Procurement

1. Acceptance and terms and conditions: Seller accepts the Order and any amendments by promptly acknowledging in writing receipt of the Order to COTA. Even without written acknowledgment, Seller’s full or partial performance under the Order will constitute acceptance of these Terms. By acceptance of the Order, Seller agrees to be bound by, and to comply with all these Terms, which include any supplements to it, and all specifications and other documents referred to in the Order. These Terms apply to everything listed in the Order and constitute COTA’s offer to Seller, which COTA may revoke at any time prior to Seller’s acceptance. The Order is not an acceptance by COTA of any offer to sell, any quotation, or any proposal. Reference in the Order to any such offer to sell, quotation, or proposal will not constitute a modification of any of these Terms. Terms and conditions different from or in addition to these Terms, whether contained in any acknowledgment of the Order, or with delivery of any goods or services under the Order, or otherwise, will not be binding on COTA, whether or not they would materially alter the Order, and COTA hereby rejects them. These Terms may be modified only by a written document signed by duly authorized representatives of COTA and Seller.

 

2. Default: Time is of the essence of the Order. COTA may by written notice to Seller (a) terminate all or any part of the Order if Seller fails to perform, or so fails to make progress as to endanger performance of the Order in accordance with its terms, and does not cure such failure within a period of ten (10) days (or such longer period as COTA may authorize in writing) after receipt of notice from COTA specifying such failure; and (b) procure, on such terms as it will deem appropriate, goods or services similar to those so terminated. Seller will continue performance of the Order to the extent not terminated and will be liable to COTA for any excess costs for such similar goods or services. As an alternate remedy, and in lieu of termination for default, COTA, at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies in Seller’s performance, in which case an equitable reduction in the Order price will be negotiated. If Seller for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of the Order, Seller will promptly notify COTA in writing. If Seller does not comply with COTA’s delivery schedule, COTA may require delivery by fastest way and charges resulting from the premium transportation must be fully prepaid and absorbed by Seller. The rights and remedies of COTA provided in this Section 2 will not be exclusive and are in addition to any other rights and remedies provided by the Uniform Commercial Code, by law, at equity or under the Order.

 

3. Price: The Order must not be filled at a price higher than shown on the face of the Order. If no price is set forth on the front of the Order, the goods or services will be billed at the price last quoted or at the prevailing market price, whichever is lower, and, in any event, goods and services ordered under the Order will not be billed at a higher price than last quoted or charged without COTA’s specific written authorization. COTA will be entitled at all times to set off any amount owed at any time by Seller or any of its affiliates to COTA against any amount payable at any time by COTA in connection with the Order. No extra charges of any kind will be allowed unless specifically agreed to in writing by COTA. All applicable taxes arising out of transactions contemplated by the Order will be borne by Seller except as otherwise specified by the parties in writing. If Seller reduces its prices for such goods and/or services during the term of the Order, Seller shall correspondingly reduce the prices of goods and/or services sold thereafter to COTA under the Order.

 

4. Invoices, payment, and taxes:
(a) Invoices shall be rendered on completion of services or delivery of goods and shall contain the Purchase Order Number, item number, description of goods or services, quantities, unit prices, date(s) rendered and total purchase price. Each invoice must refer to one, and only one, purchase order.

 

(b) Invoices for contingent workers must contain all of the above where applicable and include a copy of a time tracking document for each contingent worker for the time period being billed.

 

(c) Payment shall be made on the terms of net 30 days from the date of invoice received. All claims for money due or to become due from COTA shall be subject to deduction by COTA for any setoff or counterclaim arising out of the current Order or any other of COTA’s Orders with Seller.

 

(d) Seller recognizes that COTA will be treated as a tax-exempt entity, and COTA will provide Seller with its exemption certificate upon request. All invoices of Seller to COTA shall exclude taxes that are excludable under COTA’s tax exempt status.

 

5. Packaging: All goods must be packaged in the manner specified by COTA and shipped in the manner and by the route and carrier designated by COTA. If COTA does not specify the manner in which the goods must be packaged, Seller shall package the goods so as to avoid any damage in transit. If COTA does not specify the manner of shipment, route, or carrier, Seller shall ship the goods at the lowest possible transportation rates, consistent with Seller’s obligation to meet the delivery schedule set forth in the Order.

 

6. Inspection: All goods and services will be subject to inspection and test by COTA at all times and places, including the period of manufacture and in any event prior to final acceptance. Final acceptance or rejection of the goods or services will be made as promptly as practical after delivery except as otherwise provided in the Order, but failure to inspect and accept or reject goods or services or failure to detect defects by inspection, will neither relieve Seller from responsibility for such goods or services as are not in accordance with the Order nor impose liabilities on COTA for them. COTA’s payment for the goods shall not constitute its acceptance of the goods. Goods rejected and goods supplied in excess of quantities ordered may be returned to the Seller at Seller’s expense. Payment, if any, made for any goods rejected hereunder shall be promptly refunded by Seller. Seller will provide and maintain an inspection and process control system acceptable to COTA covering the goods and services ordered. Records of all inspection work by Seller will be kept complete and available to COTA during the performance of the Order and for three (3) years after Seller’s completion of the Order. If any of the goods or services are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of the Order, including any applicable drawings and specifications, then COTA, in addition to such other rights and remedies it may have by contract or by law or equity, at its sole discretion may reject and return such goods at Seller’s expense, require Seller to inspect the goods and remove nonconforming goods and/or require Seller to replace nonconforming goods or services with conforming goods or services. If Seller fails to make the necessary inspection, removal, and replacement in a time and manner satisfactory to COTA, COTA may at its option inspect and sort the goods; Seller will pay any related costs.

 

7. Warranties: Seller represents and warrants that (a) all goods and services are free of any claim of any nature by any third person and that Seller will convey clear title to COTA, (b) all services are performed in a manner acceptable in the industry and in accordance with generally accepted standards, are free from all defects, are fit for the particular purposes for which they are acquired, and are provided in strict accordance with the specifications or other requirements (including performance specifications) approved or adopted by COTA, (c) all goods sold will be of merchantable quality, free from all defects in design, workmanship and materials, and fit for the particular purposes for which they are purchased and that the goods and services are provided in strict accordance with the specifications, samples, drawings, designs or other requirements (including performance specifications) approved or adopted by COTA, (d) the prices for the goods or services sold to COTA under the Order are not less favorable than those currently extended to any other customer for the same or similar goods and/or services in equal or lesser quantities, and (e) Seller shall not act in any fashion or take any action that will render COTA liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt Practices Act), which prohibits the offering, giving, or promising to offer or give or receiving, directly or indirectly, money or anything of value to any third party to assist it, them or COTA in retaining or obtaining business or in procuring the goods or services. COTA’s inspection, test, acceptance, or use of the goods shall not affect Seller’s obligations under these warranties. Seller shall replace or correct, at COTA’s option and at Seller’s cost, defects of any goods not conforming to these warranties. If Seller fails to correct defects in or replace nonconforming goods within ten (10) days from the date the COTA notifies Seller of the defect or defects, COTA may, on ten (10) days prior written notice to Seller, either (i) make such corrections or replace such goods and charge Seller for all costs incurred by COTA, or (ii) revoke its acceptance of the goods in which event Seller shall be obligated to refund the purchase price and make all necessary arrangements, at Seller’s cost, for the return of the goods to Seller. All warranties of Seller herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by COTA. Any attempt by Seller to limit, disclaim, or restrict these warranties or any remedies of COTA, by acknowledgment or otherwise, in accepting or performing the Order, will be null, void, and ineffective without COTA’s written consent.

 

8. Indemnification: Seller shall indemnify and hold COTA and its affiliates harmless and, on COTA’s request, shall defend each of them from and against any or all third party claims, demands, litigation, or proceedings of whatever kind, whether based upon negligence, breach of express or implied warranty, strict liability, infringement of intellectual property rights, or any other theory, and from and against all direct, indirect, special, exemplary, incidental or consequential damages of every kind whatsoever, arising out of, by reason of, or in any way connected with the goods and/or services, the design, manner of preparation, manufacture, construction, completion, or delivery or non-delivery of any goods and/or services by Seller, any breach by Seller of any of its obligations hereunder, or any other act, omission or negligence of Seller or any of Seller’s employees, workers, servants, agents, subcontractors, or suppliers. Seller shall, on request, pay or reimburse COTA or any other party entitled to indemnification hereunder for all costs and expenses, including attorneys’ fees, as incurred by COTA or such other party in connection with any such claim, demand, litigation, proceeding, loss, or damage. In addition, for infringement claims, Seller will, at its own expense and at COTA’s option, either procure for COTA the right to continue using the allegedly infringing item, replace it with a non-infringing equivalent, or remove it and refund the purchase price and the transportation and installation costs thereof.

 

9. Limitation of liability: COTA’s aggregate liability arising from or relating to the Order is limited to the amount paid by COTA for the goods and/or services. To the maximum extent allowable under applicable law, COTA shall not be liable under the Order for any special, incidental, consequential, indirect, or punitive damages including, without limitation, lost revenues even if COTA has been advised of the possibility of such damages.

 

10. COTA’s property: Tangible or intangible property of any nature furnished to Seller by COTA or specifically paid for in whole or in part by COTA, and any replacements or attachments, are the property of COTA and, unless otherwise agreed in writing by COTA, will be used by Seller solely to render services or provide goods to COTA. Seller will not substitute any property or take any action inconsistent with COTA’s ownership of such property. While in Seller’s custody or control such property will be held at Seller’s risk, will be kept insured by Seller at its expense for its replacement cost with loss payable to COTA, and will be subject to removal at COTA’s written request, in which event Seller will prepare such property for shipment and redelivery to COTA in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller’s expense.

 

11. Changes: At all times COTA will have the right to make changes to the Order, including changes to drawings, designs, configurations, specifications, quantities, methods of shipment or packing and delivery schedules or location of delivery. If any such changes cause an increase or decrease in the cost of or the time required for the performance of any work under the Order, an equitable adjustment will be made in the Order price or delivery schedule, or both, and the Order will be modified in writing accordingly. Nothing in this Section, including any disagreement with COTA as to any claimed adjustment, will excuse Seller from proceeding with the Order as changed. Any claim by the Seller for adjustment under this Section 11 must be in a detailed writing and delivered to COTA within five (5) days after the date Seller receives notification of change. Any change will be authorized only by a duly executed amendment to the Order. Information, such as technical information or guidance provided to Seller by representatives of COTA, will not be construed as a change within the meaning of this Section. If Seller considers that the conduct of any of COTA’s employees has constituted a change under the Order, Seller will immediately notify COTA’s Director of Supply Management, in writing at purchasing@cota.com, as to the nature of the change and any proposed adjustment, which will then be subject to this Section 11.

 

12. Compliance with laws: Seller represents and warrants that it is in compliance with and all goods and/or services supplied hereunder have been produced or provided in compliance with the applicable provisions of all federal, state, or local laws or ordinances and all related lawful orders, rules and regulations. Seller shall comply with any provisions, representations, or agreements, or contractual clauses required to be included or incorporated by reference or operation of law in any Order. Seller shall be required to obtain and pay for any license, permit, inspection or listing by any public body or certification organization required in connection with the manufacture, performance, completion or delivery of any good and/or service.

 

13. Confidential or proprietary information: Notwithstanding any document marking to the contrary, any knowledge or information that the Seller has disclosed or may later disclose to COTA, and which in any way relates to the goods or services covered by the Order will not, unless otherwise specifically agreed to in writing by COTA, be deemed to be confidential or proprietary information, and will be acquired by COTA, free from any restrictions. Seller will not transmit to COTA any sensitive personal information, including, but not limited to, identified health information, financial information, social security numbers, biometrics or other personally identified or identifiable information of like sensitivity. Seller will keep confidential any technical, process, economic, or other information derived from drawings, specifications and other data furnished by COTA in connection with the Order (in whatever form or format) and will not divulge, export, or use, directly or indirectly, such information for the benefit of any other party without obtaining COTA’s prior written consent. Except as required for the efficient performance of the Order, Seller will not use such information or make copies or permit copies to be made of such drawings, specifications, or other data without the prior written consent of COTA. If any reproduction is made with prior consent, this notice will be provided. Upon completion or termination of the Order, Seller will promptly return to COTA all materials incorporating any such information and any copies, except for one record copy. Seller agrees that no acknowledgment or other information concerning the Order and the goods or services provided will be made public by Seller without the prior written agreement of COTA.

 

14. Prohibited Interest: No member, officer, trustee, or employee of COTA, or of a local public body during his/her tenure or one year thereafter shall have any interest direct or indirect, in the Order or the proceeds thereof.

 

15. Work on COTA’s premises: If Seller’s work under the Order requires Seller to be on the premises of COTA or at COTA’s direction, Seller will take all necessary precautions to prevent any injury to persons or damage to property, including following any rules, procedures or other requirements of COTA.

 

16. Termination: COTA may terminate all or any part of the Order for convenience at any time by written notice to Seller. Upon such termination, COTA’s liability will be limited to reasonable termination charges mutually agreed by Seller and COTA, provided that Seller must specify any proposed charges in writing within fifteen (15) days after termination. The Order shall terminate automatically, without notice, if Seller becomes insolvent or the subject of any proceeding under the laws relating to bankruptcy or the relief of debtors.

 

17. Government contracts: If the Order bears a government contract number on the face of the Order, Seller shall comply with all pertinent provisions of said government contract and pertinent executive orders and directives to the extent that they apply to the subject matter of the Order and all such pertinent contract provisions, orders and directives are hereby incorporated by reference into the Order. A copy of the government contract’s pertinent terms and conditions will be given to Seller on request.

 

18. Miscellaneous:
(a) Non-assignment: Assignment of the Order or any interest in it or any payment due or to become due under it, without the written consent of the COTA, will be void. An assignment will be deemed to include not only a transfer of the Order or such interest or payment to another party but also a change in control of Seller, whether by transfer of stock or assets, merger, consolidation, or otherwise.

 

(b) Transportation: All the prices are established as F.O.B. Seller and/or Origin Dock, Freight Prepaid, unless otherwise specifically provided on the front of the Order. Title and risk of loss shall not pass to COTA until delivery of the goods to the location designated on the face of the Order and acceptance by COTA. If COTA rightfully rejects the goods, receives a non-conforming tender, or revokes its acceptance, risk of loss and title shall be deemed to have remained with Seller. The responsibility for freight damaged merchandise will be assumed by Seller. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transportation charges, must be fully prepaid by the Seller. Seller will not declare any value on such materials shipped via United Parcel Service, Rail Express, Air Express, Air Freight or Parcel Post. Seller will release rail or truck shipments at the lowest released valuation permitted in the governing tariff or classification.

 

(c) Anticipation of delivery schedule: Unless otherwise agreed in writing, Seller will not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet COTA’s delivery schedule. Goods shipped to COTA in advance of schedule may be returned to Seller at Seller’s expense.

 

(d) Seller’s inventory: COTA will have no obligation to request quotations or place Orders with Seller, both of which will be in COTA’s sole discretion. COTA acting in its sole discretion will determine the actual quantity of goods or services to be purchased. The quantity of goods or services, if any, specified in forecasts supplied by COTA from time to time, or otherwise, is an estimate only. Seller bears sole responsibility for managing Seller’s raw material, work in process, and inventory, and COTA will have no liability with respect thereto (whether upon termination of the Order or otherwise) other than in connection with termination as provided in Section 16.

 

(e) Force majeure: Performance of the Order shall be pursued with the diligence in all requirements hereof; however, neither party shall be liable for any loss or damage for delay or nonperformance due to causes not reasonably within its control (e.g., acts of God, any natural catastrophe, fires, floods, earthquakes, tornadoes, war, hostilities, invasion, act of foreign or civil enemies, rebellion, terrorism, revolution, insurrection, riot, labor strike, freight embargoes, plague, epidemic, pandemic, quarantine, etc.). In the event of any delay resulting from such causes the time for performance and payment hereunder shall be executed for a period of time reasonably necessary to overcome the effect of such delays. In the event of any delay or nonperformance caused by such uncontrollable forces, the party affected shall promptly notify the other in writing of the nature, cause, date of commencement thereof and the anticipated extent of such delay and shall indicate whether it is anticipated that the completion dates would be affected thereby.

 

(f) Remedies: Each of the rights and remedies reserved to COTA in the Order shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by COTA in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by COTA shall be deemed to be a waiver of any such right or remedy.

 

(g) Publicity: Seller will not use COTA’s name or logo in publicity, advertising, or similar activity, except with COTA’s prior written consent. Seller will not disclose the existence of the Order or any of its respective terms to any third party without COTA’s prior written consent.

 

(h) Documentation: It is agreed that all technical documentation and other literature necessary for the proper use of the goods or services will be provided to COTA with the goods or services, unless otherwise directed by COTA, and its cost is included in the price.

 

(i) Governing law: The rights and duties of the parties hereto shall be determined by the laws of the State of Ohio, and to that end the Order shall be considered as a contract made and to be performed in the City of Columbus and the State of Ohio. Any dispute must be resolved in a court a court of competent jurisdiction in Franklin County, Ohio, according to Ohio law.

 

(j) Disputes: Except as otherwise provided in the Order, any dispute concerning a question of fact arising under the Order which is not disposed of by agreement shall be decided by COTA, which shall reduce its decision to writing and furnish a copy of same to Seller. COTA’s decision shall be final and conclusive unless, within fifteen business days from the date of such copy, Seller furnishes to COTA a written notice of appeal.

In the event COTA’s decision is the subject of an appeal, such dispute shall be settled by binding arbitration. Pending any binding arbitrative or administrative decision, appeal, or judgment referred to in this article for the settlement of any dispute arising under the Order, Seller shall proceed diligently with the performance of the Order.

 

(k) Survival: Seller’s obligations under Sections 6, 7, 8, 9, 10, 12, 13, and 18 (f), (i), (j), (k), (l), (o), and (q) will survive any termination of the Order.

 

(l) Waiver; modification: No claim or right arising out of a breach of the Order can be discharged in whole or in part by a waiver or renunciation of the claim or right unless supported by consideration and in a writing signed by the aggrieved party. The failure of COTA to enforce at any time or for any period of time any of the provisions hereof will not be construed to be a waiver of such provisions or of the right of COTA thereafter to enforce each and every such provision. The Order can be modified or rescinded only by a writing signed by authorized representatives from both parties.

 

(m) Notices: All notices, consents, waivers, and other communications required or permitted to be given pursuant to the Order, shall be in writing and shall be deemed to have been delivered either (i) on the delivery date, if personally delivered, or if delivered by confirmed e-mail, (ii) one (1) business day after delivery to any national overnight courier directing delivery on the next business day, receipt requested, or (iii) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, with adequate postage affixed thereto. All notices to COTA shall be sent to the Central Ohio Transit Authority (COTA) at 33 North High Street, Columbus, Ohio 43215-3076, to the attention of the Director of Supply Management, and to Seller at its address as set forth in the Order, or at such other address as either party may designate in writing to the other party.

 

(n) Severability: The parties agree that if any part, term, or provision of the Order or these terms is held by any court to be illegal, the validity of the remaining provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Order or these terms did not contain the provisions held to be invalid.

If any provision of the Order or these terms is in conflict with any federal law, rule or regulation or with any law, rule, regulation or statutory provision of the State of Ohio, the conflicting provision shall be deemed inoperative and null and void insofar as they may be in conflict and shall be deemed modified to conform to lawful provisions, so as to give them as much effect as legally possible.

 

(o) Paragraph titles: The paragraph titles are solely for convenience of reference and shall not affect the meaning or construction of any provision of the Order.

 

(p) Entire agreement: Provided that there is no written agreement, duly executed by both parties, applying to the transaction, the Order, with such documents as are expressly incorporated by reference, is intended by the parties as a final expression of their agreement with respect to such terms as are included in it, and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade will be relevant to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.

1. Disputes

Except as otherwise provided in the contract, any dispute concerning a question of fact arising under the contract which is not disposed of by agreement shall be decided by COTA, which shall reduce its decision to writing and mail or otherwise furnish a copy of same to Contractor. COTA’s decision shall be final and conclusive unless, within fifteen business days from the date of such copy, Contractor mails or otherwise furnishes to COTA a written notice of appeal.
In the event COTA’s decision is the subject of an appeal, such dispute shall be settled by binding arbitration. Pending any binding arbitrative or administrative decision, appeal, or judgment referred to in this article for the settlement of any dispute arising under the contract, Contractor shall proceed diligently with the performance of the contract.

2. Equal Employment Opportunity

COTA is an Equal Opportunity Employer. As such, COTA agrees to comply with all applicable Federal civil rights laws and implementing regulations. Apart from inconsistent requirements imposed by Federal laws or regulations, COTA agrees to comply with the requirements of 49 U.S.C. § 5323(h) (3) by not using any Federal assistance awarded by FTA to support procurements using exclusionary or discriminatory specifications.
Contractor shall at all times comply with the following requirements and shall include these requirements in each subcontract entered into as part thereof.
A) Nondiscrimination. In accordance with Federal transit law at 49 U.S.C. § 5332, Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, sex, disability, or age. In addition, Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue.
B) Race, Color, Religion, National Origin, Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq., and Federal transit laws at 49 U.S.C. § 5332, Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” 41 C.F.R. chapter 60, and Executive Order No. 11246, “Equal Employment Opportunity in Federal Employment,” September 24, 1965, 42 U.S.C. §2000e note, as amended by any
later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note. Contractor agrees to take affirmative action to ensure that applicants are employed,
and that employees are treated during employment, without regard to their race, color, religion, national origin, or sex (including sexual orientation and gender identity). Such action shall include, but not be limited to, the following: employment, promotion,
demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, Contractor agrees to comply with any implementing requirements FTA may issue.
C) Age. In accordance with the Age Discrimination in Employment Act, 29 U.S.C. §§ 621- 634, U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations, “Age Discrimination in Employment Act,” 29 C.F.R. part 1625, the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S. Health and Human Services regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, and Federal transit law at 49 U.S.C. § 5332, Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, Contractor agrees to comply with any implementing requirements FTA may issue. Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S. Health and Human Services regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, and Federal transit law at 49 U.S.C. § 5332, Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, Contractor agrees to comply with any implementing requirements FTA may issue.
D) Disabilities. In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., and Federal transit law at 49 U.S.C. § 5332, Contractor agrees that it will not discriminate against individuals on the basis of disability. In addition, Contractor agrees to comply with any implementing requirements FTA may issue.
E) Executive Order 11246 § 202 Concerning Government Contracts and Federally Assisted Construction Contracts
Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. During performance of the contract, Contractor agrees as follows:
(1) Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.
(2) Contractor will, in all solicitations or advertisements for employees placed by or on behalf of Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) Contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee’s essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with Contractor’s legal duty to furnish information.
(4) Contractor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers’ representative of Contractor’s commitments under section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The Contractor will comply with all provisions of Executive Order 11246 of September 24,1965, and of the rules regulations, and relevant orders of the Secretary of Labor.
Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to its books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
In the event of Contractor’s non-compliance with the nondiscrimination clauses of the contract or with any of such rules, regulations, or orders, the contract may be canceled, terminated or suspended in whole or in part and Contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
Contractor will include the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. Contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, Contractor may request the United States to enter into such litigation to protect the interests of the United States.

3. Disadvantaged Business Enterprise (DBE)

In accordance with 23 USC 101(b) and the U.S. Department of Transportation, DBE regulations, 49 CFR Part 26, it is the policy of COTA to utilize ready, willing, and able disadvantaged and small businesses and to use the best efforts possible to level the playing field in the marketplace ensuring these firms have the opportunity to participate in the procurement process. COTA is required by 49 CFR Part 26 to establish DBE goals annually. COTA has established race conscious and race neutral initiatives in the DBE annual and contract specific goals to provide opportunities in all procurement activities.
In cases where COTA does not establish a race conscious goal on a contract, COTA fully expects its prime Contractors to make good faith efforts to enter into subcontracts with DBEs and small businesses to the maximum extent possible to ensure that COTA meets its annual DBE goal requirement. Prime Contractors may not terminate a DBE subcontractor (or an approved substitute DBE firm) without COTA’s prior written consent. Prime Contractors must utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless Contractor obtains COTA’s written consent. Prime Contractors must give notice in writing to the DBE subcontractor, and COTA, of its intent to request termination and/or substitution, and the reason for the request. Prime Contractors must give the DBE five business days to respond to the notice. COTA will only provide such written consent if the prime Contractor has good cause to terminate the DBE firm. For purposes of this paragraph, good cause includes the following circumstances:
A) The listed DBE subcontractor fails or refuses to execute a written contract;
B) The listed DBE subcontractor fails or refuses to perform the work of its subcontract in a way consistent with normal industry standards. Provided, however, that good cause
does not exist if the failure or refusal of the DBE subcontractor to perform its work on the subcontract results from the bad faith or discriminatory action of the prime Contractor;
C) The listed DBE subcontractor fails or refuses to meet the prime Contractor’s reasonable, nondiscriminatory bond requirements.
D) The listed DBE subcontractor becomes bankrupt, insolvent, or exhibits credit unworthiness;
E) The listed DBE subcontractor is ineligible to work on public works projects because of suspension and debarment proceedings pursuant 2 CFR Parts 180, 215 and 1,200 or applicable state law;
F) You have determined that the listed DBE subcontractor is not a responsible Contractor;
G) The listed DBE subcontractor voluntarily withdraws from the project and provides to you written notice of its withdrawal;
H) The listed DBE is ineligible to receive DBE credit for the type of work required;
I) A DBE owner dies or becomes disabled with the result that the listed DBE Contractor is unable to complete its work on the contract;
J) Other documented good cause that you determine compels the termination of the DBE subcontractor. Provided, that good cause does not exist if the prime Contractor seeks to terminate a DBE it relied upon to obtain the contract so that the prime Contractor can self-perform the work for which the DBE Contractor was engaged or so that the prime Contractor can substitute another DBE or non-DBE Contractor after contract award.
If a DBE subcontractor is terminated, or fails to complete its work on the contract, the prime Contractor must make good faith efforts to find another DBE subcontractor.
Failure to comply with the requirements of this section regarding DBE is a material breach of the contract and may result in termination of the contract.

4. Contract Termination

COTA may, by written notice to Contractor, terminate the whole, or any part of, the contract.
A) Termination for Funding. Should funding for the contract be discontinued, COTA shall have the right to terminate the contract immediately upon written notice to Contractor.
B) Termination for Convenience (General Provision)
COTA may terminate the contract, in whole or in part, at any time by written notice to Contractor when it is in COTA’s best interest. Contractor shall be paid its costs, including contract close-out costs, and profit on work performed up to the time of termination. Contractor shall promptly submit its termination claim to COTA to be paid. If Contractor has any property in its possession belonging to COTA, Contractor will account for the same, and dispose of it in the manner COTA directs.
C) Termination for Default [Breach or Cause] (General Provision)
If Contractor does not deliver supplies in accordance with the contract delivery schedule, or if the contract is for services, Contractor fails to perform in the manner called for in the contract, or if Contractor fails to comply with any other provisions of the contract, COTA may terminate the contract for default. Termination shall be effected by serving a Notice of Termination setting forth the manner in which Contractor is in default. Contractor will be paid only the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract.
If it is later determined by COTA that Contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the control of Contractor, COTA, after setting up a new delivery of performance schedule, may allow Contractor to continue work, or treat the termination as a Termination for Convenience.
D) Opportunity to Cure (General Provision)
COTA, in its sole discretion may, in the case of a termination for breach or default, allow Contractor ten business days in which to cure the defect. In such case, the Notice of Termination will state the time period in which cure is permitted and other appropriate conditions
If Contractor fails to remedy to COTA’s satisfaction the breach or default of any of the terms, covenants, or conditions of the contract within ten business days after receipt by Contractor of written notice from COTA setting forth the nature of said breach or default, COTA shall have the right to terminate the contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude COTA from also pursuing all available remedies against Contractor and its sureties for said breach or default.
E) Waiver of Remedies for any Breach
In the event that COTA elects to waive its remedies for any breach by Contractor of any covenant, term or condition of the contract, such waiver by COTA shall not limit COTA’s remedies for any succeeding breach of that or of any other covenant, term, or condition of the contract.
F) Termination for Default (Transportation Services)
If Contractor fails to pick up the commodities or to perform the services, including delivery services, within the time specified in the contract or any extension, or if Contractor fails to comply with any other provisions of the contract, COTA may terminate the contract for default. COTA shall terminate by delivering to Contractor a Notice of Termination specifying the nature of default. Contractor will only be paid the contract price for services performed in accordance with the manner of performance set forth in the contract.
If the contract is terminated while Contractor has possession of COTA goods, Contractor shall, upon direction of COTA, protect and preserve the goods until surrendered to COTA. Contractor and COTA shall agree on payment for the preservation and protection of goods. Failure to agree on an amount will be resolved under the Dispute clause.
If, after termination of Contractor’s right to proceed, it is determined that Contractor was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of COTA.
G) Termination for Default (Construction)
If Contractor refuses or fails to execute the work or any separable part, with the diligence that will ensure its completion within the time specified in the contract or any extension or fails to complete the work within this time, or if Contractor fails to comply with any other provision of the contract, COTA may terminate the contract for default. COTA shall terminate by delivering to Contractor a Notice of Termination specifying the nature of the default. In this event, COTA may take over the work and compete it by contract or otherwise, and may take possession of and use any materials, appliances, and plant on the work site necessary for completing the work. Contractor and its sureties shall be liable for any damage to COTA resulting from Contractor’s refusal or failure to complete the work within specified time, whether or not Contractor’s right to proceed with the work is terminated. This liability includes any increased costs incurred by COTA in completing the work.
Contractor’s right to proceed shall not be terminated nor shall Contractor be charged with damages under this clause if:
1. The delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of Contractor. Examples of such causes can be found in the force majeure clause; and
2. Contractor, within ten business days from the beginning of any delay, notifies COTA in writing of the causes of delay. If, in the judgment of COTA, the delay is excusable, the time for completing the work shall be extended. The judgment of COTA shall be final and conclusive for the parties, but subject to appeal under the Disputes clause(s) of the contract.
If, after termination of Contractor’s right to proceed, it is determined that Contractor was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of COTA.
H) Termination for Convenience or Default (Architect and Engineering)
COTA may terminate the contract in whole or in part, for COTA’s convenience or because of the failure of Contractor to fulfill the contract obligations. COTA shall terminate by delivering to Contractor a Notice of Termination specifying the nature, extent, and effective date of the termination. Upon receipt of the notice, Contractor shall (1) immediately discontinue all services affected (unless the notice directs otherwise), and (2) deliver to COTA’s Contracting Officer all data, drawings, specifications, reports, estimates, summaries, and other information and materials accumulated in performing the contract, whether completed or in process. COTA has a royalty-free, nonexclusive, and irrevocable license to reproduce, publish or otherwise use, all such data, drawings, specifications, reports, estimates, summaries, and other information and materials.
If the termination is for the convenience of COTA, COTA shall make an equitable adjustment in the contract price but shall allow no anticipated profit on unperformed services.
If the termination is for failure of Contractor to fulfill the contract obligations, COTA may complete the work by contact or otherwise and Contractor shall be liable for any additional cost incurred by COTA.
If, after termination for failure to fulfill contract obligations, it is determined that Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of COTA.

5. Covenant Against Contingent Fees

Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by Contractor for the purpose of securing business.
Flows down to subcontractors
For breach or violation of this warranty, COTA shall have the right to annul the contract without liability or, at its discretion, to deduct from the contract price or consideration or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee.

6. Indemnifications

Contractor agrees that during the term of the contract, it shall defend, indemnify, and save harmless COTA, its officers, employees, agents, and Board of Trustees from any and all liability claims, suits, actions, damages, costs or other consequences resulting from any act, omission or negligence of, or chargeable to Contractor, or any employee thereof arising under and pursuant to the contract. COTA will not indemnify Contractor under the agreement; as a political subdivision of the State of Ohio, COTA is prohibited from indemnifying Contractors.

7. Laws of Ohio

The rights and duties of the parties hereto shall be determined by the laws of the State of Ohio, and to that end the contract shall be considered as a contract made and to be performed in the City of Columbus and the State of Ohio. Any dispute must be resolved in a court a court of competent jurisdiction in Franklin County, Ohio, according to Ohio law.

8. State Industrial Compensation

Contractor shall comply with the state law known as the Workers Compensation Act, Chapter 4123, Ohio Revised Code, or such similar statute in force in the jurisdiction in which the work is performed, and shall, if required, pay into the State Insurance Fund the necessary premiums required by that Act to cover all employees furnishing the services purchased under the terms of the contract and under the control of Contractor, and shall relieve COTA from any costs due to accidents or other liabilities, mentioned in said Act. If Contractor is a self-insurer under the Ohio Workers Compensation Act, and duly authorized as such by the Industrial Commission of Ohio, it shall tender to COTA proof of such status. Contractor shall tender to COTA a certificate evidencing its compliance with the Workers Compensation Act prior to contract execution.

9. Status of Contractor

Contractor shall be and remain an Independent Contractor with respect to all services performed hereunder and agrees to and does hereby accept full and exclusive liability for the payment of any and all contributions or taxes for Social Security, unemployment insurance, or retirement benefits, pensions, or annuities now or hereafter imposed under any state or federal law which are measured by the wages, salaries, or other remuneration paid to persons employed by Contractor on work performed under the terms of the contract and further agrees to obey all lawful rules and regulations and to meet all lawful requirements which are now or hereafter may be issued or promulgated under said respective laws by any duly authorized state or federal officials, and said Contractor also agrees to indemnify and save harmless COTA from any such contributions or taxes or liability therefore.
Contractor shall be and remain an Independent Contractor for all personal services supplied under the contract, if any. As an Independent Contractor, COTA does not consider Contractor a public employee and will not make contributions to the Ohio Public Employee Retirement System (OPERS) on Contractor’s behalf. If Contractor provides personal services under the contract, Ohio law requires that Contractor acknowledge, in writing, that it has been informed of its status as an Independent Contractor or other classification other than public employee for the services described in the contract and contributions to OPERS will not be made on Contractors behalf for these services.

10. Wage and Hour

All Contractors and subcontractors must compute wages based on a standard workweek of 40 hours. Work in excess of 40 hours must be paid at a rate not less than one and one-half times the basic rate of pay. Compliance with 40 USC Sec. 3702, 29 CFR Part 5, and 40 USC Sec 3701(B)(3)(A)(iii) is required of all Contractors and subcontractors.

11. Insurance

Contractor shall obtain and maintain for the life of the contract the following minimum insurance coverage. Such insurance shall protect COTA from claims which may arise out of or result from Contractor’s operations under the contract and for which Contractor may be legally liable, whether such operations be by COTA or by anyone employed directly or indirectly by them, or by anyone for whose acts any of them may be liable.
Approval of the insurance by COTA shall not relieve or decrease the liability of Contractor hereunder. It is to be understood that COTA does not in any way represent that the insurance or the limits of insurance specified herein are sufficient or adequate to protect Contractor’s interests or liabilities.
COTA reserves the right to request a copy of all policies and endorsements prescribed herein, Contractor shall provide copies of insurance policies and endorsements to COTA upon request.
A) Commercial General Liability (CGL) Insurance: in the amount of one million U.S dollars ($1,000,000.00) combined single limit each occurrence for bodily injury and/or property damage and with a one million U.S dollars ($1,000,000.00) annual aggregate. Policy to include:
• Contractual liability coverage insuring the “hold harmless” provision.
• COTA will accept any combination of primary CGL and Excess or Umbrella policies to meet the minimum coverage requirements above.
• Products / Completed Operations liability insurance: This insurance must be maintained for a period of not less than 5 years from the date of final payment.
B) Business Automobile Liability (BAL) Insurance: in the amount of one million U.S dollars ($1,000,000.00) combined single limit each accident for bodily injury and/or property damage. Said policy shall apply to all owned, leased, hired and non-owned vehicles used in connection with the work.
C) Statutory Workers’ Compensation Coverage: in compliance with all applicable state workers’ compensation laws to cover all employees furnishing labor under the terms of the contract and under the control of Contractor. Employers’ Liability coverage in the amount of one million U.S dollars ($1,000,000.00) per accident / one million U.S dollars ($1,000,000.00) per employee for disease will also be included, either under the Workers’ Compensation policy or under the Commercial General Liability policy (Stop Gap) referenced under a. above. In Ohio, a copy of a certificate of premium payment from the Industrial commission and Bureau of Workers Compensation, or a copy of the Certificate of Employer’s Right to Pay Compensation Directly.
D) Professional Liability / Errors & Omissions Insurance (If the Contract involves the receipt of confidential or personally identifiable information (PII)): in the amount of one million U.S dollars ($1,000,000.00) per claim. The definition of wrongful acts must be applicable to the work performed hereunder.
• If the Contract involves receipt of personally identifiable information (PII) or other confidential information, Contractor’s professional liability insurance must include cyber risk coverage, including network and internet security liability coverage, privacy liability coverage, and media coverage.
E) Contractor’s Pollution Liability Insurance (If the Contract could result in fumes, hazardous materials or other potential pollutant or if the Contract involves construction which could cause ground or air pollution): for bodily injury and property damage coverage with a combined single limit for bodily injury and property damage of one million U.S dollars ($1,000,000.00). This insurance shall include coverage for, but not be limited to, sudden and accidental discharges, gradual discharges, clean-up of pollutants and disposal thereof, as well as mold, asbestos and/or lead in an abatement contract. The policy must be maintained for a period of 2 years from contract completion or Contractor may satisfy this requirement with the purchase of a 2 year extended reporting period.
F) Cybersecurity Insurance: Contractor shall, at its own expense, at all times during the life of the Agreement procure and maintain in full force cybersecurity insurance covering cyber and network risks. Such insurance shall include, but not be limited to, coverage for: (a) liability arising from theft, dissemination and/or use of confidential information stored or transmitted in electronic form; (b) liability arising from the introduction of a computer virus into, or otherwise causing damage to, a customer’s or third person’s computer, computer system, network or similar computer related property and the data, software and programs stored thereon; and (c) ransomware attacks. Such insurance will be maintained with limits of no less than two million U.S dollars ($2,000,000.00) per claim and in the annual aggregate, and may be maintained on a stand-alone basis, or as cybersecurity insurance coverage provided as part of any professional liability insurance policy. Contractor shall maintain such coverage until the later of until Contractor has returned or destroyed all confidential information in its possession, care, custody or control, including any copies maintained for archival or record-keeping processes.
General Requirements: Contractor shall not commence work herein until it has obtained the required insurance and has received written approval of such insurance by COTA. Contractor shall furnish evidence of such insurance in the form of a certificate (accord or similar form). The certificate shall provide the following:
A) The policy should be written on an occurrence basis. If any insurance specified above is written on a “Claims Made” (rather than an “occurrence” basis), then, in addition, to the coverage requirements stated herein, Contractor shall:
• Ensure that the Retroactive Date is shown on the policy, and such date shall be before the date of the contract effective date or any work beginning under the contract.
• Maintain and provide evidence of similar insurance for at least three (3) years following project completion, including the requirement of adding all additional insureds; and
• If insurance is cancelled or non-renewed and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, Contractor shall purchase “extended reporting” coverage for a minimum of three (3) years after completion of the work.
B) Name COTA as an additional insured for all liability coverage above for claims arising out of operations in conjunction with the contract
C) Contain a waiver of subrogation in favor of COTA.
D) Specify that the insurance is primary and non-contributory as respects any insurance or self-insurance programs maintained by COTA.
E) Contain a specific reference to the subject contract.
F) Specify all deductibles & Self-Insured Retentions (SIR), as applicable.
G) In the event the insurance should be changed or cancelled, such change or cancellation shall not be effective until fifteen business days after COTA has received written notice of such change or cancellation from Contractor. Such notice shall be mailed by certified mail, return receipt requested, to COTA’s Director of Supply Management.
H) An insurance company having less than an excellent rating by The A. M. Best Company will not be considered acceptable. All certificates are subject to acceptance by COTA. The COTA shall be entitled to receive a full copy of the insurance policy(ies) upon request and reserves the right to review financial statements and approve any deductibles or SIR.

12. Compliance with Laws

Contractor agrees that it will comply with all federal, state, municipal and local laws, rules and regulations that may be applicable to the contract. The rights and duties of the parties hereto shall be determined by the laws of the State of Ohio, and to that end the contract shall be construed and considered as a contract made and to be performed in the State of Ohio.

13. Assignment

Contractor shall not assign, transfer, convey, subcontract, or otherwise dispose of the contract or his right, title to, interest in the contract or any part thereof without previous consent in writing of COTA endorsed hereon or attached hereto. If Contractor does not obtain consent in writing from COTA prior to assignment of the contract, any such assignment shall be considered void.

14. Notification of Material Changes in Business

Contractor agrees that if it experiences any material changes in its business including, without limitation, a reorganization, refinancing, restructuring, leveraged buyout, bankruptcy, loss of key personnel, etc., it agrees to immediately notify COTA’s Director of Supply Management of the changes. Contractor also agrees to immediately notify the Director of Supply Management of any condition which may jeopardize the scheduled delivery or fulfillment of Contractor’s contractual obligations to COTA.

15. FTA Notification of Legal Matters that May Affect the Federal Government

Contractor must give reasonable notice to COTA and to the FTA Chief Counsel or FTA Regional Counsel of any current or prospective legal matters that may affect the Federal government. The types of legal matters that require notification include, but are not limited to, a major dispute, breach, default, litigation, or naming of the Federal government as a party to litigation or a legal disagreement in any forum for any reason.
Contractor is responsible for ensuring that subcontractors comply with this requirement.

16. Manner of Performance

Contractor represents that it has the requisite expertise, ability and legal right to render the services and will perform the services in an efficient manner. Each of Contractor’s employees, agents, and representatives performing services will have the expertise to perform assigned services in an efficient manner.

17. Confidentiality

In the course of the Agreement, it is anticipated that Contractor will learn information that COTA regards as confidential or proprietary. Contractor will keep confidential this information and any other information which Contractor may acquire with respect to COTA’s business, unless and until COTA consents to disclosure, or unless such knowledge and information otherwise becomes generally available to the public through no fault of Contractor.

18. Duty to Inform

If at any time during the performance of the contract, Contractor becomes aware of actual or potential problems, fault or defect in the project or any nonconformance with any contract document, State, or local law, rule, or regulation, Contractor shall give immediate written notice thereof to COTA’s Director of Supply Management.

19. Data Breach Notification Procedures

In the event of a data breach that includes loss or potential loss of COTA’s customers and employee’s personal identification information, Contractor is required to notify COTA as expediently as possible or practicable, without unreasonable delay, but no later than five business days from the determination of a breach unless law enforcement agencies request a delay (O.R.C. 1347.12(B)(2), (D) and 1349.19(B)(2), (D). The notification must be in writing and must contain: the date of the notice; a description of the incident; the date or date range of the breach; a description of the actions Contractor is taking to contain or remedy the breach; the type of personal information affected; whether notification was delayed due to a law enforcement investigation; and, advice to the consumer to be vigilant and on how to protect themselves from fraud.

20. Changes in the Work

COTA may at any time, by a written order, and without notice to sureties, if any, make changes within the general scope of the Agreement. Such change shall serve to modify the Agreement to the extent necessary to execute the change as directed. If any such change causes an increase or decrease in the cost of, or the time required for, the performance of any part of the Services under the Agreement, whether changed or not changed by the order, COTA shall make an equitable adjustment in the contract price, the delivery schedule, or both, and shall modify the Agreement accordingly. The Contractor must assert its right to an adjustment under this article within three business days from the date of receipt of the written order.
Failure by Contractor to give timely notice of the change could constitute waiver of a claim for an equitable adjustment. However, if COTA decides that the facts justify it, COTA may receive and act upon a proposal submitted at any time before final payment of the Agreement. If the Contractor’s proposal includes the cost of equipment or materials made obsolete or excess by the change, COTA shall have the right to prescribe the manner of the disposition of such equipment or materials. Failure to agree to any adjustment shall be a dispute under the Disputes section. However, nothing in this provision shall excuse the Contractor from proceeding with the Agreement as changed.

21. Prohibited Interest

No member, officer, trustee, or employee of COTA, or of a local public body during his/her tenure or one year thereafter shall have any interest direct or indirect, in the contract or the proceeds thereof.

22. Payment

COTA shall be invoiced within thirty (30) calendar days upon receipt and written acceptance by COTA of the services and products provided within the contract at the prices set forth in Contractor’s offer. Invoice shall include a statement identifying quantity, description and cost of each service purchased, as well as any other detail necessary to determine the reasonableness of the subject invoice.
Late payments will accrue no interest. Payment will only be made for goods and services accepted. When acceptance is later revoked prior to payment, payment will be withheld until defects in the nonconforming goods or services are cured and accepted. In the case of serial deliveries and serial invoicing, COTA reserves the right to deduct overpayments from current invoice amounts. Payment does not constitute acceptance, nor does it serve to waive a later revocation of acceptance.
COTA is exempt from all sales, excise and transportation taxes, except State of Ohio gasoline tax. The price or prices bid, whether a unit price, lump sum price, lot price or a trade discount from catalog list prices shall be exclusive of all such taxes and will be so construed.

23. Ownership of Documents

COTA retains ownership of all plans, specifications, and related documents.

24. Patents

Contractor shall pay all royalties and license fees attributable to the use of goods, materials, equipment or process use to perform its obligations under the agreement, and, if it cannot timely secure the right for COTA to use them, it shall provide COTA equivalent non-infringing replacements at no additional cost. Contractor agrees to defend and hold harmless COTA from and against all claims of infringement.
Contractor agrees to include these requirements in each subcontract for experimental, developmental, or research work financed in whole or in part with Federal assistance.

25. Use of COTA Intellectual Property

As independent Contractors, Contractor does not have the right, without COTA’s written consent, to use the COTA’s logo or registered mark COTA retains ownership of its own trademarks, licenses, patents, and trade secrets.

26. Use of Contractor Intellectual Property

(for experimental, developmental, or research work purposes)

Contractor shall grant COTA intellectual property access and licenses deemed necessary for the work performed under the Agreement and in accordance with the requirements of 37 C.F.R. part 401, and any implementing regulations issued by FTA or U.S. DOT. Intellectual property and licenses established before the consummation of the contract will remain in the full possession of Contractor. Contractor shall grant COTA intellectual property access and licenses deemed necessary for the work performed under the Agreement and in accordance with the requirements of 37 C.F.R. part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by FTA or U.S. DOT. The terms of an intellectual property agreement and software license rights shall, at a minimum, include the following restrictions: Except for its own internal use, Contractor may not publish or reproduce subject data in whole or in part, or in any manner or form, nor may Contractor authorize others to do so, without the written consent of FTA, until such time as FTA may have either released or approved the release of such data to the public. This restriction on publication, however, does not apply to any contract with an academic institution. For purposes of the agreement, the term “subject data” means recorded information whether or not copyrighted, and that is delivered or specified to be delivered as required by the Contract. Examples of “subject data” include, but are not limited to computer software, standards, specifications, engineering drawings and associated lists, process sheets, manuals, technical reports, catalog item identifications, and related information, but do not include financial reports, cost analyses, or other similar information used for performance or administration of the Contract.

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

27. Warranty

Contractor warrants that all service performed hereunder will be performed in a good, professional, and competent manner; to the degree of efficiency and knowledge which is possessed by those of ordinary skill, competency, and standing in the particular trade or business for which Contractor is employed; and in conformity with all applicable professional standards and requirements of the contract.
In addition to its standard warranty and/or service guarantee, Contractor warrants that all goods supplied hereunder shall:
A) Be free and clear of all liens and encumbrances, good and merchantable title thereto being in Contractor,
B) Be free from any defects in design, material and of good and merchantable quality,
C) Conform to COTA’s specifications or the sample approved by COTA, as the case may be, or be fit for the known purpose for which purchased hereunder; and
D) Comply and have been produced, processed, delivered and solid in conformity with all applicable federal, state or other laws, administrative regulations and orders, including the Fair Labor Standards Act of 1938 and the Walsh-Healy Public Contracts Act. Contractor agrees to furnish Buyer with satisfactory evidence of compliance with any such laws, ordinances or regulations.
E) Do not infringe any United States or Foreign letters patent, trademark of copyright, and Contractor agrees to defend, protect or save harmless COTA, its successor, assigns, customers and users of its products, against all suits at law or in equity, and from all damages and expenses resulting from claims and demands for actual or alleged infringement of any patent, trademark or copyright by reason of the sale or use of the articles hereby. COTA reserves the right to control or participate in any such patent infringement action brought against it.
The foregoing warranties shall survive inspection, delivery and payment.

28. Liquidated Damages

The following acts by Contractor will cause COTA to suffer actual damages that will be impractical or extremely difficult to determine:
• Services provided in contract are delayed beyond the scheduled milestones and timelines as provided in the Agreement. COTA has made a good faith and reasonable estimate of damages it would suffer from delay in completion. Contractor agrees that the sum of [total contract cost, divided by the expected days to complete] per calendar day for each day of delay beyond scheduled milestones and timelines is not a penalty but is a reasonable estimate of the loss that COTA will incur based on the delay, established in light of the circumstances existing at the time the Agreement was agreed upon.
COTA may deduct a sum representing the liquidated damages from any money due to Contractor under the Agreement or any other contract between COTA and Contractor.
• Goods delivered in contract are delayed beyond the scheduled milestones and timelines as provided in the Agreement. COTA has made a good faith and reasonable estimate of damages it would suffer from delay in delivery of goods. Contractor agrees that the sum of [$.025 per $1,000 in total contract cost, up to $.05 per $1,000 in total contract cost] per calendar day of delay beyond scheduled milestones and timelines is not a penalty but is a reasonable estimate of the loss COTA will incur based on the delay, established in light of the circumstances existing at the time the Agreement was agreed upon. COTA may deduct a sum representing the liquidated damages from any money due to Contractor under the Agreement or any other contract between COTA and Contractor.

29. Prompt Payment

Notwithstanding any other payment clause in the contract, COTA will make invoice payments under the terms and conditions specified in this clause. Payment shall be considered as being made on the day a check is dated or on the date of an electronic funds transfer. Prime Contractors are required to pay subcontractors within fifteen business days from receipt of payment from COTA.
Prime Contractors are required to include prompt payment provisions in their contracts with subcontractors. Any delay or postponement of payment may only take place for good cause, with prior approval from COTA’s Director of Supply Management. When payment disputes occur, prime Contractors and subcontractors will be required to use appropriate Alternative Dispute Resolution (ADR) mechanisms to settle disputes. COTA will participate in the resolution if necessary.
Failure to comply with prompt payment requirements will be considered as breach of contract and will cause the following to occur:
A) COTA will not reimburse prime Contractors for work performed by subcontractors unless and until the prime Contractor ensures that the subcontractors are promptly paid for the work they have performed.
B) COTA will not award future contracts to prime Contractors who refuse to pay promptly.

30. Force Majeure

Performance of the contract shall be pursued with the diligence in all requirements hereof; however, neither party shall be liable for any loss or damage for delay or nonperformance due to causes not reasonably within its control (e.g., acts of God, any natural catastrophe, fires, floods, earthquakes, tornadoes, war, hostilities, invasion, act of foreign or civil enemies, rebellion, terrorism, revolution, insurrection, riot, labor strike, freight embargoes, plague, epidemic, pandemic, quarantine, etc.). In the event of any delay resulting from such causes the time for performance and payment hereunder shall be executed for a period of time reasonably necessary to overcome the effect of such delays. In the event of any delay or nonperformance caused by such uncontrollable forces, the party affected shall promptly notify the other in writing of the nature, cause, date of commencement thereof and the anticipated extent of such delay and shall indicate whether it is anticipated that the completion dates would be affected thereby.

31. Severability

The parties agree that if any part, term, or provision of the agreement is held by any court to be illegal, the validity of the remaining provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the agreement did not contain the provisions held to be invalid.
If any provision of the agreement is in conflict with any federal law, rule or regulation or with any law, rule, regulation or statutory provision of the State of Ohio, the conflicting provision shall be deemed inoperative and null and void insofar as they may be in conflict and shall be deemed modified to conform to lawful provisions, so as to give them as much effect as legally possible.

32. Extent of Agreement

The contract contains all the terms and conditions agreed upon by the parties. Any other understandings, oral or otherwise, regarding the subject matter of the contract shall not bind any of the parties hereto unless they are in writing and are incorporated into the agreement, including terms and conditions.

33. Excusable Delays

A) Except for defaults of subcontractors at any tier, Contractor shall not be in default because of any failure to perform the contract under its terms if the failure arises from unforeseeable causes beyond the control and without the fault or negligence of Contractor. (e.g., strikes, extreme weather, etc.)
In each instance, the failure to perform must be beyond the control and without the fault or negligence of Contractor. “Default” includes failure to make progress in the work so as to endanger performance.
B) If the failure to perform is caused by the failure of a subcontractor at any tier to perform or make progress, and if the cause of the failure was beyond the control of both Contractor and Subcontractor, and without the fault or negligence of either, Contractor shall not be deemed to be in default, unless-
• The subcontracted supplies or services were obtainable from other sources
• The Director of Supply Management ordered Contractor in writing to purchase these supplies or services from the other source; and
• Contractor failed to comply reasonably with this order.
C) Upon request of Contractor, the Director of Supply Management shall ascertain the facts and extend of the failure. If the Director of Supply Management determines that any failure to perform results from one or more of the causes above, the delivery schedule shall be revised, subject to the rights of COTA under the termination clause of the contract.

34. Inspection

COTA reserves the right and shall be at liberty to inspect all materials and work to determine whether they conform with the specifications provided. However, COTA is under no duty to make such inspection. Whether or not COTA conducts an inspection, no such inspection shall relieve Contractor of any obligation to furnish materials and work strictly in accordance with the specifications. COTA will receive conforming deliveries for purposes of inspection. Acceptance of goods and services will not occur until after inspection or until a reasonable time for inspection has elapsed. Acceptance of materials or work that do not meet the specifications does not act as a waiver of the specification requirements for future materials or work. The risk of loss shall remain with Contractor until acceptance.

35. Non-Discrimination Assurance

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

1. Nondiscrimination. In accordance with Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for A-26 employment because of race, color, religion, national origin, sex, disability, or age. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue.
2. Race, Color, Religion, National Origin, Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq., and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor,” 41 C.F.R. chapter 60, and Executive Order No. 11246, “Equal Employment Opportunity in Federal Employment,”
September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, national origin, or sex (including sexual orientation and gender identity). Such action shall include, but not be limited to, the following: employment, promotion, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.
3. Age. In accordance with the Age Discrimination in Employment Act, 29 U.S.C. §§ 621- 634, U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations, “Age Discrimination in Employment Act,” 29 C.F.R. part 1625, the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S. Health and Human Services regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.
4. Disabilities. In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C. § A-27 4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against individuals on the basis of disability. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.
Contractor and subcontractor shall not discriminate on the basis of race, age, disability, color, national origin, or sex in the performance of the contract in accordance with the following Federal Statutes and regulations, and any other implementing regulations issued pursuant to the: Civil Rights Act as amended, Titles VI (42 U.S.C. 2000d) and VII (42 U.S.C. 2000e); Age Discrimination Act of 1975, as amended (42 U.S.C. 6102); Age Discrimination in Employment Act of 1967 as amended, (29 U.S.C. 623); Americans with Disabilities Act of 1990, as amended, (42 U.S.C. 12132 and 42 U.S.C. Sec. 12112) and implementing regulations (29 C.F.R. Part 1630), Federal transit law (49 U.S.C. 5332); Executive Order 11246, as amended by Executive Order 11375 (42 U.S.C. 2000e note) and implementing regulations (41 C.F.R. Parts 60 et seq.). Failure to carry out these requirements is a material breach of the contract which may result in the termination of the contract or such other remedy as COTA deem appropriate, including, but not limited to:
• Withholding monthly progress payments;
• Assessing sanctions;
• Liquidated damages; and/or
• Disqualifying Contractor from future bidding, as non-responsible.
This clause must also be included in Contractor’s subcontract agreements.
For capital projects funded, in whole or in part, with federal funds, Contractor shall give a hiring preference, to the extent practicable, to veterans (as defined in section 2108 of title 5 of the Unites States Code) who have the requisite skills and abilities to perform the construction work required under the contract. This provision does not require Contractor to give preference to any veteran over any equally qualified applicant who is a member of any racial or ethnic minority, female, an individual with a disability, or former employee.

36. Incorporation of Federal Transit Administration (FTA) Terms

These provisions include, in part, certain Standard Terms and Conditions required by the Department of Transportation (DOT), whether or not expressly set forth in the contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1F, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in the Agreement. Contractor shall not perform any act, fail to perform any act, or refuse to comply with any COTA requests which would cause COTA to be in violation of the FTA terms and conditions.
Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Grant Agreement(s) between COTA and the FTA as they may be amended or promulgated from time to time during the term of the contract. Contractor’s failure to comply shall constitute a material breach of the contract.
Each and every clause required by Federal or State statute or regulation to be inserted into the contract is deemed to be inserted herein and the contract shall be read and enforced as though it were included herein. If through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the application by either party the Agreement shall forthwith be amended to make such insertion or correction.

37. Energy Conservation

Contractor and all of its subcontractors shall recognize mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (42 USC Section 6321, et seq.). Contractor and all of its subcontractors further agree to comply with the requirements of Section 6002 of the Resource Conservation and Recovery Act, as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, 49 CFR part 622, and Executive Order 12873, as they apply to the subject matter of the contract.

38. No Government Obligation To Third Parties

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

39. Program Fraud and False or Fraudulent Statements and Related Acts

Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, “Program Fraud Civil Remedies,” 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which the contract work is being performed. In addition to other penalties that may be applicable, Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on Contractor to the extent the Federal Government deems appropriate.
Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 53, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5323(l) on Contractor, to the extent the Federal Government deems appropriate.
If Contractor suspects or has knowledge of unethical, improper and/or fraudulent acts by COTA personnel, including, but not limited to, conflicts of interest, bribery, fraud, waste, abuse, extortion, and kickbacks, Contractor shall contact the COTA Manger of Compliance Audits or Senior Legal Counsel, Corporate Compliance.
Contractor agrees to include the above three clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions.

40. Cybersecurity & Information Security Program Planning and Testing

Contractor is required to possess and maintain a Business Continuity Policy & Plan (including software escrow which allows for COTA to resume use of services under the Agreement within a reasonable time period after a service interruption), Incident Response Policy & Plan, and a Disaster Recovery Policy & Plan at all times during the life of the Agreement. The listed Policies & Plans should be tested at least once every 18 months.
In the event of business disruption that materially impacts Contractor’s provision of service under the Agreement, Contractor will notify COTA of the disruption and the steps being implemented under the business continuity plan. If COTA reasonably determines that Contractor has not or cannot put its disaster recovery plan in place quickly enough to meet COTA’s needs or is otherwise unable to provide equal access to such services, Contractor will promptly provide reasonable assistance and support to COTA in seeking such services from an alternative source.
Contractor must develop and maintain a Technology Roadmap that includes but is not limited to: short, intermediate, and long-term goals; current and future system capabilities; release plans for upcoming tools; milestones; risk factors or potential roadblocks; and, status reports and reviews.

41. Access to Records and Reports

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

42. Right to Audit

Contractor shall maintain books, records, documents, and other evidence directly pertinent to the performance of the work under the contract in accordance with generally accepted accounting principles and practices consistently applied and Federal Acquisition Regulations, Parts 30 and 31, as applicable. COTA and its authorized representatives shall have the right to audit, to examine and to make copies of or extracts from all financial and related records (in whatever form they may be kept, whether written, electronic, or other) relating to or pertaining to the contract kept by or under the control of Contractor, including, but not limited to those kept by Contractor, its employees, agents, assigns, successors and subcontractors. Such records shall include, but not be limited to, accounting records, written policies and procedures (including cybersecurity and information security program policies, plans,); cybersecurity test results (including internal testing of policies and procedures; and external tests – SOC reports, Penetration tests, etc.) subcontract files; all paid vouchers including those for out-of-pocket expenses; other reimbursement supported by invoices; ledgers; cancelled checks; deposit slips; bank statements; journals; original estimates; estimating work sheets; contract amendments and change order files; back charge logs and supporting documentation; insurance documents; payroll documents; timesheets; memoranda; and correspondence.
Contractor shall, at all times during the term of the contract and for a period of three (3) years after the completion of the contract, maintain such records, together with such supporting or underlying documents and materials. Contractor shall at any time requested by COTA, whether during or after completion of the contract, and at Contractor’s own expense make such records available for inspection and audit (including copies and extracts of records as required) by COTA. Such records shall be made available to COTA during normal business hours at Contractor’s office or place of business. If no such location is available, then the financial records, together with the supporting or underlying documents and records, shall be made available for audit at a time and location that is convenient for COTA. Contractor shall ensure COTA has these rights with Contractor’s employees, agents, assigns, successors, and subcontractors, and the obligations of these rights shall be explicitly included in any subcontracts or agreements formed between Contractor and any subcontractors to the extent that those subcontracts or agreements relate to fulfillment of Contractor’s obligations to COTA. If the audit discovers substantive findings related to fraud, misrepresentation, or non- performance, COTA may recoup the costs of the audit work from Contractor. Any adjustments and/or payments that must be made as a result of any such audit or inspection of Contractor’s invoices and/or records shall be made within a reasonable amount of time (not to exceed 90 calendar days) from presentation of COTA’s findings to Contractor.

43. Documents and Records (Paper and Electronic)

Documents and records, including electronic records, created and maintained by Contractor under the contract may be subject to the Ohio Public Records Act, Ohio Rev. Code § 149.43 et seq. Contractor shall maintain all documents and records related to the contract, including electronic records, in accordance with COTA’s records retention policy and schedule. Under that policy, contracts are retained for seventeen (17) years. Prior to destruction of any documents or records related to the contract, Contractor shall comply with the provisions of COTA’s records retention policy relating to destruction of records.
To the extent that Contractor becomes aware of actual or potential litigation related to the contract, Contractor shall immediately notify the Authority’s Senior Associate Legal Counsel. Contractor shall preserve any and all records, including electronic records, created or maintained under the contract until advised by the COTA Legal Department, in writing, that they are no longer needed. Any suspension issued under this paragraph shall supersede any previously or subsequently established destruction schedule for such records.

44. Fly America

A) Definitions. As used in this clause—
• “International air transportation” means transportation by air between a place in the United States and a place outside the United States or between two places both of which are outside the United States.
• “United States” means the 50 States, the District of Columbia, and outlying areas.
• “U.S.-flag air carrier” means an air carrier holding a certificate under 49 U.S.C. Chapter 411.
B) When Federal funds are used to fund travel, Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 40118) (Fly America Act) requires Contractors, recipients, and others use U.S.-flag air carriers for U.S. Government- financed international air transportation of personnel (and their personal effects) or property, to the extent that service by those carriers is available.
C) It requires the Comptroller General of the United States, in the absence of satisfactory proof of the necessity for foreign-flag air transportation, to disallow expenditures from funds, appropriated or otherwise established for the account of the United States, for international air transportation secured aboard a foreign-flag air carrier if a U.S.-flag air carrier is available to provide such services.
D) If available, Contractor, in performing work under the contract, shall use U.S.- flag carriers for international air transportation of personnel (and their personal effects) or property.
E) In the event that Contractor selects a carrier other than a U.S.-flag air carrier for international air transportation, Contractor shall include a statement on vouchers involving such transportation essentially as follows:
Statement of Unavailability of U.S.-Flag Air Carriers
International air transportation of persons (and their personal effects) or property by U.S.-flag air carrier was not available or it was necessary to use foreign-flag air carrier service for the following reasons. See FAR § 47.403. [State reasons]:(End of statement)
F) Contractor shall include the substance of this clause, including this paragraph (e), in each subcontract or purchase under the contract that may involve international air transportation.

45. Buy America

If any steel, iron, or manufacture products are acquired for use in construction projects under the agreement, they must be produced in the United States, unless the FTA has granted a waiver under 49 U.S.C. § 5232(j). For rolling stock (including train control, communication, traction power equipment, and rolling stock prototypes), the cost of components and subcomponents produced in the United States must be more than 70 percent of the cost of all components of the rolling stock.
Contractor is responsible for ensuring that subcontractors comply with this requirement.

46. Lobbying Restrictions

If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the agreement, the payor must complete and submit the Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
Contractor is responsible for ensuring that subcontractors comply with this requirement.

47. Shipments

Should equipment, materials or commodities provided hereunder be transported by ocean vessel, Seller must ensure compliance with 46 U.S.C. § 55303 and Maritime Administration regulations, “Cargo Preference U.S. Flag Vessels,” 46 CFR Part 381, implementing the codified Cargo Preference Act. Should persons acting pursuant to the contract, equipment, materials or commodities provided hereunder be transported by air carrier, Seller shall comply with 41 CFR Sections 301-10.131 through 301-10.143.
Contractor is responsible for ensuring that subcontractors comply with this requirement.

48. Debarment, Suspension, Ineligibility And Voluntary Exclusion

Contractor shall comply and facilitate compliance with U.S. DOT regulations, “Non-procurement Suspension and Debarment,” 2 C.F.R. part 1200, which adopts and supplements the U.S. Office of Management and Budget (U.S. OMB) “Guidelines to Agencies on Government-wide Debarment and Suspension (Non-procurement),” 2 C.F.R. part 180. These provisions apply to each contract at any tier of twenty-five thousand U.S dollars ($25,000.00) or more, and to each contract at any tier for a federally required audit (irrespective of the contract amount), and to each contract at any tier that must be approved by an FTA official irrespective of the contract amount. As such, Contractor shall verify that its principals, affiliates, and subcontractors are eligible to participate in this federally funded contract and are not presently declared by any Federal department or agency to be:
a) Debarred from participation in any federally assisted Award;
b) Suspended from participation in any federally assisted Award;
c) Proposed for debarment from participation in any federally assisted Award;
d) Declared ineligible to participate in any federally assisted Award;
e) Voluntarily excluded from participation in any federally assisted Award;
f) Disqualified from participation in ay federally assisted Award.

49. Safe Operations of Motor Vehicles

A. Seat Belt Use. Contractor is encouraged to adopt and promote on-the-job seat belt use policies and programs for its employees and other personnel that operate company-owned vehicles, company-rented vehicles, or personally operated vehicles pursuant to Federal Executive Order No. 13043. The terms “company-owned” and “company-leased” refer to vehicles owned or leased either by Contractor or COTA.
B. Distracted Driving. Contractor agrees to adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers, including policies to ban text messaging while using an electronic device supplied by an employer, and driving a vehicle the driver owns or rents, a vehicle Contractor owns, leases, or rents, or a privately-owned vehicle when on official business in connection with the work performed under the agreement

50. Substance Abuse Requirements

Contractors who perform safety-sensitive functions must comply with FTA’s substance abuse management program under 49 C.F.R. part 655, “Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations.”
Safety-sensitive function means any of the following duties, when performed by employees of recipients, subrecipients, operators, or contractors:
1. Operating a revenue service vehicle, including when not in revenue service;
2. Operating a nonrevenue service vehicle, when required to be operated by a holder of a Commercial Driver’s License;
3. Controlling dispatch or movement of a revenue service vehicle;
4. Maintaining (including repairs, overhaul and rebuilding) a revenue service vehicle or equipment used in revenue service.
5. Carrying a firearm for security purposes.
Contractor is responsible for ensuring that subcontractors comply with this requirement.

51. Clean Air Act and Federal Water Pollution Control Act

Where the price of the procurement exceeds one hundred thousand U.S. dollars ($100,000.00), Contractor agrees to comply with the requirements of the Clean Water Act and the Clean Air Act, 33 U.S.C. 1251 et seq. and 42 U.S.C. 7401 seq., respectively. Contractor agrees to report and require each subcontractor at any tier to report any violation of these requirements resulting from any implementation activity of a subcontractor or itself to FTA and the appropriate U.S. EPA Regional Office.
Contractor is responsible for ensuring that subcontractors comply with this requirement.

52. Seismic Safety

(Contracts for the construction of new buildings or additions to existing buildings)

Contractor agrees that any new building or addition to an existing building will be designed and constructed in accordance with the standards for Seismic Safety required in Department of Transportation (DOT) Seismic Safety Regulations 49 C.F.R. part 41 and will certify to compliance to the extent required by the regulation. Contractor also agrees to ensure that all work performed under the contract, including work performed by a subcontractor, is in compliance with the standards required by the Seismic Safety regulations and the certification of compliance issued on the project.
Contractor is responsible for ensuring that subcontractors comply with this requirement.