guidance on compliance with the Railroad Agreements provisions is available on FRA’s website at: https://railroads.dot.gov/elibrary/frequently-asked-questions-aboutrail-improvement-grant-conditions-under-49-usc-ss-22905c1. 880
47 (e) Labor Protective Arrangements. In accordance with 49 U.S.C. § 22905(c)(2)(B), if the Project funded by this Agreement uses rights-of-way owned by a railroad, then the Recipient will ensure compliance with the protective arrangements that are equivalent to those established under Section 504 of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 22404. Such protective arrangements are included herein as Exhibit B.5.
(f) Davis-Bacon and Related Acts Provisions. In accordance with 49 U.S.C. § 22905(c)(2)(A), if the Project funded by this Agreement uses rights-of-way owned by a railroad, the Recipient will ensure compliance with the standards of 49 U.S.C. § 24312 with respect to the Project in the same manner that Amtrak is required to comply with those standards for construction work financed under an agreement made under 49 U.S.C.§ 24308(a). For these purposes, wages in collective bargaining agreements negotiated under the Railway Labor Act are deemed to comply with Davis-Bacon Act requirements.
(g) Replacement of Existing Intercity Passenger Rail Service. If an intercity passenger rail transportation provider replaces Amtrak intercity passenger rail service through a Project funded by this Agreement, then such provider must comply with the provisions of 49 U.S.C. § 22905(d).
(h) Northeast Corridor Cost Allocation. For projects located on the Northeast Corridor, as that term is defined in 49 U.S.C. § 24911(a)(4), Amtrak and the public authorities providing commuter rail passenger transportation at the Project location on the Northeast Corridor must remain in compliance with 49 U.S.C. § 24905(c)(2). (i) Interest and Financing Costs. Pursuant to 49 U.S.C. § 24911(g)(2), interest and other financing costs of efficiently carrying out a part of the Project within a reasonable time are a cost of carrying out the Project under a Phased Funding Agreement, except that eligible costs may not be more than the cost of the most favorable financing terms reasonably available for the Project at the time of borrowing. The Recipient will certify to FRA’s satisfaction that the Recipient has shown reasonable diligence in seeking the most favorable financing terms.
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881
Version Date: December 11, 2023
Attachment 2
PROJECT-SPECIFIC
TERMS AND CONDITIONS
882
2 Project-Specific Terms and Conditions
Table of Contents
ARTICLE 1: PROJECT-SPECIFIC DESIGNATIONS .............................................................................................. 4
1.1 Recipient ....................................................................................................................................... 4
1.2 Project and Purpose ...................................................................................................................... 4
1.3 Program Designations ................................................................................................................... 4 ARTICLE 2: SPECIAL TERMS AND CONDITIONS ............................................................................................. 4 ARTICLE 3: ADMINISTRATIVE INFORMATION ............................................................................................... 4
3.1 Application .................................................................................................................................... 4
3.2 FRA Awarding Official.................................................................................................................... 5
3.3 Federal Award Date ...................................................................................................................... 5
3.4 Program Name and Assistance Listings Number .......................................................................... 5
3.5 Recipient’s Unique Entity Identifier .............................................................................................. 5
3.6 Federal Award Identification Number .......................................................................................... 5 ARTICLE 4: STATEMENT OF WORK ................................................................................................................ 5
4.1 General Project Description .......................................................................................................... 5
4.2 Project Location ............................................................................................................................ 5
4.3 Project Scope ................................................................................................................................ 5
4.4 Implement Required Environmental Commitments................................................................... 11 ARTICLE 5: AWARD DATES AND ESTIMATED PROJECT SCHEDULE ............................................................. 11
5.1 Award Dates ................................................................................................................................ 11
5.2 Estimated Project Schedule ........................................................................................................ 12 ARTICLE 6: AWARD AND PROJECT FINANCIAL INFORMATION ................................................................... 12
6.1 Award Amount ............................................................................................................................ 12
6.2 Federal Obligation Information .................................................................................................. 12
6.3 Federal Authorization and Funding Source. ............................................................................... 12
6.4 Funding Availability ..................................................................................................................... 12
6.5 Approved Project Budget ............................................................................................................ 12
6.6 Pre-Award Costs .......................................................................................................................... 13
6.7 Phased Funding Agreement ........................................................................................................ 14 ARTICLE 7: PERFORMANCE MEASUREMENT INFORMATION ..................................................................... 14 883
3 ARTICLE 8: ENVIRONMENTAL COMPLIANCE ............................................................................................... 15 ARTICLE 9: CLIMATE CHANGE AND ENVIRONMENTAL JUSTICE IMPACTS .................................................. 15
9.1 Consideration of Climate Change and Environmental Justice Impacts ...................................... 15
9.2 Supporting Narrative ................................................................................................................... 17 ARTICLE 10: RACIAL EQUITY AND BARRIERS TO OPPORTUNITY ................................................................. 18
10.1 Efforts to Improve Racial Equity and Reduce Barriers to Opportunity ....................................... 18
10.2 Supporting Narrative ................................................................................................................... 19 ARTICLE 11: LABOR AND WORK .................................................................................................................. 21
11.1 Efforts to Support Good-Paying Jobs and Strong Labor Standards ............................................ 21
11.2 Supporting Narrative ................................................................................................................... 22
884
4 ARTICLE 1: PROJECT-SPECIFIC DESIGNATIONS
1.1 Recipient
This Agreement (Agreement) is between the Federal Railroad Administration (FRA) and the City of Banning (the Recipient).
1.2 Project and Purpose
The purpose of this award is to fund a Fiscal Year (FY) 2022 Railroad Crossing Elimination Program grant for the Hargrave Grade Separation Planning Project (the Project), as described in Article 4 of this Attachment 2, to help achieve the goals identified in the Notice of Funding Opportunity for the Notice of Funding Opportunity for Railroad Crossing Elimination Program, 87 Fed. Reg. 40335, July 6, 2022, that solicited applications for Federal financial assistance. FRA and the Recipient will accomplish that purpose by timely completing the Project and ensuring that this award does not substitute for non-Federal investment in the Project, except as proposed in the Application.
1.3 Program Designations
(a) Research and Development. This award is not for research and development. (b) Project Size. This award is for a non-Major Project as that term is defined in FRA Guidance on Development and Implementation of Railroad Capital Projects, January 11, 2023 (Railroad Capital Projects Guidance).
(c) Phased Funding. This award is not a phased funding agreement as further discussed in Section 6.7 of this Attachment 2.
(d) Grant or Cooperative Agreement. This award is made as a Grant Agreement. (e) Security Risk. This award is for a Project that has a low security risk. (f) Rural Area. The information the Recipient provided to FRA, including in the Application, demonstrates this award is not for a Project in a Rural Area.
ARTICLE 2: SPECIAL TERMS AND CONDITIONS
There are no special terms for this award.
ARTICLE 3: ADMINISTRATIVE INFORMATION
3.1 Application
Application Title: Hargrave Grade Separation Planning Project Application Date: October 10, 2022
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5 3.2 FRA Awarding Official
FRA Office of Railroad Development
Federal Railroad Administration
1200 New Jersey Ave, SE
Washington, DC 20590
[email protected]
3.3 Federal Award Date
The “Federal Award Date” is the effective date of this Agreement, as defined under Section 24.4 of Attachment 1 of this Agreement.
3.4 Program Name and Assistance Listings Number
For the FY22 Railroad Crossing Elimination Grant Program, the Assistance Listings Number is 20.327 and the Assistance Listings Title is Railroad Crossing Elimination.
3.5 Recipient’s Unique Entity Identifier
The Recipient’s Unique Entity Identifier, as defined at 2 C.F.R. ß 25.415, is listed in Section 1B on the Agreement cover sheet.
3.6 Federal Award Identification Number
The Federal Award Identification Number is listed in Section 2 on the Agreement cover sheet as the “Agreement Number.”
ARTICLE 4: STATEMENT OF WORK
4.1 General Project Description
The objective of this Project is to accomplish project development activities to prepare the City of Banning, California for a future proposed project for the construction of a grade separation and surface transportation infrastructure improvements on the Hargrave Street at-grade highway-rail crossing (U.S.
Department of Transportation Crossing ID# 760695J). Project activities include: engineering, stakeholder engagement and agreements, environmental compliance and documentation, and design plans and specifications, bidding documents, cost estimates, financial plan, and procurement strategy. The Project will provide the foundation to eliminate an at-grade crossing at Hargrave Street through construction of a rail bridge and road undercrossing that will separate rail and motor vehicle traffic. All project elements are synergistic and essential to ensure a safer, more effective transportation system that will better serve the disadvantaged community of Banning.
4.2 Project Location
The Project will lay the groundwork for surface transportation infrastructure improvements in the vicinity of the Hargrave Street at-grade crossing at railroad milepost 0568.720, located at Latitude
33.923503 and Longitude -116.867964. This Union Pacific Railroad owned crossing is approximately 230 feet south of Interstate 10 in the City of Banning, California. Banning is located approximately 80 miles 886
6 east of downtown Los Angeles and 30 miles west of Palm Springs and is connected to these metropolitan areas by both I-10 and the railroad.
4.3 Project Scope
The Recipient will notify FRA in writing of any requested changes in Project Scope and will not proceed with the changed scope unless approved by FRA in writing. If approved, changes to Project Scope may require additional environmental review or an amendment to this Agreement.
Task 1: Project Administration and Management
Subtask 1.1: Project Administration
The Recipient will perform all tasks required for the Project through a coordinated process, which will involve affected railroad owners, operators, and funding partners, including:
• Union Pacific Railroad – railroad/crossing owner
• California Department of Transportation (Caltrans) – manages nearby state highway/freeway lanes
Exhibit A: Map depicting Project location and markets served. 887
7 • Riverside County Transportation Commission – will provide funding for this planning phase of the project
• Selected planning/design consultant – responsible for carrying out project tasks and activities • FRA
The Recipient will facilitate the coordination of all activities necessary for implementation of the Project.
The Recipient will:
• complete necessary steps to hire a qualified consultant/contractor to perform required Project work, as necessary;
• hold regularly scheduled Project meetings with FRA;
• inspect and approve work as it is completed; and
• participate in other coordination, as needed.
Subtask 1.2: Project Management Plan
The Recipient will prepare a Project Management Plan (PMP), that describes how the Project will be implemented and monitored to ensure effective, efficient, and safe delivery of the Project on time and within budget. The PMP will describe, in detail, the activities and steps necessary to complete the tasks outlined in this Statement of Work.
The PMP will include a Project Schedule and Project Budget for the work to be performed under this Agreement. The Project Schedule will be consistent with the Estimated Project Schedule in Section 5.2 of this Attachment 2, but provide a greater level of detail. Similarly, the Project Budget should be consistent with the Approved Project Budget in Section 6.5 of this Attachment 2, but provide a greater level of detail.
The Recipient will submit the PMP to FRA for review and approval. The Recipient will implement the Project as described in the approved PMP. The Recipient will not begin work on subsequent tasks until FRA has provided written approval of the PMP, unless FRA has provided pre-award authority for such work under Section 6.6 of this Attachment 2. FRA will not reimburse the Recipient for costs incurred in contravention of this requirement.
FRA may require the Recipient to update the PMP. The Recipient will submit any such updates to FRA for review and approval, and FRA will determine if updates to the PMP require an amendment to this Agreement. The Project Budget and Project Schedule may be revised consistent with Article 5 of Attachment 1 of this Agreement without amending this Agreement.
The Recipient will identify agreements governing the construction, operation, and maintenance of the Project in the PMP. If requested by FRA, the Recipient will provide FRA the final, executed copies of any agreements within ten business days of the request.
The PMP will be consistent with the FRA Guidance on Development and Implementation of Railroad Capital Projects (Railroad Capital Projects Guidance) and 49 U.S.C. ß 22903, as applicable. 888
8 Subtask 1.3: Project Closeout
The Recipient will submit a Final Performance Report as required by Section 7.2 of Attachment 1 of this Agreement, which should describe the cumulative activities of the Project, including a complete description of the Recipient’s achievements with respect to the Project objectives and milestones.
Task 1 Deliverables:
Deliverable ID Subtask Deliverable Name
1.1 1.2 Project Management Plan
1.2 1.3 Final Performance Report
Task 2: Environmental Documentation
Subtask 2.1: Draft and Final NEPA Document
The Recipient will complete environmental clearance documentation for the Project. The determination of the appropriate class of action and/or level of documentation and the Project’s environmental impact will be made by FRA. If the Recipient concludes that the Project might qualify for a Categorical Exclusion (CE) in accordance with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), other environmental statutes, related regulatory requirements, and FRA’s NEPA implementing regulations (23 CFR part 771, Environmental Impact and Related Procedures), the Recipient will complete the FRA CE worksheet including providing the current project description, appropriate project maps, and any other relevant background information and submit it to assist FRA in making a class of action and/or level of documentation determination. The Recipient will evaluate the Project with the use of qualified environmental professionals to determine its impact, including conducting a review of existing literature, contacting relevant agencies, and performing field reconnaissance.
If FRA determines the appropriate class of action is a CE, the Recipient will complete any additional studies and documentation for the FRA CE in accordance with applicable law. The Recipient will then document the findings and submit the CE worksheet with supporting documentation for FRA review and approval.
If FRA does not concur that a CE is appropriate for this Project, FRA will prepare an Environmental Assessment (EA) in accordance with NEPA, other environmental statutes, related regulatory requirements, and FRA’s NEPA implementing regulations (23 CFR part 771, Environmental Impact and Related Procedures). To facilitate FRA’s preparation of the EA, the Recipient will complete needed studies to evaluate potential effects of the action, and if determined appropriate in consultation with FRA, develop a public involvement plan. The Recipient will prepare and submit an EA to FRA for review 889
9 and approval. If, through the EA process, FRA confirms that no significant impacts are anticipated, the Recipient will prepare a Finding of No Significant Impact (FONSI) and submit it to the FRA for review and approval.
If there is an indication of potential for significant impact that cannot be mitigated and FRA determines that an Environmental Impact Statement (EIS) is required, the Recipient, in consultation with FRA, will develop a scope, schedule, and budget for the preparation of an EIS as well as additional public outreach activities.
The Recipient is responsible for identifying all necessary permits required for the Project’s implementation.
Task 2 Deliverables:
Deliverable ID Subtask Deliverable Name
2.1 2.1 Draft and Final NEPA Document
Task 3: Preliminary Engineering and Final Design
Subtask 3.1 Pre-design activities
The Recipient will prepare and submit the following documents to FRA for acceptance before commencing work on the Preliminary Engineering Design.
• A Basis of Design that documents Roadway, Railroad, and other design standards used for all elements of the Project. The Basis of Design shall also include all assumptions, rationale, and considerations used for calculations and decisions required during subsequent engineering design.
Subtask 3.2: Preliminary Engineering
The Recipient will complete Preliminary Engineering for FRA review and approval, consistent with the FRA-approved NEPA document. Preliminary Engineering will include all design development and documentation to demonstrate the effectiveness, feasibility, and readiness of the project. • Preliminary Engineering Plans must include at a minimum:
o A title sheet; an index identifying various plan sheets comprising the drawing set; notation of design criteria referenced; and a legend of symbols and abbreviations. o A cover sheet signed by all stakeholders impacted by the proposed project. o Drawings prepared at an appropriate scale with the following information:
▪ Survey and base mapping with topography.
▪ Pertinent water surface elevations.
890
10 ▪ Existing and proposed right-of-way limits.
▪ Property lines showing existing and proposed ownership of the roadway and railroad. ▪ Any temporary or permanent easement required for construction. ▪ Existing and proposed utility relocations.
▪ Limits of disturbance (must be within the approved NEPA limits of disturbance/area of potential effects).
▪ Passenger platforms, stations, vertical circulation, or other structures in the area with dimensions from track centers.
▪ Existing and proposed railroad horizontal and vertical alignments with geometry data. ▪ Existing and proposed vertical and horizontal geometry of the proposed roadway. ▪ Detail and extent of any retaining wall needed for the project. ▪ Proposed track changes, including removals and installations. ▪ Typical roadway and bridge section.
▪ Access for the contractor and staging areas.
▪ Critical components such as rail centerlines, track centers, turnout sizes, and railway dimensions.
▪ Layout of the proposed bridge, including superstructure, substructure, abutments, wingwalls, and foundations\control house (movable section), riprap, and fender system. o Typical approach and bridge cross sections with the following information:
▪ Cross sections showing the proposed work to existing conditions and at other locations requiring easements, retaining walls, or right-of-way acquisitions, as needed. o Construction phasing and contractor access plans that include the following:
▪ Maintenance of roadway and rail traffic during construction. ▪ Any roadway detour or railroad shoofly needed for construction. ▪ Proposed construction access, staging, and storage areas. • Utility Coordination Plan identifying utility type, size, and owners in the area for which conflicts may occur and suggested utility relocation in case of conflict and approval of relocation by the utility owners. This includes all aerial and underground utilities affected by the construction. • Geotechnical Report with investigation data and recommendations for type of support structures based on borings at proposed bridge support locations. • Risk Register showing risks, risk owner, and mitigation strategies. • A Preliminary Engineering Cost Estimate with detailed and itemized project costs, including any contingency to capture risks and separate itemized Force Account Work required by the railroad or the roadway owner, based upon FRA line items. Use FRA Capital Cost Estimating Guidance, available at the following link: Capital Cost Estimating Guidance (Final) | FRA (dot.gov) The Recipient will not proceed to Final Design until NEPA is complete and both NEPA and Preliminary Engineering are approved by FRA.
891
11 Subtask 3.3: Final Design and Right-of-Way Engineering The Recipient will submit a Final Design Package to FRA for review and acceptance. The Final Design Package will advance the approved Preliminary Engineering design and will include Final Design Plans, updated cost estimates based on Final Design quantities, and schedules. The Recipient will be responsible for ensuring the future proposed project is constructed in accordance with the FRAapproved NEPA document. In addition, the Final Design package shall include right of way map and parcel maps or other details required for property acquisition.
Task 3 Deliverables:
Deliverable ID [Subtask] Deliverable Name
3.1 3.1 Basis of Design Report
3.2 3.2 Preliminary Design documents
3.3 3.3 Final Design documents (including right of way
acquisition plans)
3.4 3.3 Stakeholder approvals including roadway owner
and Railroad
3.5 3.3 Copies of any local, state, or federal permits
obtained
Additional Task: None.
4.4 Implement Required Environmental Commitments
Environmental commitments for the Project may be identified in the FRA-approved NEPA document, as described in Task 2. As applicable, the Recipient will ensure the Project’s final design incorporates any required environmental commitments.
ARTICLE 5: AWARD DATES AND ESTIMATED PROJECT SCHEDULE
5.1 Award Dates
Budget Period End Date: 2/28/2030
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12 Period of Performance End Date: 2/28/2030
5.2 Estimated Project Schedule
Milestones associated with this Agreement are identified in Table 5-A: Estimated Project Schedule. The Recipient will complete these milestones to FRA’s satisfaction by the Schedule Date, subject to Article 5 of Attachment 1 of this Agreement. The Recipient will notify FRA in writing when it believes it has achieved the milestone.
Table 5-A: Estimated Project Schedule
Milestone Schedule Date
NEPA Completion 6/30/2029
Preliminary Engineering Completion 7/31/2029
Final Design Completion 8/31/2029
ARTICLE 6: AWARD AND PROJECT FINANCIAL INFORMATION
6.1 Award Amount
Agreement Federal Funds: $2,800,000
6.2 Federal Obligation Information
Federal Obligation Type: Single
6.3 Federal Authorization and Funding Source.
Authorizing Statute: Sections 22104 and 22305 of the Infrastructure Investment and Jobs Act, Public Law 117-58 (November 15, 2021); 49 U.S.C. ß 22909
Appropriation: Infrastructure Investment and Jobs Act, Division J, Title VIII (Public Law 117-58 (2021))
6.4 Funding Availability
Program funding that is obligated under this Agreement remains available until expended.
6.5 Approved Project Budget
The estimated total Project cost under this Agreement is $4,300,000.
FRA will contribute a maximum of 65.1 percent of the total Project cost, not to exceed the Agreement Federal Funds in Section 6.1 of this Attachment 2. FRA will fund the Project at the lesser amount of the Agreement Federal Funds or the FRA maximum contribution percentage of total Project costs.
The Recipient will contribute $1,500,000 in Agreement Non-Federal Funds. Recipient’s Agreement NonFederal Funds are comprised of $1,000,000 from the Riverside County Transportation Commission (RCTC) and $500,000 in Banning’s local Transportation Impact Fee (TIF) funding. 893
13 The Recipient will complete the Project to FRA’s satisfaction within the Approved Project Budget, subject to Article 5 of Attachment 1 of this Agreement.
Table 6-A: Approved Project Budget by Task
Task
# Task Title
Agreement
Federal
Funds
Agreement Non-Federal
Funds
Total
RCTC TIF
1 Project Administration
and Management $0 $50,000 $0 $50,000
2 Environmental
Documentation $800,000 $150,000 $0 $950,000
3 Preliminary
Engineering and Final
Design
$2,000,000 $800,000 $500,000 $3,300,000
Total $2,800,000 $1,500,000
Total
Project
Cost:
$4,300,000
Table 6-B: Approved Project Budget by Source
Funding Source Total Amount Percentage of Total
Project Cost
Federal Share $2,800,000 65.1%
Agreement Federal Funds $2,800,000 65.1%
FRA Grant Program $2,800,000 65.1%
Agreement Non-Federal Funds $1,500,000 34.9%
Riverside County Transportation
Commission (RCTC)
$1,000,000 23.3%
City of Banning Transportation Impact
Fees (TIF)
$500,000 11.6%
6.6 Pre-Award Costs
None.
894
14 Consistent with 2 C.F.R. part 200, costs incurred before the date of this Agreement are not allowable costs under this award. FRA will neither reimburse those costs under this award nor consider them as a non-Federal cost-sharing contribution to this award.
6.7 Phased Funding Agreement
Not applicable.
ARTICLE 7: PERFORMANCE MEASUREMENT INFORMATION
Table 7-A: Performance Measurement Table identifies the performance measures that this Project is expected to achieve. These performance measures will enable FRA to assess the Recipient’s progress in achieving grant program goals and objectives. The Recipient will report on these performance measures in accordance with the frequency and duration specified in Table 7-A.
Upon Project completion, the Recipient will submit reports comparing the actual Project performance of the new and or improved asset(s) against the pre-Project (baseline) performance and expected postProject performance as described in Table 7-A. The Recipient will submit the performance measures report to the Project Manager in accordance with Table 7-A.
Table 7-A: Performance Measurement Table
Goal Objective Performance Measure
Description of Measure Measurement Reporting
Goal
1 Complete
Project
planning,
approval, and
environmental
assessment
tasks to
advance
project to
construction
NEPA
Documents
Completion of FRA
accepted
environmental
clearance
documentation for
the project.
Documentation
includes the final
environmental review
document and the
environmental
clearance/decision
document.
Pre-Project (Baseline)
Performance as of:
1/1/2024
Frequency:
One time
Expected Post-Project
Performance:
Completion of FRA
accepted environmental
clearance/ decision
documentation
Duration:
During
Period of
Performance
Goal
2 Develop Plans,
Specifications,
and
Engineering
Estimates to
advance
project to
construction
Final Design
Completion of FRA
accepted Final Design
documents to
support future
procurement and
construction work
activities.
Pre-Project (Baseline)
Performance as of:
1/1/2024
Frequency:
One time
Expected Post-Project
Performance:
Completed 100%
Plans/Specs/Estimates –
Duration:
895
15 ready to proceed with
construction
During
Period of
Performance
ARTICLE 8: ENVIRONMENTAL COMPLIANCE
In accordance with the National Environmental Policy Act (NEPA; 42 U.S.C. ß 4321 et seq.), other environmental statutes, related regulatory requirements, and FRA’s NEPA-implementing regulations (23 C.F.R. part 771), FRA has determined that the actions funded under this Agreement as described in this Attachment 2, Section 4.5, Tasks 1-3, are categorically excluded from detailed environmental review pursuant to 23 C.F.R. ß 771.116 (c) (1) and (3). In accordance with Section 106 of the National Historic Preservation Act (54 U.S.C. ß 306108; 36 C.F.R. part 800), FRA has also determined that the actions funded under this Agreement have no potential to cause effects to historic properties. The actions do not require the use of property protected by Section 4(f) of the Department of Transportation Act (49 U.S.C. ß 303; 23 C.F.R. part 774).
Categorical exclusions (CEs) are actions identified in an agency’s NEPA-implementing procedures that do not normally have a significant impact on the environment and therefore do not require either an environmental assessment (EA) or environmental impact statement (EIS). See 40 C.F.R. ß 1508.1(d). In analyzing the applicability of a CE, FRA also considered whether unusual circumstances are present that would warrant a more detailed environmental review through the preparation of an EA or EIS. In accordance with 23 C.F.R. ß 771.116 (a) and (b), FRA has further concluded that no unusual circumstances exist with respect to development of the activities funded under this grant that might trigger the need for a more detailed environmental review.
Should conditions or the scope of the action change, the Recipient must notify FRA and receive written response and notice to proceed before proceeding. FRA will evaluate whether this determination remains applicable or if additional environmental review is necessary.
ARTICLE 9: CLIMATE CHANGE AND ENVIRONMENTAL JUSTICE IMPACTS
9.1 Consideration of Climate Change and Environmental Justice Impacts This Section identifies how the Project addresses climate change and environmental justice priorities.
The Recipient certifies that rows marked with “X” in the following table are accurate:
X The Project directly supports a Local/Regional/State Climate Action Plan that results in lower greenhouse gas emissions. (Identify the plan in the supporting narrative below.) The Project directly supports a Local/Regional/State Equitable Development Plan that results in lower greenhouse gas emissions. (Identify the plan in the supporting narrative below.)
896
16 The Project directly supports a Local/Regional/State Energy Baseline Study that results in lower greenhouse gas emissions. (Identify the plan in the supporting narrative below.) X
The Recipient or a Project partner used environmental justice tools, such as the EJSCREEN, to minimize adverse impacts of the Project on environmental justice communities. (Identify the tool(s) in the supporting narrative below.)
X The Project supports a modal shift in freight or passenger movement to reduce emissions or reduce induced travel demand. (Describe that shift in the supporting narrative below.) The Project utilizes demand management strategies to reduce congestion, induced travel demand, and greenhouse gas emissions. (Describe those strategies in the supporting narrative below.)
The Project incorporates electrification infrastructure, zero-emission vehicle infrastructure, or both. (Describe the incorporated infrastructure in the supporting narrative below.) The Project supports the installation of electric vehicle charging stations. (Describe that support in the supporting narrative below.)
The Project promotes energy efficiency. (Describe how in the supporting narrative below.) The Project serves the renewable energy supply chain. (Describe how in the supporting narrative below.)
X The Project improves disaster preparedness and resiliency. (Describe how in the supporting narrative below.)
The Project avoids adverse environmental impacts to air or water quality, wetlands, and endangered species, such as through reduction in Clean Air Act criteria pollutants and greenhouse gases, improved stormwater management, or improved habitat connectivity. (Describe how in the supporting narrative below.)
The Project repairs existing dilapidated or idle infrastructure that is currently causing environmental harm. (Describe that infrastructure in the supporting narrative below.) The Project supports or incorporates the construction of energy- and location-efficient buildings. (Describe how in the supporting narrative below.) The Project includes recycling of materials, use of materials known to reduce or reverse carbon emissions, or both. (Describe the materials in the supporting narrative below.) The Project includes other actions or attributes that address climate change and environmental justice. (Describe those actions in the supporting narrative below.) 897
17 The Project does not include actions or attributes that address climate change and environmental justice but, before beginning construction of the Project, the Recipient will take relevant actions described below to address climate change and environmental justice impacts of the Project. (Identify the relevant actions in the supporting narrative below.)
9.2 Supporting Narrative
This project directly supports local, regional, and state climate action plans that prioritize lowering greenhouse gas emissions including the State of California Climate Change Scoping Plan, the County of Riverside Climate Action Plan (2019), the Western Riverside Council of Governments Subregional Climate Action Plan, and 2019 and 2020 executive orders signed by California Governor Gavin Newsom that called for action to reverse the trend of increased fuel consumption and reduce greenhouse gas emissions associated with the transportation sector. This project is a response to significant growth and corresponding greenhouse gas emissions that would result, should proactive transportation infrastructure changes not be made. The project supports a modal shift in both freight and passenger movement, which will reduce greenhouse gas emissions through demand management strategies to reduce traffic congestion. The project will help address environmental concerns by mitigating traffic congestion, improving traffic flow, and adding non-motorized transportation infrastructure in the vicinity of the Hargrave Street at-grade crossing. The project will reduce vehicle idling, thus reducing congestion-related emissions in three important ways:
1) Travel Mode Shift. The construction project will include sidewalks and bicycle infrastructure to divert motor vehicle traffic to active transportation modes for short trips. The project will allow for safer routes for pedestrians, those with disabilities, and bicyclists to walk or bike to school, work, or shop and negate the need for fuel-burning vehicles.
2) Reduced Congestion. The separation of the railway from the street will expedite traffic flow, result in fewer traffic accidents due to congestion, traffic delays, and engine idling, both in the project location as well as along the interstate. Congestion along Interstate 10, Hargrave Street, and surrounding roadways will be reduced as train-related delays will no longer be an issue. 3) Improved Traffic Flow. Improved levels of service and Interstate-10/Hargrave Street interchange improvements will improve traffic flow. A recent Traffic Impact Analysis conducted in 2019 evaluated the system deficiencies and found that the Hargrave Street and I-10 interchanges operate at unacceptable Levels of Service (E or worse). Separating train traffic from vehicle traffic will remove backups from this location, improving traffic flow and reducing the number of cars waiting for trains to pass. As Interstate 10 is a significant truck route, reducing heavy truck idling will be an important benefit.
This project improves disaster preparedness and resiliency by reducing traffic congestion due to train crossings to drastically improve connectivity and mobility within Banning, the Interstate 10 interchange, and the region. This is very important for both emergency response and potential evacuations in this disadvantaged community that faces Very High and Relatively High risks of wildfire and earthquakes respectively, and to protect from potential annual monetary losses of over $1.3 million due to natural hazards (FEMA National Risk Index). Currently there is one fire station, located north of Interstate 10, 898
18 with two fire engines staffed for emergency response in Banning. The Fire Department provides the full range of emergency response capabilities to the city, including fire suppression, medical response (paramedic capability), HazMat response, and rescue. First responders face critical challenges with traffic backups and gridlock when at-grade train crossings limit circulation or stopped trains block crossings. Roadway–rail grade crossings lead to significant travel delays for emergency responders trying to reach an incident, especially in the southern portion of the city. The grade separation project will remove this barrier, allowing for improved access to these essential services, along with faster possible response times for all emergency responders.
The project directly supports regional and state equitable development plans including the California General Plan Equitable & Resilient Communities and the Strategic Health Alliance Pursuing Equity (SHAPE) Riverside County. SHAPE identifies four priority areas, all of which are supported by this project:
Creation of Healthy Communities, Promoting Healthy Behaviors, Connecting and Investing in People, and Improving Access to Care. The Recipient has utilized EJSCREEN as a method to identify environmental justice communities in order to focus public outreach and gain resident feedback to ensure the Recipient takes the necessary actions to minimize the adverse impacts of the project’s implementation and maximize benefits for the underserved members of these communities. EJSCREEN identifies the community in the 3.14 square mile area surrounding the project as having higher percentages of people of color (81%), low income (58%), linguistically isolated (14%), and persons with less than a high school education (30%), all of which are greater than both state and national averages.
Public outreach will include bilingual materials to ensure the greatest reach.
ARTICLE 10: RACIAL EQUITY AND BARRIERS TO OPPORTUNITY
10.1 Efforts to Improve Racial Equity and Reduce Barriers to Opportunity This Section identifies how the Project addresses efforts to improve racial equity and reduce barriers to opportunity. The Recipient certifies that rows marked with “X” in the following table are accurate:
A racial equity impact analysis has been completed for the Project. (Identify a report on that analysis or, if no report was produced, describe the analysis and its results in the supporting narrative below.)
The Recipient or a Project partner has adopted an equity and inclusion program/plan or has otherwise instituted equity-focused policies related to project procurement, material sourcing, construction, inspection, hiring, or other activities designed to ensure racial equity in the overall delivery and implementation of the Project. (Identify the relevant programs, plans, or policies in the supporting narrative below.)
899
19 X
The Project includes physical-barrier-mitigating land bridges, caps, lids, linear parks, and multimodal mobility investments that either redress past barriers to opportunity or that proactively create new connections and opportunities for underserved communities that are underserved by transportation. (Identify the relevant investments in the supporting narrative below.) See Multimodal Mobility Investments paragraph in the supporting narrative below.
X
The Project includes new or improved walking, biking, and rolling access for individuals with disabilities, especially access that reverses the disproportional impacts of crashes on people of color and mitigates neighborhood bifurcation. (Identify the new or improved access in the supporting narrative below.) See Reversal of Crash Impacts and Mitigation of Neighborhood Bifurcation paragraph in the supporting narrative below.
X
The Project includes new or improved freight access to underserved communities to increase access to goods and job opportunities for those underserved communities. (Identify the new or improved access in the supporting narrative below.) See Increased Job Opportunities paragraph in the supporting narrative below.
The Recipient has taken other actions related to the Project to improve racial equity and reduce barriers to opportunity. (Describe those actions in the supporting narrative below.) The Recipient has not yet taken actions related to the Project to improve racial equity and reduce barriers to opportunity but, before beginning construction of the Project, the Recipient will take relevant actions described below to improve racial equity and reduce barriers to opportunity. (Identify the relevant actions in the supporting narrative below.)
10.2 Supporting Narrative
The proposed project will improve equity, mitigate barriers to opportunity, and improve quality of life in Banning by improving and expanding transportation options through developing multimodal transportation facilities; mitigating safety risks to reverse the impacts of crashes on underserved populations; and supporting economic development to improve access to job opportunities.
Multimodal Mobility Investments: This project includes multimodal mobility investments, including ADA compliant sidewalks and bicycle lanes where none currently exist. The project location is an older, poverty-stricken, residential neighborhood comprised of modest and aging homes. The mostly Hispanic population is often characterized as “working poor,” with approximately 76% of students attending area schools eligible for Free and Reduced-Price Lunch based on income. Low-income, minority and new immigrant communities (such as Banning) are especially vulnerable to transportation insecurity because they are less likely to own vehicles. As such, these residents are dependent on walking or biking to get to a job, doctor’s office, store, or school. By creating ADA compliant sidewalks and bicycle lanes, this project will directly impact residents who must walk or bike, and provide connectivity to destinations throughout the city, improving safety and quality of life for those of all abilities. The grade separation will allow for improved transportation options by removing pedestrian/bicycle hazards at the Hargrave 900
20 Street/UPRR railroad crossing. Instead of walking/biking along or across the rail line and road edge, pedestrians, individuals with disabilities, and bicyclists will now have access to sidewalks and bike lanes completely removed from the rail line. Furthermore, the Recipient operates two fixed route bus routes that cross over the UPRR crossing at Hargrave Street ten times each day. These buses are delayed every time they must wait for a train, hindering scheduled pick-ups and drop-offs. These delays increase transportation insecurity and leave transit riders at risk of suffering the critical repercussions of arriving late to work, school, or appointments.
Reversal of Crash Impacts and Mitigation of Neighborhood Bifurcation: The Hargrave Street crossing has been the site of both vehicle-train collisions and pedestrian train collisions. Unfortunately, these collisions have resulted in pedestrian deaths. A study published in the American Journal of Preventive Medicine (https://www.ajpmonline.org/article/S0749-3797(22)00155-6/fulltext) found that minority populations disproportionately suffer the impact of traffic accidents, with Black Americans suffering the highest fatality rates per mile traveled and across all travel modes followed by Hispanics, Whites, and Asians. The study’s statistics were particularly bleak for individuals walking and cycling during evening hours. As EJSCREEN identified the project area as having high percentages of people of color (81%), this is an especially relevant statistic. Project infrastructure improvements will separate pedestrians and motor vehicles from rail traffic, eliminating contact points and drastically improving safety at this interchange and reversing the disproportionate impacts of crashes on people of color. Grade separation will also relieve train crossing-related traffic congestion, resulting in reduced secondary accidents on surrounding city streets and the nearby interstate. Furthermore, grade separation will help breach the north/south separation that naturally occurs in Banning due to the railroad and I-10 intersecting the city. This separation is magnified by stalled trains and traffic congestion that hinder mobility and emergency response.
Increased Job Opportunities: Project improvements will expedite goods movement and circulation, supporting local private business developments and strengthening I-10 infrastructure, one of the nation’s busiest goods movement corridors. This project will increase job opportunities by supporting a future rail expansion project and numerous local developments that will bring more than 8,500 goodpaying jobs to this disadvantaged community. The Riverside County Transportation Commission (RCTC), Caltrans, and the FRA are working to expand passenger rail service across Southern California inclusive of the Inland Empire and the City of Banning. This Amtrak expansion project will connect approximately 144 miles on an existing rail corridor – the same rail that passes through Hargrave Street. Preliminary environmental, design, and service studies are under way for this project. Additionally, the City of Banning is included in planning studies as a potential future station area due to its location along the preferred route midway between Coachella Valley and Riverside Banning. Separating the existing railway at Hargrave from the street is critical for train traffic enhancement to occur. The project’s infrastructure investments directly support economic progress in Banning and in the rail industry. The project will advocate local hiring for all phases of planning, as well as future construction. Future rail expansion, with its additional train traffic and new station areas, will result in additional job opportunities within the rail industry and will support economic developments within Banning.
Furthermore, the rail expansion will diversify transportation options and give greater access to the growing community of Banning. This project is a crucial element in ensuring the success of future rail 901
21 projects and other business ventures in the city, including logistics and entertainment developments at the adjacent Banning Airport site.
ARTICLE 11: LABOR AND WORK
11.1 Efforts to Support Good-Paying Jobs and Strong Labor Standards This Section identifies the Recipient’s efforts to support good-paying jobs and strong labor standards related to the Project. The Recipient certifies that rows marked with “X” in the following table are accurate:
The Recipient or a Project partner has adopted the use of project labor agreements in the overall delivery and implementation of the Project. (Identify the relevant agreements and describe the scope of activities they cover in the supporting narrative below.) The Recipient or a Project partner has adopted the use of local and economic hiring preferences in the overall delivery and implementation of the Project, subject to all applicable State and local laws, policies, and procedures. (Describe the relevant provisions in the supporting narrative below.)
The Recipient or a Project partner has adopted the use of registered apprenticeships in the overall delivery and implementation of the Project. (Describe the use of registered apprenticeships in the supporting narrative below.)
The Recipient or a Project partner will provide training and placement programs for underrepresented workers in the overall delivery and implementation of the Project. (Describe the training programs in the supporting narrative below.) The Recipient or a Project partner will support free and fair choice to join a union in the overall delivery and implementation of the Project by investing in workforce development services offered by labor-management training partnerships or setting expectations for contractors to develop labor-management training programs. (Describe the workforce development services offered by labor-management training partnerships in the supporting narrative below.)
The Recipient or a Project partner will provide supportive services and cash assistance to address systemic barriers to employment to be able to participate and thrive in training and employment, including childcare, emergency cash assistance for items such as tools, work clothing, application fees and other costs of apprenticeship or required pre-employment training, transportation and travel to training and work sites, and services aimed at helping to retain underrepresented groups like mentoring, support groups, and peer networking. (Describe the supportive services and/or cash assistance provided to trainees and employees in the supporting narrative below.)
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22 The Recipient or a Project partner has documented agreements or ordinances in place to hire from certain workforce programs that serve underrepresented groups. (Identify the relevant agreements and describe the scope of activities they cover in the supporting narrative below.)
The Recipient or a Project partner participates in a State/Regional/Local comprehensive plan to promote equal opportunity, including removing barriers to hiring and preventing harassment on work sites, and that plan demonstrates action to create an inclusive environment with a commitment to equal opportunity, including:
a. affirmative efforts to remove barriers to equal employment opportunity above and beyond complying with Federal law;
b. proactive partnerships with the U.S. Department of Labor’s Office of Federal Contract Compliance Programs to promote compliance with EO 11246 Equal Employment Opportunity requirements;
c. no discriminatory use of criminal background screens and affirmative steps to recruit and include those with former justice involvement, in accordance with the Fair Chance Act and equal opportunity requirements; d. efforts to prevent harassment based on race, color, religion, sex, sexual orientation, gender identity, and national origin;
e. training on anti-harassment and third-party reporting procedures covering employees and contractors; and
f. maintaining robust anti-retaliation measures covering employees and contractors.
(Describe the equal opportunity plan in the supporting narrative below.) The Recipient has taken other actions related to the Project to create good-paying jobs with the free and fair choice to join a union and incorporate strong labor standards. (Describe those actions in the supporting narrative below.)
X
The Recipient has not yet taken actions related to the Project to create good-paying jobs with the free and fair choice to join a union and incorporate strong labor standards but, before beginning construction of the Project, will take the relevant actions described below. (Identify the relevant actions in the supporting narrative below.)
11.2 Supporting Narrative
The Recipient is an Equal Opportunity Employer that does not discriminate on the basis of race, color, national origin, sex, sexual orientation, religion, age, or disability in employment or the provision of services. The Recipient complies with the requirements of the Americans with Disabilities Act with respect to hiring and any other term of employment. This policy also extends to professional services consultants who will be engaged for this project. The Recipient will utilize competitive procurement processes (which align with both state and federal procurement requirements) to identify qualified consultants for all project activities. These consultants will be compensated with market value prevailing rates.
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904
Exhibits
Revision Date: December 11, 2023
905
Exhibits
Table of Contents
EXHIBIT A: APPLICABLE FEDERAL LAWS AND REGULATIONS .......................................................................... 3 GENERAL FEDERAL LEGISLATION ................................................................................................................ 3 EXECUTIVE ORDERS ..................................................................................................................................... 4 GENERAL FEDERAL REGULATIONS .............................................................................................................. 4 EXHIBIT B: ADDITIONAL STANDARD TERMS .................................................................................................... 6 EXHIBIT B.1: TITLE VI ASSURANCES ............................................................................................................. 7 EXHIBIT B.2: CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS -- PRIMARY COVERED TRANSACTIONS ..................................................................................... 16 EXHIBIT B.3: REQUIREMENTS REGARDING DELINQUENT TAX LIABILITY OR A FELONY CONVICTION UNDER ANY FEDERAL LAW........................................................................................................................ 20 EXHIBIT B.4: RECIPIENT POLICY TO BAN TEXT MESSAGING WHILE DRIVING........................................... 22 EXHIBIT B.5: EQUIVALENT LABOR PROTECTIONS UNDER 49 U.S.C. 22905(c)(2)(B)................................. 24 EXHIBIT C: QUARTERLY PROJECT PROGRESS REPORTS AND RECERTIFICATIONS ......................................... 33 906
3 EXHIBIT A: APPLICABLE FEDERAL LAWS AND REGULATIONS
By entering into this Agreement, the Recipient assures and certifies, with respect to this award, that it will comply with all applicable Federal laws, regulations, executive orders, policies, guidelines, and requirements as they relate to the application, acceptance, and use of Federal funds for this Project.
Performance under this Agreement shall be governed by and in compliance with the following requirements, as applicable, to the type of organization of the Recipient and any applicable subrecipients. The applicable provisions to this Agreement include, but are not limited to, the following:
GENERAL FEDERAL LEGISLATION
a. Davis-Bacon Act - 40 U.S.C. § 3141 et seq.
b. Federal Fair Labor Standards Act - 29 U.S.C. § 201 et seq. c. Hatch Act - 5 U.S.C. § 1501 et seq.
d. Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 - 42 U.S.C. § 4601 et seq.
e. National Historic Preservation Act of 1966 – Section 106 - 54 U.S.C. § 306108 f. Archeological and Historic Preservation Act of 1974 - 54 U.S.C. §§ 312501–312508 g. Native American Graves Protection and Repatriation Act - 25 U.S.C. § 3001 et seq. h. Clean Air Act, P.L. 90-148, as amended – 42 U.S.C. § 7401 et seq. i. Section 404 of the Clean Water Act, as amended - 33 U.S.C. § 1344 j. Section 7 of the Endangered Species Act, P.L. 93-205, as amended – 16 U.S.C. § 1536 k. Coastal Zone Management Act, P.L. 92-583, as amended – 16 U.S.C. § 1451 et seq. l. Flood Disaster Protection Act of 1973, Section 102(a) – 42 U.S.C. § 4012a m. Age Discrimination Act of 1975 - 42 U.S.C. § 6101 et seq. n. American Indian Religious Freedom Act, P.L. 95-341, as amended o. Sections 523 and 527 of the Public Health Service Act of 1912, as amended, 42 U.S.C. §§ 290dd through 290dd-2
p. Architectural Barriers Act of 1968 - 42 U.S.C. § 4151 et seq. q. Power Plant and Industrial Fuel Use Act of 1978, P.L. 100-42 - Section 403 - 42 U.S.C. § 8373 r. Contract Work Hours and Safety Standards Act - 40 U.S.C. § 3701 et seq. s. Copeland Anti-kickback Act, as amended - 18 U.S.C. § 874 and 40 U.S.C. § 3145 t. National Environmental Policy Act of 1969 - 42 U.S.C. § 4321 et seq. u. Wild and Scenic Rivers Act, P.L. 90-542, as amended – 16 U.S.C. § 1271 et seq. v. Federal Water Pollution Control Act, as amended - 33 U.S.C. §§1251–1376 w. Single Audit Act of 1984 - 31 U.S.C. § 7501 et seq.
x. Americans with Disabilities Act of 1990 - 42 U.S.C. § 12101 et seq. y. Title IX of the Education Amendments of 1972, as amended - 20 U.S.C. §§ 1681–1683 and §§ 1685–1687
z. Section 504 of the Rehabilitation Act of 1973, as amended - 29 U.S.C. § 794 aa. Title VI of the Civil Rights Act of 1964 - 42 U.S.C. § 2000d et seq. bb. Limitation on Use of Appropriated Funds to Influence Certain Federal Contracting and Financial Transactions – 31 U.S.C. § 1352
cc. Freedom of Information Act - 5 U.S.C. § 552, as amended dd. Magnuson-Stevens Fishery Conservation and Management Act – 16 U.S.C. § 1801 et seq. ee. Farmland Protection Policy Act of 1981 – 7 U.S.C. § 4201 et seq. ff. Noise Control Act of 1972 – 42 U.S.C. § 4901 et seq. gg. Fish and Wildlife Coordination Act of 1956 – 16 U.S.C. § 661 et seq. 907
4 hh. Section 9 of the Rivers and Harbors Act and the General Bridge Act of 1946 - 33 U.S.C. §§ 401 and 525
ii. Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. 303 jj. Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended – 42 U.S.C. §§ 9601–9657
kk. Safe Drinking Water Act – 42 U.S.C. §§ 300f to 300j-26 ll. The Wilderness Act – 16 U.S.C. §§ 1131–1136
mm. Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 – 42 U.S.C. § 6901 et seq.
nn. Migratory Bird Treaty Act 16 U.S.C. § 703 et seq.
oo. The Federal Funding Transparency and Accountability Act of 2006, as amended (Pub. L. 109–282, as amended by section 6202 of Public Law 110–252)
pp. Cargo Preference Act of 1954 – 46 U.S.C. § 55305
qq. Section 889 of the John D. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. 115-232
rr. Efficient Environmental Reviews - 23 U.S.C. § 139
ss. Grant Conditions – 49 U.S.C. § 22905
tt. Build America, Buy America Act – Pub. L. No. 117-58, div. G, tit. IX, subtit. A, 135 Stat. 429, 1298
EXECUTIVE ORDERS
a. Executive Order 11246 – Equal Employment Opportunity b. Executive Order 11990 – Protection of Wetlands
c. Executive Order 11988 – Floodplain Management
d. Executive Order 12372 – Intergovernmental Review of Federal Programs e. Executive Order 12549 – Debarment and Suspension
f. Executive Order 12898 – Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations
g. Executive Order 13166 – Improving Access to Services for Persons With Limited English Proficiency
h. Executive Order 13985 – Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
i. Executive Order 14005 – Ensuring the Future is Made in All of America by All of America’s Workers
j. Executive Order 14008 – Tackling the Climate Crisis at Home and Abroad
GENERAL FEDERAL REGULATIONS
a. Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards – 2 C.F.R. Parts 200, 1201
b. Non-procurement Suspension and Debarment – 2 C.F.R. Parts 180, 1200 c. Investigative and Enforcement Procedures – 14 C.F.R. Part 13 d. Procedures for predetermination of wage rates – 29 C.F.R. Part 1 e. Contractors and subcontractors on public building or public work financed in whole or part by loans or grants from the United States – 29 C.F.R. Part 3 f. Labor standards provisions applicable to contracts governing federally financed and assisted construction (also labor standards provisions applicable to non-construction contracts subject to the Contract Work Hours and Safety Standards Act) – 29 C.F.R. Part 5 g. Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department 908
5 of Labor (Federal and federally assisted contracting requirements) – 41 C.F.R. Parts 60 et seq. h. New Restrictions on Lobbying – 49 C.F.R. Part 20
i. Nondiscrimination in Federally Assisted Programs of the Department of Transportation – Effectuation of Title VI of the Civil Rights Act of 1964 – 49 C.F.R. Part 21 j. Uniform relocation assistance and real property acquisition for Federal and Federally assisted programs – 49 C.F.R. Part 24
k. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance – 49 C.F.R. Part 25
l. Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance – 49 C.F.R. Part 27
m. DOT’s implementation of DOJ’s ADA Title II regulations compliance procedures for all programs, services, and regulatory activities relating to transportation under 28 C.F.R. Part 35 n. Enforcement of Nondiscrimination on the Basis of Handicap in Programs or Activities Conducted by the Department of Transportation – 49 C.F.R. Part 28 o. Denial of public works contracts to suppliers of goods and services of countries that deny procurement market access to U.S. contractors – 49 C.F.R. Part 30 p. Governmentwide Requirements for Drug-Free Workplace (Financial Assistance) – 49 C.F.R. Part 32 q. DOT’s implementing ADA regulations for transit services and transit vehicles, including the DOT’s standards for accessible transportation facilities in Part 37, Appendix A – 49 C.F.R. Parts 37 and 38
r. Environmental Impact and Related Procedures – 23 C.F.R. Part 771 s. Procedures Implementing Section 4(f) of the Department of Transportation Act – 23 C.F.R. Part 774
Specific assurances required to be included in the Agreement by any of the above laws, regulations, or circulars are hereby incorporated by reference into this Agreement. 909
6 EXHIBIT B: ADDITIONAL STANDARD TERMS
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7 EXHIBIT B.1: TITLE VI ASSURANCES
TITLE VI ASSURANCE
Implementing Title VI of the Civil Rights Act of 1964, as amended
ASSURANCE CONCERNING NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS AND
ACTIVITIES RECEIVING OR BENEFITING FROM FEDERAL FINANCIAL ASSISTANCE (Implementing the Rehabilitation Act of 1973, as amended, and the Americans With Disabilities Act, as amended)
49 C.F.R. Parts 21, 25, 27, 37 and 38
The United States Department of Transportation (USDOT)
Standard Title VI/Non-Discrimination Assurances
DOT Order No. 1050.2A
By signing and submitting the Application and by entering into this Agreement, the Recipient HEREBY AGREES THAT, as a condition to receiving Federal financial assistance from the Federal Railroad Administration (FRA), it is subject to and will comply with the following:
Statutory/Regulatory Authorities
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); • 49 C.F.R. Part 21 (entitled Non-discrimination In Federally-Assisted Programs Of The Department Of Transportation—Effectuation Of Title VI Of The Civil Rights Act Of 1964); • 28 C.F.R. section 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964);
The preceding statutory and regulatory cites hereinafter are referred to as the “Acts” and “Regulations,” respectively.
General Assurances
In accordance with the Acts, the Regulations, and other pertinent directives, circulars, policy, memoranda, and/or guidance, the Recipient hereby gives assurance that it will promptly take any measures necessary to ensure that:
“No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity,” for which the Recipient receives Federal financial assistance from DOT, including FRA.
911
8 The Civil Rights Restoration Act of 1987 clarified the original intent of Congress, with respect to Title VI and other Non-discrimination requirements (The Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973), by restoring the broad, institutional-wide scope and coverage of these nondiscrimination statutes and requirements to include all programs and activities of the Recipient, so long as any portion of the program is Federally assisted.
Specific Assurances
More specifically, and without limiting the above general Assurance, the Recipient agrees with and gives the following Assurances with respect to its Federally assisted program:
1. The Recipient agrees that each “activity,” “facility,” or “program,” as defined in §§ 21.23 (b) and
21.23 (e) of 49 C.F.R. § 21 will be (with regard to an “activity”) facilitated, or will be (with regard to a “facility”) operated, or will be (with regard to a “program”) conducted in compliance with all requirements imposed by, or pursuant to the Acts and the Regulations.
2. The Recipient will insert the following notification in all solicitations for bids, Requests For Proposals for work, or material subject to the Acts and the Regulations made in connection with the Grant and, in adapted form, in all proposals for negotiated agreements regardless of funding source:
“The Recipient, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that for any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award.”
3. The Recipient will insert the clauses of Appendix A and E of this Assurance in every contract or agreement subject to the Acts and the Regulations.
4. The Recipient will insert the clauses of Appendix B of this Assurance, as a covenant running with the land, in any deed from the United States effecting or recording a transfer of real property, structures, use, or improvements thereon or interest therein to a Recipient.
5. That where the Recipient receives Federal financial assistance to construct a facility, or part of a facility, the Assurance will extend to the entire facility and facilities operated in connection therewith.
6. That where the Recipient receives Federal financial assistance in the form, or for the acquisition of real property or an interest in real property, the Assurance will extend to rights to space on, over, or under such property.
7. That the Recipient will include the clauses set forth in Appendix C and Appendix D of this Assurance, as a covenant running with the land, in any future deeds, leases, licenses, permits, or similar instruments entered into by the Recipient with other parties:
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9 a. for the subsequent transfer of real property acquired or improved under the applicable activity, project, or program; and
b. for the construction or use of, or access to, space on, over, or under real property acquired or improved under the applicable activity, project, or program.
8. That this Assurance obligates the Recipient for the period during which Federal financial assistance is extended to the program, except where the Federal financial assistance is to provide, or is in the form of, personal property, or real property, or interest therein, or structures or improvements thereon, in which case the Assurance obligates the Recipient, or any transferee for the longer of the following periods:
a. the period during which the property is used for a purpose for which the Federal financial assistance is extended, or for another purpose involving the provision of similar services or benefits; or
b. the period during which the Recipient retains ownership or possession of the property.
9. The Recipient will provide for such methods of administration for the program as are found by the Secretary of Transportation or the official to whom he/she delegates specific authority to give reasonable guarantee that it, other recipients, sub-recipients, contractors, subcontractors, consultants, transferees, successors in interest, and other participants of Federal financial assistance under such program will comply with all requirements imposed or pursuant to the Acts, the Regulations, and this Assurance.
10. The Recipient agrees that the United States has a right to seek judicial enforcement with regard to any matter arising under the Acts, the Regulations, and this Assurance.
By signing this ASSURANCE, the Recipient also agrees to comply (and require any sub-recipients, contractors, successors, transferees, and/or assignees to comply) with all applicable provisions governing FRA’s access to records, accounts, documents, information, facilities, and staff. You also recognize that you must comply with any program or compliance reviews, and/or complaint investigations conducted by FRA. You must keep records, reports, and submit the material for review upon request to FRA, or its designee in a timely, complete, and accurate way. Additionally, you must comply with all other reporting, data collection, and evaluation requirements, as prescribed by law or detailed in program guidance.
The Recipient gives this ASSURANCE in consideration of and for obtaining any Federal grants, loans, contracts, agreements, property, and/or discounts, or other Federal-aid and Federal financial assistance extended after the date hereof to the recipients by the FRA under this Agreement. This ASSURANCE is binding on the Recipient, other recipients, sub-recipients, contractors, subcontractors and their subcontractors’, transferees, successors in interest, and any other participants in the program or project funded under this Agreement.
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10 APPENDIX A
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “contractor”) agrees as follows:
1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts and the Regulations relative to Non-discrimination in Federally assisted programs of the U.S. Department of Transportation, Federal Railroad Administration (FRA), as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract.
2. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 C.F.R. Part 21.
3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor’s obligations under this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, or national origin.
4. Information and Reports: The contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Recipient or FRA to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to the Recipient or FRA, as appropriate, and will set forth what efforts it has made to obtain the information.
5. Sanctions for Noncompliance: In the event of a contractor’s noncompliance with the Nondiscrimination provisions of this contract, the Recipient will impose such contract sanctions as it or FRA may determine to be appropriate, including, but not limited to:
a. withholding payments to the contractor under the contract until the contractor complies; and/or
b. cancelling, terminating, or suspending a contract, in whole or in part.
6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the Recipient or FRA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the 914
11 contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States. 915
12 APPENDIX B
CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY
The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Specific Assurance 4:
NOW, THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the Recipient will accept title to the lands and maintain the project constructed thereon in accordance with the Infrastructure Investment and Jobs Act, Pub. L. No. 117-58 (Nov. 15, 2021), 23 U.S.C. § 117 and the policies and procedures prescribed by the Federal Railroad Administration (FRA) of the U.S.
Department of Transportation in accordance and in compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the Recipient all the right, title and interest of the U.S. Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof.
(HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto Recipient and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding on the Recipient, its successors and assigns.
The Recipient, in consideration of the conveyance of said lands and interests in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person will on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the Recipient will use the lands and interests in lands and interests in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended[, and (3) that in the event of breach of any of the above-mentioned non-discrimination conditions, the Department will have a right to enter or re-enter said lands and facilities on said land, and that above described land and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].*
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to make clear the purpose of Title VI.) 916
13 APPENDIX C
CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE ACTIVITY,
FACILITY, OR PROGRAM
The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the Recipient pursuant to the provisions of Specific Assurance 7(a):
A. The (Recipient, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add “as a covenant running with the land”] that:
1. In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S. Department of Transportation activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the (Recipient, licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all requirements imposed by the Acts and Regulations (as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities.
B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Nondiscrimination covenants, Recipient will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never been made or issued.* C. With respect to a deed, in the event of breach of any of the above Non-discrimination covenants, the Recipient will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities will there upon revert to and vest in and become the absolute property of the Recipient and its assigns.*
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.)
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14 APPENDIX D
CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE ACTIVITY,
FACILITY OR PROGRAM
The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by Recipient pursuant to the provisions of Specific Assurance 7(b):
A. The (Recipient, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, “as a covenant running with the land”) that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishing of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the (Recipient, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations, as amended, set forth in this Assurance.
B. With respect to (licenses, leases, permits, etc.), in the event of breach of any of the above Nondiscrimination covenants, Recipient will have the right to terminate the (license, permit, etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.* C. With respect to deeds, in the event of breach of any of the above Non-discrimination covenants, Recipient will there upon revert to and vest in and become the absolute property of Recipient and its assigns.*
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.)
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15 APPENDIX E
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “contractor”) agrees to comply with the following non-discrimination statutes and authorities; including but not limited to:
Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 C.F.R. Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); • Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex);
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 C.F.R. Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations at 49 C.F.R. Parts 37 and 38; • The Federal Aviation Administration’s Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures nondiscrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed.
Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. § 1681 et seq).
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16 EXHIBIT B.2: CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY
MATTERS -- PRIMARY COVERED TRANSACTIONS
2 C.F.R. Parts 180 and 1200
These assurances and certifications are applicable to all Federal-aid construction contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, consultant contracts or any other covered transaction requiring FRA approval or that is estimated to cost $25,000 or more—as defined in 2 C.F.R. Parts 180 and 1200.
By signing and submitting the Application and by entering into this Agreement, the Recipient is providing the assurances and certifications for First Tier Participants and Lower Tier Participants, as set out below.
1. Instructions for Certification – First Tier Participants:
a. The prospective first tier participant is providing the certification set out below. b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective first tier participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency’s determination whether to enter into this transaction. However, failure of the prospective first tier participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. c. The certification in this clause is a material representation of fact upon which reliance was placed when the contracting agency determined to enter into this transaction. If it is later determined that the prospective participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the contracting agency may terminate this transaction for cause of default.
d. The prospective first tier participant shall provide immediate written notice to the contracting agency to whom this proposal is submitted if any time the prospective first tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
e. The terms “covered transaction,” “civil judgment,” “debarred,” “suspended,” “ineligible,” “participant,” “person,” “principal,” and “voluntarily excluded,” as used in this clause, are defined in 2 C.F.R. Parts 180 and 1200. “First Tier Covered Transactions” refers to any covered transaction between a Recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a Recipient or subrecipient of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers to any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).
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17 f. The prospective first tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction.
g. The prospective first tier participant further agrees by submitting this proposal that it will include the clause titled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary ExclusionLower Tier Covered Transactions,” provided by the department or contracting agency, entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. h. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website (https://www.sam.gov/), which is compiled by the General Services Administration.
i. Nothing contained in the foregoing shall be construed to require the establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of the prospective participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. j. Except for transactions authorized under paragraph (f) of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.
Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – First Tier Participants:
a. The prospective first tier participant certifies to the best of its knowledge and belief, that it and its principals:
(1) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency;
(2) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment, including a civil settlement, rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust 921
18 statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (3) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (a)(2) of this certification; and
(4) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. b. Where the prospective participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.
2. Instructions for Certification - Lower Tier Participants:
(Applicable to all subcontracts, purchase orders and other lower tier transactions requiring prior FRA approval or estimated to cost $25,000 or more - 2 C.F.R. Parts 180 and 1200) a. The prospective lower tier participant is providing the certification set out below. b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. c. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. d. The terms “covered transaction,” “civil settlement,” “debarred,” “suspended,” “ineligible,” “participant,” “person,” “principal,” and “voluntarily excluded,” as used in this clause, are defined in 2 C.F.R. Parts 180 and 1200. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. “First Tier Covered Transactions” refers to any covered transaction between a Recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a Recipient or subrecipient of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).
e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated.
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19 f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction,” without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website (https://www.sam.gov/), which is compiled by the General Services Administration.
h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
i. Except for transactions authorized under paragraph e of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -- Lower Tier Participants:
1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency.
2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. 923
20 EXHIBIT B.3: REQUIREMENTS REGARDING DELINQUENT TAX LIABILITY OR A FELONY CONVICTION
UNDER ANY FEDERAL LAW
As required by sections 744 and 745 of Title VII, Division E of the Consolidated Appropriations Act, 2022, Pub. L. No. 117-103 (Mar. 15, 2022), and implemented through USDOT Order 4200.6, the funds provided under this award shall not be used to enter into a contract, memorandum of understanding, or cooperative agreement with, make a grant to, or provide a loan or loan guarantee to, any corporation that:
(1) Has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, where the awarding agency is aware of the unpaid tax liability, unless a Federal agency has considered suspension or debarment of the corporation and made a determination that suspension or debarment is not necessary to protect the interests of the Government; or (2) Was convicted of a felony criminal violation under any Federal law within the preceding 24 months, where the awarding agency is aware of the conviction, unless a Federal agency has considered suspension or debarment of the corporation and made a determination that suspension or debarment is not necessary to protect the interests of the Government.
The Recipient therefore agrees:
1. Definitions. For the purposes of this exhibit, the following definitions apply:
“Covered Transaction” means a transaction that uses any funds under this award and that is a contract, memorandum of understanding, cooperative agreement, grant, loan, or loan guarantee. “Felony Conviction” means a conviction within the preceding 24 months of a felony criminal violation under any Federal law and includes conviction of an offense defined in a section of the United States Code that specifically classifies the offense as a felony and conviction of an offense that is classified as a felony under 18 U.S.C. 3559.
“Participant” means the Recipient, an entity who submits a proposal for a Covered Transaction, or an entity who enters into a Covered Transaction.
“Tax Delinquency” means an unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted, or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability.
2. Mandatory Check in the System for Award Management. Before entering a Covered Transaction with another entity, a Participant shall check the System for Award Management (the “SAM”) at http://www.sam.gov/ for an entry describing that entity.
3. Mandatory Certifications. Before entering a Covered Transaction with another entity, a Participant shall require that entity to:
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21 (1) Certify whether the entity has a Tax Delinquency; and (2) Certify whether the entity has a Felony Conviction. 4 Prohibition. If
(1) the SAM entry for an entity indicates that the entity has a Tax Delinquency or a Federal Conviction;
(2) an entity provides an affirmative response to either certification in section 3; or (3) an entity’s certification under section 3 was inaccurate when made or became inaccurate after being made
then a Participant shall not enter or continue a Covered Transaction with that entity unless the USDOT has determined in writing that suspension or debarment of that entity are not necessary to protect the interests of the Government.
5. Mandatory Notice to the USDOT.
(a) If the SAM entry for a Participant indicates that the Participant has a Tax Delinquency or a Felony Conviction, the Recipient shall notify the USDOT in writing of that entry. (b) If a Participant provides an affirmative response to either certification in section 1, the Recipient shall notify the USDOT in writing of that affirmative response. (c) If the Recipient knows that a Participant’s certification under section 1 was inaccurate when made or became inaccurate after being made, the Recipient shall notify the USDOT in writing of that inaccuracy.
6. Flow Down. For all Covered Transactions, including all tiers of subcontracts and subawards, the Recipient shall:
(1) require the SAM check in section 2;
(2) require the certifications in section 3;
(3) include the prohibition in section 4; and
(4) require all Participants to notify the Recipient in writing of any information that would require the Recipient to notify the USDOT under section 5.
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22 EXHIBIT B.4: RECIPIENT POLICY TO BAN TEXT MESSAGING WHILE DRIVING (a) Definitions. The following definitions are intended to be consistent with the definitions in DOT Order 3902.10, Text Messaging While Driving (Dec. 30, 2009) and Executive Order 13513, Federal Leadership on Reducing Text Messaging While Driving (Oct. 1, 2009). For clarification purposes, they may expand upon the definitions in the executive order.
For the purpose of this Term B.4, “Motor Vehicles” means any vehicle, self-propelled or drawn by mechanical power, designed and operated principally for use on a local, State or Federal roadway, but does not include a military design motor vehicle or any other vehicle excluded under Federal Management Regulation 102-34-15.
For the purpose of this Term B.4, “Driving” means operating a motor vehicle on a roadway, including while temporarily stationary because of traffic congestion, a traffic signal, a stop sign, another traffic control device, or otherwise. It does not include being in your vehicle (with or without the motor running) in a location off the roadway where it is safe and legal to remain stationary.
For the purpose of this Term B.4, “Text messaging” means reading from or entering data into any handheld or other electronic device (including, but not limited to, cell phones, navigational tools, laptop computers, or other electronic devices), including for the purpose of Short Message Service (SMS) texting, e-mailing, instant messaging, obtaining navigational information, or engaging in any other form of electronic data retrieval or electronic data communication. The term does not include the use of a cell phone or other electronic device for the limited purpose of entering a telephone number to make an outgoing call or answer an incoming call, unless this practice is prohibited by State or local law. The term also does not include glancing at or listening to a navigational device that is secured in a commercially designed holder affixed to the vehicle, provided that the destination and route are programmed into the device either before driving or while stopped in a location off the roadway where it is safe and legal to remain stationary.
For the purpose of this Term B.4, the “Government” includes the United States Government and State, local, and tribal governments at all levels.
(b) Workplace Safety. In accordance with Executive Order 13513, Federal Leadership on Reducing Text Messaging While Driving (Oct. 1, 2009) and DOT Order 3902.10, Text Messaging While Driving (Dec. 30, 2009), the Recipient, subrecipients, contractors, and subcontractors are encouraged to:
(1) adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers including policies to ban text messaging while driving— (i) Company-owned or -rented vehicles or Government-owned, leased or rented vehicles; or
(ii) Privately-owned vehicles when on official Government business or when performing any work for or on behalf of the Government.
(2) Conduct workplace safety initiatives in a manner commensurate with the size of the business, such as—
(i) Establishment of new rules and programs or re-evaluation of existing programs to prohibit text messaging while driving; and
(ii) Education, awareness, and other outreach to employees about the safety risks associated with texting while driving.
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23 (c) Subawards and Contracts. To the extent permitted by law, the Recipient shall insert the substance of this exhibit, including this paragraph (c), in all subawards, contracts, and subcontracts under this award that exceed the micro-purchase threshold, other than contracts and subcontracts for the acquisition of commercially available off-the-shelf items.
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24 EXHIBIT B.5: EQUIVALENT LABOR PROTECTIONS UNDER 49 U.S.C. 22905(c)(2)(B) This Exhibit provides guidance on the protective arrangements equivalent to the protective arrangements established under Section 504 of the Railroad Revitalization Reform Act of 1976, with respect to employees affected by actions taken in connection with a Project financed in whole or in part with financial assistance subject to 49 U.S.C. § 22905(c)(2)(B). Fluctuations and changes in volume or character of employment brought about solely by other causes are not within the scope of this Exhibit.
1. Definitions. Whenever used in this Exhibit, capitalized terms shall have the meanings below:
(a) “Average Monthly Compensation” means the total compensation received by a Displaced Employee or a Dismissed Employee during the last twelve (12) months in which they were employed immediately preceding the date of their displacement or dismissal, divided by twelve (12).
The Average Monthly Compensation shall be adjusted to reflect subsequent general wage increases. (b) “Average Monthly Time” means the total number of hours worked by a Displaced Employee during the last twelve (12) months in which they were employed immediately preceding the date of their displacement, divided by twelve (12).
(c) “Day” means one 24-hour calendar day (including holidays and weekends) for purposes of calculating deadlines and other timeframes in this Exhibit. (d) “Displaced Employee” means a Protected Employee who remains employed by a Railroad but, as a result of a Project, is placed in a worse position with respect to compensation and rules governing working conditions. A Protected Employee’s status as a Displaced Employee begins on the date said employee is harmed.
(e) “Dismissed Employee” means a Protected Employee who: (1) as a result of a Project, is deprived of employment with the Railroad because (i) the Railroad eliminates the Protected Employee’s position, or (ii) the Railroad eliminates another employee’s position (and that employee’s exercise of seniority rights results in the Protected Employee’s inability to secure another position by the exercise of the Protected Employee’s seniority rights); and (2) is unable to secure another position by exercise of their seniority rights A Protected Employee’s status as a Dismissed Employee begins on the date said employee is deprived of employment.
(f) “Project” means any action financed in whole or in part with financial assistance subject to 49 U.S.C. § 22905(c)(2)(B).
(g) “Protected Employee” means an employee of a Railroad who is affected by actions taken pursuant to a Project, whether the Project is initiated by a Railroad or a Recipient. If a Railroad rearranges or adjusts its forces in anticipation of a Project with the purpose or effect of depriving an employee of benefits to which they otherwise would have become entitled under this Exhibit, then that employee is a Protected Employee under this Exhibit. An employee’s status as a Protected Employee shall continue for the duration of the applicable Protective Period. An employee who solely benefitted as a result of a Project shall not be a Protected Employee under this Exhibit. (h) “Protective Period” means that period during which a Displaced Employee or a Dismissed Employee is provided the protections described in this Exhibit. The Protective Period begins 928
25 on the date an employee of a Railroad is displaced or dismissed and ends after six (6) years. However, the Protective Period for any particular employee shall not continue longer than the period of time the Railroad employed the employee prior to the date of their displacement or dismissal. For purposes of this Exhibit, an employee’s length of service shall be determined in accordance with the provisions of Section 7(b) of the Washington Job Protection Agreement of May 1936, as amended. (i) “Recipient” means any person or entity receiving financial assistance subject to the requirements of 49 U.S.C. § 22905(c), including grantees, subrecipients, contractors, and subcontractors. (j) “Railroad” means (1) a railroad carrier as defined in 49 U.S.C. § 20102(3), or (2) any person deemed a rail carrier pursuant to 49 U.S.C. § 22905(b).
2. Flow Down.
(a) In accepting financial assistance for a Project, the Recipient is responsible for ensuring the compliance with the protections provided in this Exhibit. The Recipient shall make the acceptance of this Exhibit a condition of any new contract (or incorporate its terms into any existing contract by amendment) that uses funds subject to the requirements of 49 U.S.C. § 22905(c). These conditions shall apply to a Recipient, any Railroad and any contractor of any tier with which the Recipient contracts using funds subject to the requirements of 49 U.S.C. § 22905(c). (b) The Recipient shall require in an agreement (either in a new agreement or as an amendment to an existing agreement) with a Railroad owning the right-of-way to be improved by a Project that the Railroad notify its employees (or their representatives) of the Project being funded with financial assistance subject to 49 U.S.C. § 22905(c) and the applicability of these protections. (c) Any Railroad employee (or their representatives) may notify a Recipient of a dispute or controversy relating to the requirements of this Exhibit to ensure compliance with 49 U.S.C. § 22905(c)(2)(B).
3. Collective Bargaining Agreements.
(a) Existing Agreements. The rates of pay, rules, working conditions, and all collective bargaining and other rights, privileges, and benefits (including continuation of pension rights and benefits) of a Railroad’s employees under applicable laws, regulations, and/or existing collective bargaining agreements shall be preserved and remain applicable unless changed by future collective bargaining agreements or applicable statutes or regulations. As applied to the regulation of subcontracting by the Railroads of a Project, the provisions of this section shall mean that a determination of whether or not such work validly may be subcontracted by a Railroad shall not be affected by the fact that the work is being financed by funds subject to the requirements of 49 U.S.C. § 22905(c)(2)(B). Nothing in this Exhibit shall be construed as depriving any Railroad employee of any rights or benefits or eliminating any obligations that such employee may have under any existing contractual or statutory arrangement, including job security agreements, protective conditions, or arrangements.
(b) Election by Protected Employee. Where a Protected Employee is eligible for protections under both this Exhibit and another contractual or statutory arrangement, the Protected Employee shall elect between the protection under this Exhibit and protection under such other arrangement. After 929
26 such an election, the Protected Employee shall be protected only by the arrangement that they elect.
The Protected Employee shall not be entitled to any protection or benefit (regardless of whether such benefit is duplicative) under the arrangement that they do not elect. However, if the elected protection expires pursuant to the terms of the arrangement that governs the elected protection, the Protected Employee is entitled to protection under the arrangement not originally elected for the remainder, if any, of the Protective Period.
4. Change in Operations, Services, Facilities, or Equipment. (a) Notice. When a Railroad contemplates a change or changes in its operations, services, facilities, or equipment as a result of a Project, which may cause the dismissal or displacement of Protected Employees or rearrangement of forces involving such employees, it shall give at least sixty (60) days’ written notice of such intended changes to both Protected Employees and their duly authorized representatives (if applicable). Such notice shall contain a full and adequate description of the proposed changes, including an estimate of the number of Protected Employees of each class affected by the intended changes.
(b) Negotiations.
(i) Initiation of Negotiation. Within sixty (60) days after the Railroad issues a notice under Section 4(a) of this Exhibit, the Railroad or the Protected Employees (or their representatives) may, by written notice to the other party, request a meeting and opportunity to negotiate an agreement with respect to the application of the terms and conditions of this Exhibit. These negotiations shall commence within fourteen (14) days from the receipt of such request.
(ii) Subject of Negotiations. Each change to rail operations, services, facilities, infrastructure, or equipment (including rights-of-way, track, and signal and crossing systems) that may result in dismissal or displacement of Protected Employees or rearrangement of forces involving such employees shall be subject to review and negotiation by the parties, but only to the extent necessary to ensure compliance with this Exhibit. For any contemplated rearrangement of rail forces, the Railroad and the representative(s) of the Protected Employees shall agree on the method of selection of employees to be moved, and the assignment of those employees to new roles.
(c) Arbitration. If the Railroad and the representative(s) of the Protected Employees fail to agree within forty-five (45) days from the initial meeting and opportunity to negotiate, either party may submit the dispute for arbitration in accordance with the following procedures:
(i) Notice & Selection of Arbitrator. Within ten (10) days after either party has notified the other in writing of their desire to submit the dispute for arbitration, the parties shall select a neutral arbitrator. If the parties cannot agree upon the selection of said arbitrator, then the parties shall submit a request to the National Mediation Board to appoint an arbitrator. In either case, a hearing shall be scheduled no later than thirty (30) days after an arbitrator has been appointed.
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27 (ii) Binding Decision. The decision of the arbitrator shall be final, binding, and conclusive and shall be rendered within thirty (30) days from the date of the commencement of the hearing of the dispute.
(iii) Expenses. The salary and expenses of the arbitrator shall be borne equally by the parties to the proceeding; all other expenses shall be paid by the party incurring them. (d) Implementation. If a notice is issued under Section 4(a), the Railroad shall not implement such a change or changes until: (i) sixty (60) days after the notice in accordance with Section 4(a), if no party requests a meeting and opportunity to negotiate; (ii) the parties reach agreement pursuant to Section 4(b), if a party requests a meeting and opportunity to negotiate; or (iii) a referee has rendered a decision pursuant to Section 4(c).
5. Protections for Displaced Employees
(a) Displacement Allowances.
(i) In General. If a Displaced Employee is unable, in the normal exercise of such employee’s seniority rights under existing agreements, rules and practices, to obtain a position that is compensated equal to or exceeding the compensation the Displaced Employee received in the position from which such employee was displaced, then the Displaced Employee shall, during the Protective Period, be paid a monthly displacement allowance equal to the difference between the monthly compensation received by the Displaced Employee in the position in which such employee is retained and the Average Monthly Compensation received by the Displaced Employee in the position from which such employee was displaced (the “Displacement Allowance”).
(ii) Application of Displacement Allowance. If a Displaced Employee’s compensation in that employee’s retained position is less in any month in which such employee performs work than the Average Monthly Compensation, then the Displaced Employee shall be paid the difference between the current compensation and the Average Monthly Compensation.
However, the Displacement Allowance shall be reduced by the Displaced Employee’s time lost as a result of voluntary absences, to the extent that the Displaced Employee is not available for service equivalent to the Displaced Employee’s Average Monthly Time. If, on the other hand, the Displaced Employee, in such employee’s retained position, works in excess of the Average Monthly Time in any given month, then the Displaced Employee shall be additionally compensated for such excess time at the rate of pay of the employee’s retained position. If a Displaced Employee fails to exercise their seniority rights to secure another position available to the employee which does not require a change in such employee’s place of residence, to which the employee is entitled under the working agreement, and which carries a rate of pay and compensation exceeding those of the position that the employee elects to retain, then the Displaced Employee shall thereafter be treated for the purposes of this section as occupying the position such employee elects to decline.
(iii) Early Expiration. The Displacement Allowance shall cease prior to the expiration of the Protective Period in the event of the Displaced Employee’s resignation, death, retirement, or dismissal for justifiable cause.
931
28 (b) Moving Expenses. Any Protected Employee retained in the service of a Railroad, or who is later restored to service after being entitled to receive a Dismissal Allowance, and is required to change the point of such employee’s employment as a result of the Project, and within the employee’s Protective Period is required to move the employee’s place of residence, shall be reimbursed for all expenses of moving the employee’s household and other personal effects, including travel expenses, temporary living expenses, and any actual wage loss during the time necessary to make the move, and for a reasonable time thereafter, not to exceed five (5) days. (i) Prior Agreement. The exact extent of the responsibility of a Railroad under this Section and the ways and means of transportation shall be agreed upon in advance by the Railroad and the Protected Employee or their representatives. (ii) Exception. Changes in residence that are not a result of a Project, which are made after the initial change and that grow out of the normal exercise of seniority rights, are not within the purview of this Section.
(iii) Furloughed Employees. The Railroad shall, to the same extent provided above, assume the moving expenses outlined in Section 5(b) for an employee furloughed within three (3) years after changing such employee’s point of employment as a result of a Project, who elects to move their place of residence back to their original point of employment. (iv) Reimbursement. A claim for reimbursement shall be paid under the provisions of this Section within sixty (60) days after it is submitted, unless disputed by the Railroad, but no claim shall be paid if presented to the Railroad more than ninety (90) days after the date on which the expenses were incurred.
(c) Losses from Home Sale or Contract Termination. Any Displaced Employee who is retained in the service of a Railroad (or who is later restored to service after being entitled to receive a dismissal allowance), and who is required to change the point of such employee’s employment during the Protective Period as a result of a Project, is entitled to the following:
(i) Home Sale for Less Than Fair Market Value. If the Displaced Employee owns their place of residence in the locality from which such employee is required to move, then at the Displaced Employee’s option, the Railroad shall reimburse the Displaced Employee for the difference between the actual sale price and the fair market value of the employee’s place of residence. The Railroad shall pay such difference within sixty (60) days after the Displaced Employee has filed a claim for such loss in accordance with Section 5(c)(vi), unless a controversy arises as to which Section 5(c)(vii) applies. In each case, the fair market value of the home in question shall be determined without consideration of the Project. The Railroad shall in each instance be afforded an opportunity to purchase the home at such fair market value before it is sold by the Displaced Employee to any other person.
(ii) Election to Receive Closing Costs. The Displaced Employee may elect to waive the provisions of Section 5(c)(i) and to receive, in lieu thereof, an amount equal to the closing costs that are customarily paid for and assumed by a seller of real estate in the jurisdiction in which the employee’s residence is located. Such costs shall include customary fees paid to a licensed realtor (not to exceed six percent (6%) of the final sale price) and any prepayment penalty required by any mortgagor or beneficiary of a deed of trust. Such costs shall not include 932
29 the payment of any mortgage discount points or similar interest discount fees by the Displaced Employee.
(iii) Pending Contract to Purchase. If a Displaced Employee has entered into a contract to purchase a place of residence, but due to a Project must cancel that contract, the Railroad shall indemnify the Displaced Employee against any losses due to such cancellation, and shall relieve the Displaced Employee from any further obligation under the contract. (iv) Unexpired Lease. If the Displaced Employee holds an unexpired lease of a dwelling as the employee’s primary place of residence, and the Displaced Employee must cancel the lease due to a Project, the Railroad shall indemnify the Displaced Employee from all costs and liability arising from said cancellation.
(v) Exclusions. Any change in residence that is not due to or caused by a Project, or that resulted from the normal exercise of a Protected Employee’s seniority rights, shall not be within the purview of this Section.
(vi) Notification of Claims. A Displaced Employee shall notify, in writing, the Railroad of such employee’s claim arising from this Section 5(c) within one (1) year of the date the Displaced Employee’s claim accrues.
(vii) Home Value Disagreements. In the event of disagreement between a Railroad and a Displaced Employee as to the value of a Displaced Employee’s claim, either party (or their representatives) may request, in writing, a joint conference to resolve the disagreement.
A. Real Estate Appraisers. If the parties are unable to resolve the disagreement, either party may refer the disagreement to two licensed real estate appraisers, one of whom shall be selected by the Displaced Employee (or such employee’s representatives), and one of whom shall be selected by the Railroad. If the two selected real estate appraisers are unable to agree on a valuation within thirty (30) days, the selected real estate appraisers shall designate (or agree to a method by which to select) a third licensed real estate appraiser within ten (10) days. If unable to agree on a selection, either party may request the National Mediation Board to designate within twenty (20) days a third licensed real estate appraiser. A decision by two of the three licensed real estate appraisers shall be required to determine the value in dispute. Said decision shall be final and conclusive.
B. Payment of Expenses. The salary and expenses of the third or neutral appraiser shall be borne equally by the parties to the proceedings. All other expenses shall be paid by the party incurring them, including the compensation of the appraiser selected by such party.
(d) Failure to Exercise Seniority Rights. If a Displaced Employee is able but does not exercise such employee’s seniority rights to secure another position that does not require a change in the employee’s primary place of residence, the Displaced Employee shall not be entitled to moving expenses or protections due to the sale of a home outlined in Sections 5(b)&(c). 933
30 6. Protections for Dismissed Employees.
(a) Dismissal Allowance. A Dismissed Employee shall be paid a monthly dismissal allowance from the date they are deprived of employment through the Protective Period. (i) Monthly Dismissal Allowance Calculation. The monthly dismissal allowance shall be equivalent to the Average Monthly Compensation received by the Dismissed Employee in the last twelve (12) months of employment prior to the employee’s dismissal. (ii) Submission of Claim. A claim for the initial month of a dismissal allowance shall be paid within ninety (90) days and a claim for a subsequent month shall be paid within sixty (60) days after the claim is filed by the Dismissed Employee, unless the claim is disputed by the Railroad pursuant to Section 8 of this Exhibit.
(iii) Reduction or Suspension of Dismissal Allowance. If a Dismissed Employee accepts new employment (or reemployment by the dismissing Railroad) during the Protective Period, the dismissal allowance shall be reduced such that the accepted monthly compensation at the then-current position (including any unemployment insurance compensation received) plus the dismissal allowance is equivalent to the Dismissed Employee’s Average Monthly Compensation. If the compensation of the Dismissed Employee’s then-current employment is greater than the dismissal allowance, the dismissal allowance shall be suspended. Such reduction or suspension shall continue for the duration of the Protective Period, unless and until the Dismissed Employee’s then-current compensation is reduced or eliminated. Prior to dismissal, such Dismissed Employee (or their representative) and the dismissing Railroad shall agree upon a procedure by which such Railroad shall be informed of the earnings and benefits of such Dismissed Employee in their new position of employment. (iv) Early Termination. The dismissal allowance shall cease prior to the expiration of the Protective Period in the event of the Dismissed Employee’s resignation, death, retirement, dismissal for justifiable cause under existing agreements, failure without good cause to return to service after being notified in accordance with an applicable working agreement, or failure without good cause to accept a comparable position that does not require a change of residence, for which the Dismissed Employee is qualified and eligible with the Railroad from which such employee was dismissed after being notified, if the employee’s return does not infringe upon employment rights of other employees under a working agreement. (b) Separation Allowance. A Dismissed Employee may, at such employee’s option, within seven (7) days of dismissal or an arbitration award establishing the employee’s status as a Dismissed Employee, resign and (in lieu of all other benefits and protections provided in this Exhibit) accept a lump sum payment computed in accordance with Section 9 of the Washington Job Protection Agreement of May 1936, as amended.
(c) Priority of Employment or Re-Employment. Any Protected Employee whose employment is terminated or who is furloughed as a result of a Project shall, if they so request, be granted priority of employment or re-employment to fill a position comparable to that which they held on the Railroad (even if in a different craft or class), so long as they are qualified, or by training or retraining can become physically and mentally qualified, for the position. However, such priority of 934
31 employment or re-employment must not be in contravention of any relevant collective bargaining agreements.
(i) Training or Re-Training. In the event such training or retraining is requested by a Protected Employee pursuant to Section 6(c), the Railroad shall provide such training or retraining at no cost to the Protected Employee.
(ii) Waiver of Protections. If a Protected Employee who has made a request under Section 6(c) fails without good cause within ten (10) days to accept an offer of a comparable position for which such employee has satisfactorily completed such training, the Protected Employee shall, upon the expiration of such ten (10) day period, forfeit all rights and benefits under this Exhibit.
7. Fringe Benefits. No Protected Employee shall be deprived during the Protective Period of any (non-salary) rights, privileges, or benefits attached to such employee’s previous employment under the terms and conditions of an existing employment agreement (including, but not limited to, free transportation, hospitalization, pensions, insurance, or vacation benefits), so long as such rights, privileges, or benefits continue to be accorded to other employees of the Railroad, in active service or on furlough as the case may be, to the extent that such rights, privileges, or benefits can be so maintained under present authority of law, corporate action, or through future authorization.
8. Arbitration of Disputes.
(a) Scope. Any dispute under these conditions not settled by the relevant parties will be resolved in arbitration as provided herein. In the event a Railroad and the Protected Employee(s) (or their representatives) cannot settle a dispute or controversy with respect to the interpretation, application, or enforcement of any provision of this Exhibit (other than those Sections of this Exhibit that provide for another means of dispute resolution) within thirty (30) days after the dispute arises, either party may refer the dispute to an arbitration committee. The affected Protected Employee(s) (or their representatives) may notify a Recipient of a dispute or controversy under this Section 8 to ensure compliance with 49 U.S.C. § 22905(c)(2)(B).
(b) Notice. The party referring the dispute to an arbitration committee shall notify the other party in writing of its intent to refer a dispute or controversy to an arbitration committee. (c) Selection of Members. Within ten (10) days of receipt of the written notice, each party to the arbitration shall select one (1) member of the committee, and the members thus chosen shall select an additional, neutral member to serve as chairman. If any party fails to select its member of the arbitration committee within the prescribed time limit, the general chairman of the involved labor organization or a senior officer designated by the Railroad or the Recipient, as the case may be, shall be deemed the selected member. Should the members be unable to agree upon the appointment of the neutral member within ten (10) days, the parties shall then within an additional ten (10) days agree to a method by which a neutral member shall be appointed; failing such agreement, either party may request the National Mediation Board to designate within twenty (20) days the neutral member whose designation will be binding upon the parties.
(d) Multiple Representatives. In the event a dispute involves more than one labor organization, each will be entitled to a representative on the arbitration committee, in which event the Railroad or Recipient may appoint additional representatives equivalent to the number of labor 935
32 organization representatives; provided, however, that the decision in such case shall be made by the neutral member.
(e) Decisions Binding. The decision, by majority vote except as provided otherwise in paragraph (d) of this Section, of the arbitration committee shall be final, binding, conclusive, and rendered within forty-five (45) days after the hearing of the dispute or controversy has been concluded and the record closed.
(f) Expenses. The salaries and expenses of the neutral member shall be borne equally by the parties to the proceeding, and all other expenses shall be paid by the party incurring them.
9. Classification of a Protected Employee. In the event an employee (or their representatives) cannot settle a dispute or controversy with the Railroad or the Recipient as to whether or not a particular employee would be affected by a Project, either party may refer the dispute to an arbitration committee within thirty (30) days after the dispute arises pursuant to the arbitration procedures in Section 8. For any such dispute, the employee of a Railroad shall have the burden to identify, with reasonable specificity, the Project that allegedly affected them, and to specify the pertinent facts of that Project, including the change or changes resulting from the Project that allegedly affected them. The burden shall then shift to the Railroad or Recipient to show that factors other than a change resulting from the Project affected the employee. The employee shall prevail on this issue if it is established that the Project had an effect upon the employee, even if other factors also may have affected the employee.
10. Resolution of Disputes for Non-Bargaining Unit Protected Employees. Any Protected Employee who is not represented by a labor organization shall be afforded substantially the same levels of protection as are afforded to members of labor organizations under this Exhibit. In the event any dispute arises between a Railroad and an employee not represented by a labor organization with respect to the interpretation, application, or enforcement of any provision of this Exhibit that cannot be settled by the parties within thirty (30) days after the dispute arises, either party may, as an alternative to the dispute resolution procedures outlined in this Exhibit, refer the dispute within ninety (90) days after the dispute arises to the Secretary of Labor for determination. The determination of the Secretary of Labor, or their designated representative, shall be final and binding on the parties.
11. Severability. In the event any provision of this Exhibit is held to be invalid or otherwise unenforceable under applicable law, the remaining provisions of this Exhibit shall not be affected.
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33 EXHIBIT C: QUARTERLY PROJECT PROGRESS REPORTS AND RECERTIFICATIONS 937
11. Certification: By checking this box, I certify that I have reviewed this report and that, to the best of my knowledge, the report is complete, accurate, and meets the terms and conditions of the award.
1. Report Submission Date (mm/dd/yy): 2. Report Quarter: 3. FFY:
B. Overall Project Status
a. Status b. Explanation
12. Scope
13. Schedule
14. Budget
1 A. Submission Information
4. Agreement Number 5. Project Title 6. Project Type
7. Completed By (Name) 8. Title 9. Email 10. Phone
15. Significant Activities this Quarter 16. Significant Activities Planned for Next Quarter Paperwork Reduction Act Burden Statement A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2130-0615. Public reporting for this collection of information is estimated to be approximately 4 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Information Collection Clearance Officer (RAD-20), Federal Railroad Administration, 1200 New Jersey Avenue, Washington, DC. 20590.
Expires 01/31/2025 OMB Control No. 2130-0615
FRA F 34
FRA GRANT/COOPERATIVE AGREEMENT
Quarterly Progress Report
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938
C. Financial Status
Reimbursement Forecast
25. Planned Reimbursement Requests to FRA 26. Unliquidated Obligations 25 a. Next Quarter 25 b. Next Four Quarters
(Cumulative)
26 a. Any reported
on this quarter’s
SF-425?
26 b. Explanation
2 18. Budget
Changes? 18 a. Status 18 b. Explanation
Budget Status
Expenditures and Reimbursement Status
Funding Source Actual Expenditures this Quarter
19. FRA Grant:
20. Grantee Match:
21. Other Federal Funds:
22. Total:
23. Accomplishments Related to Expenditures in this
Quarter
24. Accomplishments Related to Expenditures in other
Quarters (if applicable)
17. Amendment
Request? 17 a. Status 17 b. Explanation
FRA F 34 (4/2021)
Yes N/A
Yes N/A
$ 0.00
No
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If your project contains one or more of the following components, please report on all that apply:
Completion Date
27. Milestone Name 28. Status 29. Planned 30. Actual
31. Change
to Status? 32. Status Notes
All Projects
27 a. Award of SubContract(s)
27 b. Project Work Begun
27 c. Project Substantially
Complete
Projects with a Construction Component
27 d. Construction Notice to
Proceed Issued
27 e. ROW Acquisition
Complete
27 f. Construction GroundBreaking
27 g. Construction
Substantially Complete
27 h. Environmental
Mitigation Substantially
Complete
27 i. Ribbon-Cutting
Ceremony
27 j. Commencement of
Service
Projects with a Rolling Stock Component
27 k. Test Vehicle Complete
27 l. First Rolling Stock
Delivery
3 D. Major Milestones
mm/dd/yy
FRA F 34 (4/2021)
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40. Change to
Status?
39. Complete (%)
Completion Date
(mm/dd/yy)
36 37. Planned 38. Actual . Task
Started?
4. Task Name 35. Status3
Contingency (optional)
33. Task #
4 E. Statement of Work Task Status
Percent
FRA F 34 (4/2021)
1 Pre-populated Off-Track
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E. Statement of Work Task Status (Continued)
5 41. Status Notes
= Drop Down Menu
FRA F 34 (4/2021)
942
1 UPRR REMS
Project 802618
REIMBURSEMENT AGREEMENT
PRELIMINARY ENGINEERING SERVICES
Effective Date:
Estimate: $450,000.00
THIS REIMBURSEMENT AGREEMENT (Agreement) is made and entered into as of the Effective Date, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (Railroad), and CITY OF BANNING CALIFORNIA (Agency).
RECITALS
A. Agency desires to initiate the project more particularly described on Exhibit A attached hereto (Project).
B. The Project will affect Railroad's track and right of way at or near the Project area more particularly described on Exhibit A.
C. Railroad agrees to collaborate with Agency on the conceptualization and development of the Project in accordance with the terms and conditions of this Agreement.
AGREEMENT
NOW THEREFORE, the parties hereto agree as follows:
1. Railroad, and/or its representatives, at Agency's sole cost and expense, agrees to perform (or shall cause a third-party consultant to perform on Railroad's behalf) the preliminary engineering services work described on Exhibit B attached hereto (PE Work). Agency acknowledges and agrees that: (a) Railroad's review of any Project designs, plans and/or specifications, as part of the PE Work, is limited exclusively to potential impacts on existing and future Railroad facilities and operations; (b) Railroad makes no representations or warranties as to the validity, accuracy, legal compliance, or completeness of the PE Work; and (c) Agency's reliance on the PE Work is at Agency's own risk.
2. Notwithstanding the Estimate (Estimate), Agency agrees to reimburse Railroad and/or Railroad's third-party consultant, as applicable, for one hundred percent (100%) of all actual costs and expenses incurred for the PE Work. During the performance of the PE Work, Railroad will provide (and/or will cause its third-party consultant to provide) progressive billing to Agency based on actual costs in connection with the PE Work. Within sixty (60) days after completion of the PE Work, Railroad will submit (and/or will cause its third-party consultant to submit) a final billing to Agency for any balance owed for the PE Work. Agency shall pay Railroad (and/or its third-party consultant, as applicable) within thirty (30) days after Agency's receipt of any progressive and final bills submitted for the PE Work. Bills will be submitted to the Agency using the contact information provided on Exhibit C. Agency's obligation hereunder to reimburse Railroad (and/or its third-party consultant, as applicable) for the PE Work shall apply regardless whether Agency declines to proceed with the Project or Railroad elects not to approve the Project. 943
2 3. Agency acknowledges and agrees that Railroad may withhold its approval for the Project for any reason in its sole discretion, including without limitation, impacts to Railroad's safety, facilities, or operations. If Railroad approves the Project, Railroad will continue to work with Agency to develop final plans and specifications, and prepare material and force cost estimates for any Project related work performed by Railroad.
4. If the Project is approved by Railroad, Railroad shall prepare and forward to Agency a Construction and Maintenance Agreement (C&M Agreement) which shall provide the terms and conditions for the construction and ongoing maintenance of the Project. Unless otherwise expressly set forth in the C&M Agreement, the construction and maintenance of the Project shall be at no cost to Railroad. No construction work on the Project affecting Railroad's property or operations shall commence until the C&M Agreement is finalized and executed by Agency and Railroad.
5. Neither party shall assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed.
6. No amendment or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties.
7. This Agreement sets forth the entire agreement between the parties regarding the Project and PE Work. To the extent that any terms or provisions of this Agreement regarding the PE Work are inconsistent with the terms or provisions set forth in any existing agreement related to the Project, such terms and provisions shall be deemed superseded by this Agreement to the extent of such inconsistency.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the Effective Date.
CITY OF BANNING CALIFORNIA UNION PACIFIC RAILROAD COMPANY, a Delaware Corporation
Signature Signature
KENNETH TOM
Printed Name Printed Name
Manager I, Industry & Public Projects
Title Title
944
Exhibit A
Project Description and Location
Project Description
The City of Banning, California, proposes to grade separate the existing crossing at the location referenced below
Location
Yuma Subdivision
DOT
Crossing
Type Milepost Street Name
981688J Public 568.722 Hargrave Street
945
Exhibit B
Scope of Project Services
Scope of work includes, but is not limited to the following • Field diagnostic(s) and inspections
• Plan, specification, and construction review
• Project design
• Preparation of Project estimate for force account or other work performed by the Railroad
• Meetings and travel
946
Exhibit C
Billing Contact Information
Name Patrick Safari
Title CIP Manager
Address 99 E Ramsey Street, Banning CA 92220
Work Phone (951) 922-3182
Cell Phone
Email [email protected]
Agency
Project No.
947
CITY OF BANNING
STAFF REPORT
TO: CITY COUNCIL
FROM: Robert Fisher, Acting City Manager
PREPARED BY: Holly Stuart, Public Works Program Manager Art Vela, Director of Public Works
MEETING DATE: May 27, 2025
SUBJECT: Consideration of Resolution 2025-75, Approving Amendment No. 2 to the Custodial Services Agreement to Executive Facilities Services, Inc. for Custodial Services at City Facilities in the Amount of $224,512 RECOMMENDATION:
Adopt Resolution 2025-75.
BACKGROUND:
On May 23, 2023, Resolution 2023-92 was approved awarding a Custodial Services Agreement to EFS in the amount of $184,752.42 with the option to renew four (4) additional single year periods. Upon annual review of services, staff recommends a contract extension for a one-year period.
On June 11, 2024, Amendment No. 1 to the agreement was approved extending the term for a one-year period and adding janitorial supplies (e.g., toilet paper, hands soap, paper towels, etc.) in the amount of $221,492.44.
At this time, staff evaluated and confirmed that the contractor continues to provide satisfactory services; therefore, recommends a term extension for FY 2025/2026. Overall, the increase in fees from the previous period is within the change in CPI and amounts to approximately 1.4%. If approved, Amendment No. 2 will increase compensation of the agreement by $224,511.56 and the total agreement will amount to $630,756.42 with the remaining option to renew two (2) additional single years.
The scope of work for services includes five (5) days per week facility maintenance of the Civic Center, City Yard and Banning Police Department. The Banning Water Shop and park restrooms require services three (3) days per week and the Community/Senior Centers shall be limited to quarterly floor and window cleanings as shown in the detailed specifications attached hereto under the original agreement. Additional compensation for Fiscal Year 2025/2026 services amount to $196,407.16 which includes $2,500 for services as needed.
In addition to custodial services and cleaning supplies, consumable janitorial supplies (e.g., toilet paper, hand soap, paper towels, etc.) are provided under the agreement which includes all labor for inventory maintenance, ordering, delivery and stocking of supplies for all City facilities serviced under the agreement. Additional compensation for this portion of the of the Agreement amount to $28,104.40 which includes $2,500 for services as needed.
In regard to janitorial supplies, it is also important to note that products that will be provided under this approval will meet State recycled-content paper requirements outlined by Senate Bill 1383 948
(CARecycling.ca.gov) and summarized below. Beginning January 1, 2022, SB 1383 requires jurisdictions to purchase recycled-content paper products that are recycled:
• Toilet paper shall consist of at least 45 percent, by fiber weight, postconsumer recycled content fiber • Paper towels shall consist of at least 40 percent, by fiber weight, postconsumer recycled content fiber • Toilet seat covers shall consist of at least 20 percent, by fiber weight, postconsumer recycled content fiber
JUSTIFICATION:
Custodial services are needed to provide regular scheduled custodial services to effectively, efficiently and safely maintain a high level of cleanliness for City facilities. Upon evaluating the existing services provided by EFS, staff recommends the contract renewal and processing of Amendment No 2 for FY 2025/2026. If approved, two (2) additional single-year renewals remain.
FISCAL IMPACT:
Amendment No. 2 will be funded by the operational budget of the Building and Maintenance Division, Account 704-3200-412.33-18 (Custodian Services).
ALTERNATIVES:
Do not adopt Resolution 2025-77 and provide alternative direction to staff. The City Council may choose to reject this action which would result in an interruption of services in custodial services of City properties. The City does not have staff resources to perform the janitorial maintenance tasks.
BUDGETED?:
Yes
CONTRACT/AGREEMENT:
Yes
ATTACHMENTS:
1. Resolution 2025-75, Custodial Services City Hall.docx
2. Amend No.2 to CSA for Custodial Services C00845.docx
3. Attach2_LocationRateBreakdown.xlsx
4. Attach 3A_C00845_EFS.pdf
5. Attach 3B_Amend No.1 EFS.pdf
949
Resolution 2025-75