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HomeMy WebLinkAbout1997-118ORDINANCE NO AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE THE FIRST AMENDMENT TO AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND SPAN, INC, RELATING TO PUBLIC TRANSPORTATION IN THE CITY, AUTHORIZING THE EXPENDITURE OF FUNDS AS PROVIDED IN THE AGREEMENT, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the Mayor is authorized to execute the First Amendment to the Agreement between the City of Denton and Span, Inc, relating to public transportation in the City, such agreement as amended is attached hereto and made a part of this ordinance for all purposes SECTION II That the City is hereby authorized to make expenditures as may be required under this agreement as amended SECTION III That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this 45"� of_, 1997 9-t,/Ll�lLi..-� LLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY T \W PDOMORDWAN DOC 1" AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND SPAN, INC. The Agreement entered into by and between the City of Denton, Texas, a Home Rule Municipal Corporation, (hereinafter referred to as City) and SPAN. INC (herein after referred to as Agency) on July 18, 1995 is hereby amended so that hereafter same shall read as follows, and WHEREAS, the City Manager has determined that the Agency is the transportation provider for the City and provides a needed service to citizens of the City and the City Council has provided for funds in its budget for the purpose of paying for contractual services as well as providing for eligible Federal Transit Administration funds, and WHEREAS, the City has received grants from the Federal Transit Administration and the Texas Department of Transportation to provide public transportation in the Denton urbanized area and wishes to contract with SPAN. INC. to provide such services, NOW, THEREFORE, the parties hereto mutually agree as follows I. The Agency shall in a satisfactory and proper manner perform the following Project undertake and complete the Project, and provide for the use of the Project facilities or equipment, substan- tially as described in City's Application for Federal funding, which is incorporated herein by reference, filed with and approved by the U S Government, and in accordance with the terms and conditions of tlus Agreement, including A Providing transportation within the city limits during the hours of 6 00 a in to 7 00 p in , Monday through Friday and Saturdays from 9 00 a in to 3 00 p m except on holidays observed for New Year's Day, Martin Luther King, Jr Day, Memorial Day, Independence Day, Thanksgiving Day, day after Thanksgiving Day, Christmas Eve, and Christmas Day B Charging a fee to each passenger with a disability One Dollar and Fifty Cents ($1 50) for every one-way trip on the demand response system provided to that passenger C Providing transportation services within the city limits to the general public on four fixed routes, as outlined in Section I A hereof, for seventy-five ($ 75) for each one way trip, with a free transfer D Charging a fee to each person 60 years of age and older and all persons with disabilities eligible under the "Americans with Disabilities Act" no more than half price fare on the public fixed route system AAA032AD E Before amending its fares, Agency shall send notice to City informing it of the proposed amendment The City shall consider whether it shall approve the amendment If the City does not take action to approve or disapprove the proposed fare within 60 days, it shall be deemed to have approved the proposed fare F Agency may contract with other persons or companies in accordance with the terms and conditions of this agreement to provide the services specified herein during tunes when Agency does not operate Transportation services provided by such subcontractees shall be in accordance with the terms and conditions of this Agreement H. OBLIGATIONS OF AGENCY In consideration of the receipt of funds from the City, Agency agrees to the following terms and conditions A It will establish a separate bank account for deposit of funds paid to the Agency by the City and the only expenditures from this account, until such tune as said funds are exhausted, shall be for those expenses listed in the scope of services as provided for herein Agency shall not commingle funds received from other sources in this account and shall not utilize these funds for any other purpose B It will establish, operate, and maintain an account system for this program that will allow for a tracing of funds and a review of the financial status of the project and will permit authorized officials for the City of Denton to review its books at any time C It will comply with all federal statutes and regulations promulgated thereunder applicable to the Agency D It will comply with all provisions of the current annual contract between the City and State Department of Transportation, approved by the City of Denton on November 5, 1996 E It will reduce to writing all of its rules, regulations and policies, such as drug testing, training procedures, grievance policies, and compliance with the Americans with Disabilities Act, and file a copy with the City Manager or authorized representative along with any amendments, additions, or revisions whenever adopted F It will not enter into any contracts that would encumber the City funds for a period that would extend beyond the term of this Agreement G At the discretion of the City, the Agency may be required to refund the balance of the special account to the City of Denton at the end of the Agency's fiscal year H It will promptly pay all bills when submitted unless ther any errors or discrepancies in bills shall be promptly reported to Finance or their authorized representative for further direction AAA032AD e is a discrepancy in a bill, the Executive Director of I It will appoint a representative who will be available to meet with the Executive Director of Finance and other City officials when requested J It will indemmfy and hold harmless the City from any and all claims and suits arising out of the activities of the Agency, its employees, or contractors and save and hold the City harmless from all liability, including costs, expenses and attorneys fees, for or on account of, any claims, audit exceptions, suits, or damages of any character whatsoever resulting in whole or in part from the performance or omission of any act of any employee, agent or representative of the Agency, whether or not such claim arises from the sole negligence of City K It will submit to the City copies of year-end audited financial statements in accordance with the provisions hereof It shall also submit to the City an annual report to include year-end statistics of the number of riders, fixed route by route, final financial data and other quantitative data enumerating milestones and accomplishments The information in these reports should be as of September 30, 1996, 1997 and 1998, and should be submitted to the City no later than November 15, 1996, 1997 and 1998 L It will maintain liability insurance in amounts not less than the statutorily required worker's compensation insurance, $500,000 in automobile liability insurance coverage, and $1,000,000 in general liability insurance coverage It will name the City of Denton, Texas and the State of Texas as additional insurers on liability policies and shall provide City with certificates evidencing such coverage Said policies shall not be cancelable unless 30 days written notice is given to City before cancellation M Agency shall submit its grant funds for the upcoming year no later than December 31. 1995 N Agency shall anticipate and be actively involved in public hearings on the grant proposal, as required by the American with Disabilities Act and ridership input for system and route changes, at such times as required by law O All requests for reimbursement shall be submitted to the City Manager no later than the seventh day of each month The request should detail the number of service hours operated for both the demand response and fixed -route service Reimbursement will be based upon the number of service hours multiplied by the 'fully allocated rate' determined annually by the City and Agency prior to October 1 Farebox revenue receipt figures shall also be included in each billing statement, and documentation shall be provided to support such figures In no event under the terms of this Agreement will the total compensation to be paid exceed the amount of the City's FTA and State grants, as outlined in the City's contracts with the State and the FTA Farebox revenue receipt figures shall be included in each billing statement, and documentation shall be provided to support such figures P Agency shall submit to the City copies of each accident report, the Police accident report, Agency accident report and indication of drug policy action taken as soon as possible after the accident A review of accidents will be conducted quarterly with the assistance of the City's Risk Manager AAA032AD Q Agency shall submit evidence of compliance with various federal and state regulations pursuant to City's request R The Agency agrees 1 To comply with the Privacy Act of 1974, 5 U S C § 552a and regulations thereunder, when performance under the Project involves the design, development, or operation of any system of records on individuals to be operated by the Agency, its third party contractors, sub -grantees, sub -recipients, or their employees to accomplish a Government function, 2 To notify the Government when the Agency or any of its third party contractors, sub -grantees, sub -recipients, or their employees anticipates operating a system of records on behalf of the Government in order to implement the Project, if such system contains information about individuals retrievable by the individual's name or other identifier assigned to the individual A system of records subject to the Act may not be used in the performance of this Agreement until the necessary and applicable approval and publication requirements have been met The Agency, its third party contractors, sub -grantees, sub -recipients, and their employees agree to correct, maintain, disseminate, and use such records in accordance with the terms of the Act, and to comply with all applicable terms of the Act, 3 To include in every solicitation and in every third party contract, sub -grant, and sub -agreement when the performance of work under that proposed third party contract, sub - grant, or sub -agreement may involve the design, development, or operation of a system of records on individuals to be operated under that third party contract, sub -grant, or sub -agreement to accomplish a Government function, a Privacy Act notification informing the third party contractor, sub -grantee, or sub -recipient that it will be required to design, develop, or operate a system of records on individuals to accomplish a Government function subject to the Privacy Act of 1974, 5 U S C § 552a, and Federal agency regulations, and that a violation of the Act may involve the imposition of criminal penalties, and 4 To include the text of Subsections 125 c (1) through 125 c (4) of Part II of the City's Agreement with the Government, in all third party contracts, sub -grants, and sub - agreements under which work for this Agreement is performed or which is awarded pursuant to this Agreement or which may involve the design, development, or operation of such a system of records on behalf of the Government S Prohibition of Drugs The Agency agrees to comply with the following regulations UMTA regulations, "Control of Drug Use in Mass Transportation Operations," 49 C F R Part 653, Department of Transportation regulations, "Drug -Free Workplace Requirements (Grants)," 49 C F R Part 29, Subpart F, and Department of Transportation regulations, "Procedures for Transportation Workplace Drug Testing Programs," 49 C F R Part 40, and "Qualification of Drivers," 49 C F R Part 391, Subpart h Agency shall obtain from its third party contractors, sub -grantees, and sub -recipients certifications required by Department of Transportation regulations, "Government -wide Debarment and Suspension (Non -procurement)," 49 C F R Part 29, and otherwise comply with the requirements of those regulations AAA032AD T Agency acknowledges that if it makes a false, fictitious, or fraudulent claim, statement, submission, or certification to the Government in connection with this Project, the Government reserves the right to pursue the procedures and impose on the Agency the penalties of 18 U S C § 1001, 31 U S C §§ 231 and 3801 et seg , and/or 49 U S C app § 1607(h), and may be deemed by the Government to be appropriate The terms of Department of Transportation regulations, "Program Fraud Civil Remedies," 49 C F R Part 31, are applicable to this Project III. TIME OF PERFORMANCE The services funded by the City shall be undertaken by the Agency within the following time frame (Date of Award) through September 30, 1999 A Payment by the City for services provided hereunder shall be requested by the Agency by letter addressed to City of Denton, 215 East McKinney, Denton, Texas 76201, Ann City Manager's Office B Agency shall make each request for payment in accordance with the provisions herein and all requests for payment shall be submitted to the City Manager C The City shall submit a request for payment to the FTA Within three (3) working days of receiving reimbursement from the FTA, the City shall send payment to the Agency D It is expressly understood and agreed that (i) the funds payable under this Agreement are subject to receipt of momes from the State of Texas and the FTA Should the funds be curtailed, or should the City be required to curtail its funding, City shall have the right to terminate this Agreement immediately without penalty In no event under the terms of this Agreement will the total compensation to be paid exceed the amount of the City's FTA and State grants, as outlined in the City's contracts with the State and the FTA It is expressly understood that this contract in no way obligates the General Fund or any other momes or credits of the City of Denton E The City shall not be obligated or liable under this contract to any party other than the Agency for payment of any momes or provision of any goods or services V. EVALUATION The Agency agrees to participate in an implementation and maintenance system whereby its services can be continuously monitored The Agency agrees to make available its financial records for review by the City at the City's discretion In addition, the Agency agrees to provide the City copies of the following data and reports AAA032AD A All external or internal audits Agency shall submit a copy of the annual independent audit to City within ten (10) days of receipt B All external or internal evaluation reports C Agency shall submit quarterly financial statements to City in January, April, July, and September Each statement shall include expenses and income for the preceding quarter and shall identify the number of participants in each transportation program the agency operates Agency shall submit such statements not later than the fifteenth day of the month following the end of each quarter VI. DIRECTORS' MEETINGS During the term of tlus Agreement, the Agency shall cause to be delivered to the City copies of all notices of meetings of its Board of Directors, setting forth the tune and place thereof Such notice shall be delivered to the City in a timely manner to give adequate notice, and shall � include an agenda and a brief description of the matters to be discussed Agency understands and agrees that City representatives shall be afforded access to all Board of Directors' meetings Minutes of all meetings of the Agency's governing body shall be submitted to the City within ten (10) working days of approval VII. SUSPENSION OR TERMINATION The City may suspend or terminate this Agreement and payments to the Agency, in whole or part, for cause Cause shall include but not be limited to the following A Agency's improper, misuse, or inept use of funds, B Agency's failure to comply with the terms and conditions of this Agreement, C Agency's submission of data or reports that are incorrect or incomplete in any material respect, D Appointment of a trustee, receiver or liquidator for all or a substantial part of the Agency's property, or institution of bankruptcy, reorganization, rearrangement of or liquidation proceedings by or against the Agency, or E If for any reason the carrying out of this Agreement is rendered impossible or infeasible In case of suspension, the City shall advise the Agency, in writing, as to conditions precedent to the resumption of funding and specify a reasonable data for compliance AAA032AD In case of termination, the Agency will remit to the City any unexpended City funds Acceptance of these funds shall not constitute a waiver of any claim the City may otherwise have arising out of this Agreement VIII. EQUAL OPPORTUNITY A Agency will submit for City approval a written plan for compliance with the Equal Employment and Affirmative Action Federal provisions, within one hundred twenty (120) days of the effective date of this Agreement B Agency shall comply with all applicable equal employment opportunity and affirmative action laws or regulations C Agency will furnish all information and reports requested by the City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, state and Federal rules and regulations D In the event of the Agency's non-compliance with the Federal non-discrimination requirements, the Agreement may be cancelled, terminated, or suspended in whole or in part, and the Agency may be barred from further contracts with the City IX. CONFLICT OF INTEREST A The Agency covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement The Agency further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body B The Agency further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself, or others, particularly those with which he has family, business, or other ties C No officer, member, or employee of the City and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall (1) participate in any decision relating to the Agreement which affects his personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest, or (2) have any interest, direct or indirect, in this Agreement or the proceeds thereof X. Agency shall not employ in any paid capacity any person who is a member of the immediate family of any person who is currently employed by Agency, or is a member of Agency's governing board The term "member of immediate family" includes wife, husband, AAA032AD son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, step-parent, step -child, half-brother and half- sister XI SPECIAL CONDITIONS A Agency agrees to undertake, carry out, and complete the Project consistent with the terms and conditions determined by the Secretary of Labor to be fair and equitable to protect the interests of employees affected by the Project and meet requirements of Section 13(c) of Federal Transit Act, as amended, 49 U S C App Section 1609(c), and Department of Labor (DOL) guidelines set forth in 29 C F R Part 215 These terms and conditions are identified in the letter of certification from DOL to FTA whose date is set forth in the Notification of Grant Approval to the City The Agency agrees to carry out the Grant in compliance with the con- ditions stated in that DOL letter That letter and any documents cited in the letter are incorporated herein by reference and made part of this Grant B Agency agrees to comply with the requirements of Section 8 of the Federal Transit Act, as amended, 49 U S C App Section 1607, and any implementing regulations that may be issued thereunder C Agency agrees that it will utilize its administrative process to solicit and consider public comment prior to raising fares or implementing a major reduction of service D Agency agrees that the Federal Government and the City may, at least annually and more frequently in its discretion, either conduct or require the Agency to have independently conducted, reviews and audits as the Government may deem appropriate pursuant to the provisions of Section 9(g) of the Federal Transit Act, as amended, 49 U S C App Section 1607a(g), and any regulations or guidelines that may be issued by the Government E Agency agrees and assures that the rates charged elderly and handicapped persons during nonpeak hours for transportation utilizing or involving the facilities and equipment financed pursuant to this Agreement will not exceed one-half of the rates generally applicable to other persons at peak hours, whether the operation of such facilities and equipment is by the Agency or is by another entity under lease or otherwise The Agency agrees and assures that it will give the rate required herein to any person presenting a Medicare card duly issued to that person pursuant to Title II or Title XVIII of the Social Security Act F Agency agrees to comply with applicable Buy America statutory and regulatory provisions The Agency may, without prior approval, procure an associated capital maintenance item eligible under Section 90) of the Federal Transit Act, 49 U S C App Section 1607a(j), by contract directly with the original manufacturer or supplier of the item to be replaced, provided that the Agency first certifies in writing to the Government that (1) such manufacturer or supplier is the only source of such item, and (2) the price of such item is no higher than the price paid for such item by like customers G Agency shall implement a project management plan, as approved by the Federal Government, in accordance with the requirements of Section 23 of the Federal Transit Act, as AAA032AD amended, 49 U S C App Section 1619, and any implementing regulations that may be there- under XII. ADDITIONAL COVENANTS OF AGENCY A Defiruttons As used in this section Agreemen means any Grant Agreement or Cooperative Agreement 2 Annlication means the signed and dated proposal as may be amended for Federal financial assistance for the Project, together with all explanatory, supporting, and supplementary documents heretofore filed with and accepted and approved by the Government (UMTA) by or on behalf of the Agency 3 Approval. Authorization. Concurrence. Waiver means a conscious written act by an authorized official of the UMTA and City granting permission to the Agency to perform or omit an action pursuant to this Agreement, which action may not be performed or omitted without such permission An approval, authorization, concurrence, or waiver permitting the performance or omission of a specific action shall not constitute permission to perform or omit other similar actions unless such permission is clearly stated Oral permission or interpretations have no legal force or effect 4 UMTA Directive includes the most recent circulares, notices, and orders that present information about UMTA programs, application processing procedures, and guidance for administering approved Projects, there are also Department of Transportation directives that may be applicable to the Project 5 Government means the United States of America, or its cognizant agency, the Department of Transportation (DOT), or its operating administration, the Urban Mass Transportation Administration (UMTA), used herein interchangeably 6 Mass Transportation includes public transportation and means transportation by bus, rail or other conveyance, either publicly or privately owned, that provides general or special transportation service (but not including school bus, charter or sightseeing service) to the public on a regular and continuing basis 7 Prote t means the task or set of tasks provided for in the Project Budget which the Agency undertakes to perform pursuant to this Agreement 8 Project or Program Budget means the most recently dated statement, approved by the Government, of the estimated total cost of the Project or Program, the items to be deducted from such total in order to calculate the estimated net Project cost, the maximum amount of Federal assistance for which the Agency, through the City, is currently eligible, the specific items (including contingencies and relocation) for which the total may be spent, and the estimated cost of each of such items AAA032AD 9 Secretary means Secretary of the Department of Transportation or his or her duly authorized designee 10 UMTA means the Urban Mass Transportation Administration of the U S Department of Transportation 11 City means City of Denton, Texas B In the performance of its obligations pursuant to this Agreement, the Agency agrees to comply with all applicable provisions of Federal, State, and local laws, regulations, and UMTA directives The Agency understands and agrees that Federal laws, regulations, policies, and related administrative practices in force and made applicable to this Agreement on the date of execution may be modified from tune to time, and that the most recent of such provisions will govern administration of this Agreement at any particular time, except if there is sufficient evidence in the Agreement of a contrary intent Such contrary intent might be evidenced by express language in any amendments to the Agreement Likewise, new Federal laws, regula- tions, policies and administrative practices may be established after the date of execution and thereafter be applied to this Agreement As may be necessary to achieve compliance with these requirements, the Agency shall include notice of such requirements in all third party contracts, sub -grants, and other sub -assistance agreements financed with Government (UMTA) assistance All limits or standards set forth in this Agreement to be observed in the performance of the Project are minimum requirements If there is a conflict between Federal and State or local requirements, the Agency shall inform the City and the Government (UMTA) in order that an appropriate resolution may be arranged C Agency shall submit to the City such data, reports, records, contracts, and other documents relating to the Project as the City may, during the course of the Project and for three years thereafter, require The Agency shall retain intact, for three years following Project close- out, all Project documents, financial records, and supporting documents and make these records available to the City as the City may require D Agency shall immediately notify the City of any change in law, conditions, or any other event that may significantly affect its ability to perform the Project in accordance with the terms of this Agreement In addition, the Agency shall inunediately notify the City of any decision pertaining to the Agency's conduct of litigation that may affect the City's interests in the Project or the City's administration or enforcement of applicable Federal laws or regulations Before the Agency may join the City as a named party to litigation, for any reason, the Agency agrees to first inform the City, this proviso applies to any type of litigation whatsoever, in any forum E Absent the express, written consent of the Government or the City and notwithstand- ing any concurrence by the Government in or approval of the award of any contract or subcontract or the solicitation thereof, neither the Government nor the City shall be subject to any obligations or liabilities by contractors of the City or their subcontractors or any other person not a party to this Agreement in connection with the performance of this Project AAA032AD F Agency shall prepare and maintain a Project Budget A copy of the said budget shall be submitted to the City by March 1 of each year The Agency shall carry out the Project and shall incur obligations against and make disbursements of Project funds only in conformity with the latest approved budget for the Project The Project Budget may be revised, from time to time, to the extent permitted by and in conformance with the requirements of the Government G Agency shall establish and maintain either a separate set of accounts or accounts, within the framework of an established and approved accounting system, for the Project in a manner consistent with 49 C F R § 18 20, or OMB Circular A-110, as amended, as may be applicable H Consistent with the provisions of 49 C F R § 18 21, or OMB Circular A-110, as amended, as may be applicable, the Agency shall record in the Project Account, and deposit in a bank or trust company all Project payments it receives from the City pursuant to this Agreement and all other funds provided for, accruing to, or otherwise received on account of the Project, (Project Funds) A separate batik account may be required when drawdowns are made by letter of credit The Agency is encouraged to use banks that are owned at least 50 percent by minority group members I Expenditures made by the Agency shall be reimbursable as allowable costs to the extent that they meet all the requirements set forth below They must 1 Conform with the Project Description and the Project Budget and all other terms of the Agreement, 2 Be necessary in order to accomplish the Project, 3 Be reasonable in amount for the goods or services purchased, 4 Be actual net costs to the Agency (i e , the price paid minus any refunds, rebates, or other items of value received by the Agency that have the effect of reducing the cost actually incurred, excluding Program Income), 5 Be incurred (and be for work performed) after the date of this Agreement, unless specific authorization from the Government (UMTA) or the City to the contrary is received, 6 Unless permitted otherwise by Federal statute or regulation, conform with Federal guidelines or regulations and Federal cost principles as set forth in the standards of OMB Circular A-122, Revised, "Cost Principles for Nonprofit Organizations," and the standards of 48 C F R Part 31 are applicable, 7 Be satisfactorily documented, and 8 Be treated uniformly and consistently under accounting principles and procedures approved and prescribed by the Government or City for the Agency, and those approved or prescribed by the Agency for its contractors AAA032AD J All costs charged to the Project, including any approved services contributed by the Agency or others, shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers evidencing in detail the nature and propriety of the charges The Agency shall also maintain accurate records of all Project Funds derived from the implementation of the Project K Any check or order drawn by the Agency with respect to any item that is or will be chargeable against the Project Account will be drawn only in accordance with a properly signed voucher then on file in the office of the Agency statmg in proper detail the purpose for which such check or order is drawn All checks, payrolls, invoices, contracts, vouchers, orders, or other accounting documents pertaining in whole or in part to the Project shall be clearly identified, readily accessible, and, to the extent feasible, kept separate and apart from all other such documents L The Agency shall permit the Secretary and the Comptroller General of the United States, or any of their duly authorized representatives to inspect all work, materials, payrolls, and other data and records with regard to the Project, and to audit the books, records, and accounts of the Agency and its contractors with regard to the Project In the case of contracts awarded under other than competitive bidding procedures as defined by the Secretary of Transportation, the Agency shall require those contractors to permit the Secretary of Transportation and the Comptroller General of the United States, or any of their duly authorized representatives to inspect all work, materials, payrolls, and other data and records with regard to the Project, and to audit the books, records, and accounts pertaining to such contracts with regard to the Project If the City is found to be responsible for meeting the audit requirements of 49 C F R § 18 26 and OMB Circular A-128 or any revision or supplement thereto, the Agency shall comply with these requests The Agency is responsible for obtaining any audits required by the Government (UMTA) Closeout of the Project will not alter the Agency's audit responsibilities 1 The Agency shall report its cash disbursements and balances in a timely manner as required by the City or Government 2 The Agency shall provide for effective control and accountability for all Project funds consistent with Federal requirements and procedures for use of the letter of credit 3 The Agency shall impose on its sub -recipients all applicable requirements of Subsections 105 b (1) (a), (b), and (c) of Part II of this Agreement M Neither the Agency nor any sub -recipient may use Federal assistance funds for publicity or propaganda purposes designed to support or defeat legislation pending before Congress N Agency agrees that 1 Any interest earned by the Agency on Federal funds must be remitted to the Government, except as provided by the Intergovernmental Cooperation Act, 31 U S C § 6503(a), or the Indian Self -Determination Act, 23 U S C § 450 AAA032AD 2 Upon notice by the Government (UMTA) to the City of specific amounts due the Government, the Agency shall promptly remit any excess payment of amounts or disallowed costs to the Government (UMTA), including any interest due thereon O The Agency recognizes that the Government (UMTA) reserves the right to deobligate unspent Federal funds prior to Project closeout, if such occurs, City may terminate this Agreement without penalty P Agency agrees that, upon written notice, the City may suspend or terminate all or part of the financial assistance provided herein if the Agency is, or has been, in violation of the terms of this Agreement, or if the Government or the City determines that the purposes of the statute under which the Project is authorized would not be adequately served by continuation of Federal financial assistance for the Project Any failure to make reasonable progress or other violation of the Agreement that significantly endangers substantial performance of the Project shall be deemed to be a breach of this Agreement If the Agency's failure either to make adequate progress or to make reasonable use of the Project real property, facilities, or equipment, or to honor the terms of this Agreement is determined by the City to be willful or unreasonable, the City reserves the right to require the Agency to refund to the City the entire amount of Project funds provided by the City or any lesser amount as may be determined by the City Q Within 30 days of the termination of this Agreement, the Agency shall submit a final Financial Status Report (Standard Form 269), a certification or summary of Project expenses, and third party audit reports, as applicable Agency agrees that either the Government (UMTA) or an agency designated by the Government (UMTA) will perform a final audit of the Project to determine the allow ability of costs incurred to determine settlement of the Federal assistance for the Project in accordance with Part I of this Agreement If City has made payments to the Agency in excess of the total amount of the Federal assistance due, the Agency shall promptly remit to the City that excess and interest as may be required by Subsections 105 b and 105 e of Part II of the City's Agreement with the Government Project closeout occurs when the City notifies the Agency and forwards the final Federal assistance payment or when the Agency's remittance of the proper refund has been acknowledged by the City Project closeout shall not invalidate any continuing obligations imposed on the Agency by this Agreement or by the City's final notification or acknowledgment R The following conditions are applicable to real property, equipment, and supplies financed under tlus Agreement 1 The Agency agrees to observe the property management standards set forth in 49 C F R §§ 18 31, 18 32, and 18 33, or OMB Circular A-110, Attachment N, as appropriate, as now or hereafter amended, and any guidelines or regulations that the Government may issue Exceptions to the requirements of 49 C F R §§ 18 31, 18 32, and 18 33, and to OMB Circular A-110, Attachment N must be specifically approved by the City The City reserves the right to require the Agency to transfer title to any equipment financed with Federal assistance made available by this Agreement as set forth in 49 C F R § 18 32(g) or OMB Circular A-110, Attachment N, as may be appropriate The City also reserves the right to direct the disposition of real property or equipment financed with Federal assistance funds made available under this AAA032AD Agreement, as set forth in 49 C F R §§ 18 31 and 18 32 or OMB Circular A-110, Attachment N, as may be applicable 2 The Agency agrees to maintain the Project real property, equipment, and supplies in good operating order, and in accordance with any guidelines, directives, or regulations that UMTA may issue If, during the period, any Project real estate, equipment, or supplies are not used in mass transportation service, whether by planned withdrawal, misuse or casualty loss, the Agency shall immediately notify the City Unless otherwise approved, the Agency shall remit to the City a proportional amount of the fair market value, if any, of the real property, equipment, or supplies whose aggregate value exceeds $5,000, which value shall be determined on the basis of the ratio of the Federal assistance awarded by the Government to the actual cost of the Project The following guidelines shall be followed in determining the fair market value Unless otherwise approved in writing by UMTA, the fair market value of equipment and supplies will be the value of that property at the tune immediately before the reason occurred that prompted the decision to withdraw that property from transit use For example, in the event of loss of or damage to the property by casualty or fire, the fair market value of the property will be calculated immediately before the loss or damage, irrespective of the extent of insurance coverage In the case of equipment and supplies, fair market value shall be based on straight line depreciation of the equipment and supplies, based on the industry standard for useful life, irrespective of the reason for withdrawal of that property from transit use In the case of real property, the fair market value shall be determined by competent appraisal based on an appropriate date as determined by the Government consistent with the standards of 49 C F R Part 24 The City, however, reserves the right to require another method of valuation to be used if the Government (UMTA) finds that special circumstances so require to assure the protection of the Federal investment In unusual circumstances, the Agency may request that another reasonable method of determining fair market value be used, including but not limited to accelerated depreciation, comparable sales, or established market values In determining whether to approve an alternate method, the City may consider any action taken, omission made or unfortunate occurrence suffered by the Agency with respect to the preservation or conservation of the value of the real property, equipment, or supplies that, for any reason, have been withdrawn from service 3 The Agency further agrees that the Project real property, equipment, and supplies shall be used for the provision of mass transportation service within the area and in the manner set forth in the Project Description Should the Agency unreasonably delay in or refrain from using Project real estate or equipment, in the manner set forth in the Project Description, the City reserves the right to require the Agency to return the entire amount of the Federal assistance expended on that real estate or equipment The Agency shall keep satisfactory records with regard to the use of the real property, equipment, and supplies, and submit to the City upon request such information as may be required to assure compliance with this Section and shall uninediately notify the City in all cases in which Project real property, equipment, or supplies are used in a manner substantially different from what is set forth in the Project Description The City reserves the right to require the Agency to restore Project real property, equipment, or supplies or pay for damage to Project real property, equipment, or supplies as a result of abuse or misuse of such property with the Agency's knowledge and consent AAA032AD S Agency may not execute any transfer of title, lease, lien, pledge, mortgage, encumbrance, contract, grant anticipation note, alienation, or other obligation that in any way affects the Federal interest in any Project real property or equipment, nor may the Agency obligate itself, in any other manner, to any third party with respect to Project real property or equipment, unless such transfer of title, lease, lien, pledge, mortgage, encumbrance, contract, grant anticipation note, alienation, or other obligation is expressly authorized in writing by the City and Government (UMTA), nor may the Agency, by any act or omission, adversely affect the Federal interest or impair the Agency's continuing control over the use of Project real property or equipment T Civil Rights FEual Employment Gpportumty - The following requirements are applicable to the Project (a) In connection with Project implementation, the Agency may not discriminate against any employee or applicant for employment because of race, color, age, creed, sex, or national origin The Agency shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, age, 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 The Agency shall insert the foregoing provision (modified only to show the particular contractual relationship) in all of its contracts in connection with the develop- ment or operation of the Project, except contracts for standard commercial supplies or raw materials and construction contracts, and shall require all such contractors to insert a similar provision in all subcontracts, except subcontracts for standard commercial supplies or raw materials (b) If, as a condition of assistance, the Agency has submitted, and the City has approved, an equal employment opportunity program that the Agency agrees to carry out, such program is incorporated into this Agreement by reference Such program shall be treated as a contractual obligation, and failure to carry out the terms of that equal employment opportunity program shall be treated as a violation of this Agreement Upon notification to the Agency of its failure to carry out the approved program, the Government or the City will impose such remedies as it may deem appropriate, which remedies may include termination of financial assistance as set forth in Section 106 of Part II of the City's Agreement with the Government or other measures that may affect the ability of the Agency to obtain future financial assistance under the Urban Mass Transportation Act of 1964, as amended, or title 23, United States Code (Highways) 2 Small, Minority and Women's Business Enterprise The following provisions are applicable to the Project (a) The Agency shall be responsible for meeting the requirements regarding participation by minority business enterprises (MBE) in Department of Transportation programs AAA032AD set forth at 49 C F R Part 23 Pursuant to the requirements of 49 C F R § 23 43, the following, clauses must be inserted in each third party contract (i) POLICY IT IS THE POLICY OF THE DEPARTMENT OF TRANS- PORTATION THAT MINORITY BUSINESS ENTERPRISES, AS DEFINED IN 49 C F R PART 23, SHALL HAVE THE MAXIMUM OPPORTUNITY TO PARTICIPATE IN THE PERFORMANCE OF CONTRACTS FINANCED IN WHOLE OR IN PART WITH FEDERAL FUNDS UNDER THIS AGREEMENT CONSEQUENTLY, THE MBE REQUIREMENTS OF 49 C F R PART 23 APPLY TO THIS AGREEMENT (u) MBE OBLIGATION THE AGENCY AND ITS CONTRACTORS AGREE TO ENSURE THAT MINORITY BUSINESS ENTERPRISES AS DEFINED IN 49 C F R PART 23 HAVE THE MAXIMUM OPPORTUNITY TO PARTICIPATE IN THE PERFORMANCE OF CONTRACTS AND SUBCON- TRACTS FINANCED IN WHOLE OR IN PART WITH FEDERAL FUNDS PROVIDED UNDER THIS AGREEMENT IN THIS REGARD ALL AGENCIES AND CONTRACTORS SHALL TAKE ALL NECESSARY AND REASONABLE STEPS IN ACCORDANCE WITH 49 C F R PART 23 TO ENSURE THAT MINORITY BUSINESS ENTERPRISES HAVE THE MAXIMUM OPPORTUNITY TO COMPETE FOR AND PERFORM CONTRACTS AGENCY AND ITS CONTRACTORS SHALL NOT DISCRIMINATE ON THE BASIS OF RACE, COLOR, NATIONAL ORIGIN OR SEX IN THE AWARD AND PERFORMANCE OF CONTRACTS ASSISTED BY THE DEPARTMENT OF TRANSPORTATION (b) The Agency shall advise each sub -recipient, contractor, and subcontractor that failure to carry out the requirements set forth in 49 C F R § 23 43(a) shall constitute a breach of contract and, after the notification of the Department of Transportation, may result in termination of the Agreement or contract by the Agency or such remedy as the Agency deems appropriate (c) The Agency shall take action concerning lessees as follows (i) The Agency shall not exclude MBEs from participation in business opportunities by entering into long-term, exclusive agreements with non -MBEs for the operation of major transportation -related activities for the provision of goods and services to the facility or to the public on the facility (u) If the Agency is required to submit affirmative action programs under 49 C F R § 23 41(a)(2) or 49 C F R § 23 41(a)(3) and has business opportunities for lessees, it shall submit for approval to the Department of Transportation with its programs overall goals for the participation as lessees of firms owned and controlled by MBEs These goals shall be for a specified period of time and shall be based on the factors listed in 49 C F R § 23 45 (g)(5) The Agency shall review these goals at least annually, and whenever they expire, analyzing projected versus actual MBE participation during the period covered by the review and any changes in factual circumstances affecting the selection of goals Following each review, the Agency shall submit new overall goals to the Department of Transportation for AAA032AD approval If Agency fails to meet its goals for MBE lessees, it shall demonstrate to the City and the Government in writing that it made reasonable efforts to meet the goals (m) Except as provided in this section, the Agency is required to include lessees in affirmative action programs Lessees themselves are not subject to the requirements of this Part, except for the requirement under 49 C F R § 23 7 that lessees avoid discrimination against MBEs 3 Title VI Civil Rights Act of 1964 The Agency shall comply and shall assure the compliance by contractors and subcontractors under this Project with all requirements of Title VI of the Civil Rights Act of 1964, 42 U S C § 2000d, Department of Transportation regulations, "Nondiscrimination in Federally -Assisted Programs of the Department of Transportation -- Effectuation of Title VI of the Civil Rights Act," 49 C F R Part 21, and the Assurance by the Agency pursuant thereto 4 Nondiscrunination on the Basis of Handicap The Agency shall ensure that all fixed facility construction or alteration and all new equipment included in the Project shall comply with Department of Transportation regulations, "Nondiscrimination on the Basis of Handicap in Programs and Activities, Receiving or Benefitting from Federal Financial Assistance," 49 C F R Part 27, and UMTA regulations, "Transportation for Elderly and Handicapped Persons," 49 C F R Part 609, and any amendments thereto that may be issued 5 Competition in Procurement The Agency agrees to comply with the Procurement Standards requirements set forth at 49 C F R § 18 36 or OMB Circular A-110, Attachment O, as may be applicable, and with any supplementary directives or regulations including UMTA Circular 4220 111, and any revisions thereof, as may be applicable UMTA reserves the right to review the Agency's technical specifications and requirements, where such review is necessary for proper Project administration The Agency further agrees that, notwith- standing the requirements of Section 121 of Part II of the City's Agreement with the Government, no Federal funds shall be used to support procurements utilizing exclusionary or discriminatory specifications 6 force Account The City and Government (UMTA) reserves the right to determine the extent of its participation in force account costs 7 Settlement of Third Party Contract Disp=s or Breaches The U S Government has a vested interest in the settlement of any dispute, default, or breach involving any federally - assisted tlurd party contract Agency agrees that the Government retains the right to a proportionate share, based on the percentage of the Federal share committed to the Project, of any proceeds derived from any third party recovery Therefore the Agency shall avail itself of all legal rights available under any third party contract The Agency shall notify the City and Government of any current or prospective litigation or major disputed claim pertaining to any third party contract The City and Government reserves the right to concur in any compromise or settlement of any claim by the Agency involving any third parry contract If the third party contract contains a liquidated damages provision, any liquidated damages recovered shall be credited to the Project account involved unless the Government permits otherwise In the event the Agency wishes to join the Government as a named party to litigation, for any reason, the Agency agrees to inform the City Government before doing so, this proviso applies to any type of litigation whatsoever, in any forum 8 Ethics The Agency shall maintain a written code or standards of conduct that shall govern the performance of its officers, employees, board members, or agents engaged in the award and administration of contracts supported by Federal funds Such code or standards shall provide that no employee, officer, board member, or agent of the Agency may participate in the selection, award, or administration of a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved Such a conflict would arise when any of the parties set forth below has a financial or other interest in the firm selected for award (i) The employee, officer, board member, or agent, (n) Any member of his or her unmediate family, (m) His or her partner, or (iv) An organization that employs, or is about to employ, any of the above The code or standards shall also provide that the Agency's officers, employees, board members, or agents may neither solicit nor accept gratuities, favors or anything of monetary value from present or potential contractors or sub -recipients The Agency may set minimum rules where the financial interest is not substantial or the gift is an unsolicited item of nominal intrinsic value As permitted by State or local law or regulations, such code or standards shall provide for penalties, sanctions, or other disciplinary actions for violations by the Agency's officers, employees, board members, or agents, or by contractors or sub -recipients or their agents 9 Interest of Members of or Delegates to Congress No member of or delegate to the Congress of the United States shall be admitted to any share or part of this Project or to any benefit therefrom U CONSTRUCTION CONTRACTS The following provisions are applicable to federally assisted construction contracts 1 Nondiscrunmation Pursuant to the regulations of the Secretary of Labor at 41 C F R §§ 60-1 4(b)(1) and 60-1 4(c) (a) The Agency hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in the regulations of the Secretary of Labor at 41 C F R Chapter 60, that is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, cooperative agreement, contract, loan, insurance, or guarantee, or undertaken pursuant to a Federal program involving the grant, cooperative agreement, contract, loan, insurance, or guarantee, the following equal opportunity clause AAA032AD DURING THE PERFORMANCE OF THIS CONTRACT, THE CONTRACTOR AGREES AS FOLLOWS (i) THE CONTRACTOR WILL NOT DISCRIMINATE AGAINST ANY EMPLOYEE OR APPLICANT FOR EMPLOYMENT BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN THE CONTRACTOR WILL TAKE AFFIRMATIVE ACTION TO ENSURE THAT APPLICANTS ARE EMPLOYED, AND THAT EMPLOYEES ARE TREATED DURING EMPLOY- MENT WITHOUT REGARD TO THEIR RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN SUCH ACTION SHALL INCLUDE, BUT NOT BE LIMITED TO THE FOLLOWING EMPLOYMENT, UPGRADING, DEMO- TION, OR TRANSFER, RECRUITMENT OR RECRUITMENT ADVERTISING, LAYOFF OR TERMINATION, RATES OF PAY OR OTHER FORMS OF COMPENSATION, AND SELECTION FOR TRAINING, INCLUDING APPRENTICESHIP THE CONTRACTOR AGREES TO POST IN CONSPICU- OUS PLACES, AVAILABLE TO EMPLOYEES AND APPLICANTS FOR EMPLOYMENT, NOTICES TO BE PROVIDED SETTING FORTH THE PRO- VISIONS OF THIS NONDISCRIMINATION CLAUSE (n) THE CONTRACTOR WILL, IN ALL SOLICITATIONS OR ADVER- TISEMENTS FOR EMPLOYEES PLACED BY OR ON BEHALF OF THE CONTRACTOR, STATE THAT ALL QUALIFIED APPLICANTS WILL RECEIVE CONSIDERATION FOR EMPLOYMENT WITHOUT REGARD TO RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN (m) THE 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 ADVISING THE LABOR UNION OR WORK- ERS' REPRESENTATIVE OF THE 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 (iv) 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 (v) THE 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 SECRETARY OF LABOR AND UMTA FOR PURPOSES OF INVESTIGATION TO ASCER- TAIN COMPLIANCE WITH SUCH RULES, REGULATIONS, AND ORDERS AAA032AD (vi) IN THE EVENT OF THE CONTRACTOR'S NONCOMPLIANCE WITH THE NONDISCRIMINATION CLAUSES OF THIS AGREEMENT OR WITH ANY OF SUCH RULES, REGULATIONS, OR ORDERS, THIS AGREEMENT MAY BE CANCELLED, TERMINATED, OR SUSPENDED IN WHOLE OR IN PART AND THE CONTRACTOR MAY BE DECLARED INELIGIBLE FOR FURTHER FEDERAL OR FEDERALLY ASSISTED CONTRACTS IN ACCOR- DANCE 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 (vu) THE CONTRACTOR WILL INCLUDE THE PROVISIONS OF PARA- GRAPHS (a) THROUGH (g) OF THIS SUBSECTION IN EVERY SUBCON- TRACT OR PURCHASE ORDER UNLESS EXEMPTED BY RULES, REGULA- TIONS, OR ORDERS OF THE SECRETARY OF LABOR ISSUED PURSUANT TO SECTION 204 OF EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, SO THAT SUCH PROVISIONS SHALL BE BINDING UPON EACH SUBCON- TRACTOR OR VENDOR THE CONTRACTOR WILL TAKE SUCH ACTION WITH RESPECT TO ANY SUBCONTRACT OR PURCHASE ORDER AS THE SECRETARY OF LABOR OR UMTA MAY DIRECT AS A MEANS OF ENFORCING SUCH PROVISIONS, INCLUDING SANCTIONS FOR NONCOM- PLIANCE, PROVIDED, HOWEVER, THAT IF A CONTRACTOR BECOMES INVOLVED IN, OR IS THREATENED WITH, LITIGATION WITH A SUBCON- TRACTOR OR VENDOR AS A RESULT OF SUCH DIRECTION, THE CONTRACTOR MAY REQUEST THE UNITED STATES TO ENTER INTO SUCH LITIGATION TO PROTECT THE INTERESTS OF THE UNITED STATES (b) The Agency shall assure that each nonexempt prune contractor and subcontractor shall include in each nonexempt contract the requirements of Subsection 115 a (1) (a) through (g) of Part II of this Agreement (c) The Agency further agrees that it will be bound by this equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work, provided that if the Agency so participating is a State or local government, this equal opportunity clause does not apply to any agency, instrumentality or subdivision of such government that does not participate in work under the Agreement (d) The Agency agrees that it will assist and cooperate actively with UMTA and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will provide UMTA and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist UMTA in dis- charging its primary responsibility for securing compliance AAA032AD (e) The Agency further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, as amended, with any contractor that is debarred from or has not demonstrated eligibility for Gov- ernment contracts and federally assisted construction contracts pursuant to the Executive Order, and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by UMTA or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order In addition, the Agency agrees that if it fails or refuses to comply with these undertakings, UMTA may take any or all of the following actions Cancel, terminate, or suspend in whole or in part this Agreement, refrain from extending any further assistance to the Agency under the program with respect to which the failure or refusal occurred until satisfactory assurance of future compliance has been received from such Agency, and refer the case to the Department of Justice for appropriate legal proceedings 2 SRecifications The Agency hereby agrees that it will incorporate or cause to be incorporated the specifications set forth below into all Federal or federally assisted construction contracts, or modifications thereof, in excess of $10,000 to be performed in geographical areas designated by the Director, Office of Federal Contract Compliance Programs of the Department of Labor pursuant to the regulations of the Secretary of Labor at 41 C F R § 60-4 3 and in construction subcontracts in excess of $10,000 necessary in whole or in part to the performance of nonconstruction Federal contracts and subcontracts covered under Executive Order 11246 STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUC- TION CONTRACT SPECIFICATIONS (EXECUTIVE ORDER 11246) (1) AS USED IN THESE SPECIFICATIONS (a) "COVERED AREA" MEANS THE GEOGRAPHICAL AREA DE- SCRIBED IN THE SOLICITATION FROM WHICH THIS CONTRACT RESULTED, (b) "DIRECTOR" MEANS DIRECTOR, OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, OR ANY PERSON TO WHOM THE DIRECTOR DELEGATES AUTHORITY, (c) "EMPLOYER IDENTIFICATION NUMBER" MEANS THE FEDERAL SOCIAL SECURITY NUMBER USED ON THE EMPLOYER'S QUARTERLY FEDERAL TAX RETURN, US TREASURY DEPARTMENT FORM 941, (d) "MINORITY" INCLUDES (i) BLACK (ALL PERSONS HAVING ORIGINS IN ANY OF THE BLACK AFRICAN RACIAL GROUPS NOT OF HISPANIC ORIGIN), AAA032AD (u) HISPANIC (ALL PERSONS OF MEXICAN, PUERTO RICAN, CUBAN, CENTRAL OR SOUTH AMERICAN OR OTHER SPANISH CULTURE OR ORIGIN, REGARDLESS OF RACE), (iii) ASIAN AND PACIFIC ISLANDER (ALL PERSONS HAVING ORIGINS IN ANY OF THE ORIGINAL PEOPLES OF THE FAR EAST, SOUTHEAST ASIA, THE INDIAN SUBCONTINENT, OR THE PACIFIC ISLANDS), AND (w) AMERICAN INDIAN OR ALASKAN NATIVE (ALL PERSONS HAVING ORIGINS IN ANY OF THE ORIGINAL PEOPLES OF NORTH AMERICA AND MAINTAINING IDENTIFIABLE TRIBAL AFFILIA- TIONS THROUGH MEMBERSHIP AND PARTICIPATION OR COMMUNITY IDENTIFICATION) (2) WHENEVER THE CONTRACTOR, OR ANY SUBCONTRACTOR AT ANY TIER, SUBCONTRACTS A PORTION OF THE WORK INVOLVING ANY CONSTRUCTION TRADE, IT SHALL PHYSICALLY INCLUDE IN EACH SUBCONTRACT IN EXCESS OF $10,000 THE PROVISIONS OF THESE SPECIFICATIONS AND THE NOTICE WHICH CONTAINS THE APPLICABLE GOALS FOR MINORITY AND FEMALE PARTICIPATION AND WHICH IS SET FORTH IN THE SOLICITATIONS FROM WHICH THIS CONTRACT RESULTED (3) IF THE CONTRACTOR IS PARTICIPATING (PURSUANT TO 41 C F R § 60-4 5) IN A HOMETOWN PLAN APPROVED BY THE U S DEPARTMENT OF LABOR IN THE COVERED AREA, EITHER INDIVIDUAL- LY OR THROUGH AN ASSOCIATION, ITS AFFIRMATIVE ACTION OBLIGATIONS ON ALL WORK IN THE PLAN AREA (INCLUDING GOALS AND TIMETABLES) SHALL BE IN ACCORDANCE WITH THAT PLAN FOR THOSE TRADES WHICH HAVE UNIONS PARTICIPATING IN THE PLAN CONTRACTORS MUST BE ABLE TO DEMONSTRATE THEIR PARTICIPA- TION IN AND COMPLIANCE WITH THE PROVISIONS OF ANY SUCH HOMETOWN PLAN EACH CONTRACTOR OR SUBCONTRACTOR PARTICIPATING IN AN APPROVED PLAN IS INDIVIDUALLY REQUIRED TO COMPLY WITH ITS OBLIGATIONS UNDER THE EEO CLAUSE, AND TO MAKE A GOOD FAITH EFFORT TO ACHIEVE EACH GOAL UNDER THE PLAN IN EACH TRADE IN WHICH IT HAS EMPLOYEES THE OVERALL GOOD FAITH PERFORMANCE BY OTHER CONTRACTORS OR SUBCON- TRACTORS TOWARD A GOAL IN AN APPROVED PLAN DOES NOT EXCUSE ANY COVERED CONTRACTOR'S OR SUBCONTRACTOR'S FAILURE TO MAKE GOOD FAITH EFFORTS TO ACHIEVE THE PLAN GOALS AND TIMETABLES (4) THE CONTRACTOR SHALL IMPLEMENT THE SPECIFIC AFFIR- MATIVE ACTION STANDARDS PROVIDED IN PARAGRAPHS (7) (a) THROUGH (p) OF THESE SPECIFICATIONS THE GOALS SET FORTH IN AAA032AD THE SOLICITATION FROM WHICH THIS CONTRACT RESULTED ARE EX- PRESSED AS PERCENTAGES OF THE TOTAL HOURS OF EMPLOYMENT AND TRAINING OF MINORITY AND FEMALE UTILIZATION THE CONTRACTOR SHOULD REASONABLY BE ABLE TO ACHIEVE IN EACH CONSTRUCTION TRADE IN WHICH IT HAS EMPLOYEES IN THE COV- ERED AREA COVERED CONSTRUCTION CONTRACTORS PERFORMING CONSTRUCTION WORK IN GEOGRAPHICAL AREAS WHERE THEY DO NOT HAVE A FEDERAL OR FEDERALLY ASSISTED CONSTRUCTION CONTRACT SHALL APPLY THE MINORITY AND FEMALE GOALS ESTABLISHED FOR THE GEOGRAPHICAL AREA WHERE THE WORK IS BEING PERFORMED GOALS ARE PUBLISHED PERIODICALLY IN THE FEDERAL REGISTER IN NOTICE FORM, AND SUCH NOTICES MAY BE OBTAINED FROM ANY OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS OFFICE OR FROM FEDERAL PROCUREMENT CONTRACTING OFFICERS THE CONTRACTOR IS EXPECTED TO MAKE SUBSTANTIALLY UNIFORM PROGRESS TOWARD ITS GOAL IN EACH CRAFT DURING THE PERIOD SPECIFIED (5) NEITHER THE PROVISIONS OF ANY COLLECTIVE BARGAINING AGREEMENT, NOR THE FAILURE BY A UNION WITH WHOM THE CONTRACTOR HAS A COLLECTIVE BARGAINING AGREEMENT, TO REFER EITHER MINORITIES OR WOMEN SHALL EXCUSE THE CONTRAC- TOR'S OBLIGATIONS UNDER THESE SPECIFICATIONS, EXECUTIVE ORDER 11246, OR THE REGULATIONS PROMULGATED PURSUANT THERETO (6) IN ORDER FOR THE NONWORKING TRAINING HOURS OF APPRENTICES AND TRAINEES TO BE COUNTED IN MEETING THE GOALS, SUCH APPRENTICES AND TRAINEES MUST BE EMPLOYED BY THE CONTRACTOR DURING THE TRAINING PERIOD, AND THE CON- TRACTOR MUST HAVE MADE A COMMITMENT TO EMPLOY THE APPRENTICES AND TRAINEES AT THE COMPLETION OF THEIR TRAIN- ING, SUBJECT TO THE AVAILABILITY OF EMPLOYMENT OPPORTUNI- TIES TRAINEES MUST BE TRAINED PURSUANT TO TRAINING PRO- GRAMS APPROVED BY THE U S DEPARTMENT OF LABOR (7) THE CONTRACTOR SHALL TAKE SPECIFIC AFFIRMATIVE ACTIONS TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY THE EVALUATION OF THE CONTRACTOR'S COMPLIANCE WITH THESE SPECIFICATIONS SHALL BE BASED UPON ITS EFFORT TO ACHIEVE MAXIMUM RESULTS FROM ITS ACTIONS THE CONTRACTOR SHALL DOCUMENT THESE EFFORTS FULLY, AND SHALL IMPLEMENT AFFIR- MATIVE ACTION STEPS AT LEAST AS EXTENSIVE AS THE FOLLOWING (a) ENSURE AND MAINTAIN A WORKING ENVIRONMENT FREE OF HARASSMENT, INTIMIDATION, AND COERCION AT ALL SITES, AND IN ALL FACILITIES AT WHICH THE CONTRACTOR'S EMPLOYEES ARE AAA032AD ASSIGNED TO WORK THE CONTRACTOR, WHERE POSSIBLE, WILL ASSIGN TWO OR MORE WOMEN TO EACH CONSTRUCTION PROJECT THE CONTRACTOR SHALL SPECIFICALLY ENSURE THAT ALL FOREMEN, SUPERINTENDENTS, AND OTHER ON -SITE SUPERVISORY PERSONNEL ARE AWARE OF AND CARRY OUT THE CONTRACTOR'S OBLIGATION TO MAINTAIN SUCH A WORKING ENVIRONMENT, WITH SPECIFIC ATTEN- TION TO MINORITY OR FEMALE INDIVIDUALS WORKING AT SUCH SITES OR IN SUCH FACILITIES (b) ESTABLISH AND MAINTAIN A CURRENT LIST OF MINORI- TY AND FEMALE RECRUITMENT SOURCES, PROVIDE WRITTEN NOTICE TO MINORITY AND FEMALE RECRUITMENT SOURCES AND TO COMMU- NITY ORGANIZATIONS WHEN THE CONTRACTOR OR ITS UNIONS HAVE EMPLOYMENT OPPORTUNITIES AVAILABLE, AND MAINTAIN A RECORD OF THE ORGANIZATIONS' RESPONSES (c) MAINTAIN A CURRENT FILE OF THE NAMES, ADDRESSES AND TELEPHONE NUMBERS OF EACH MINORITY AND FEMALE OFF - THE -STREET APPLICANT AND MINORITY OR FEMALE REFERRAL FROM A UNION, A RECRUITMENT SOURCE OR COMMUNITY ORGANIZATION AND OF WHAT ACTION WAS TAKEN WITH RESPECT TO EACH SUCH INDIVIDUAL IF SUCH INDIVIDUAL WAS SENT TO THE UNION HIRING HALL FOR REFERRAL AND WAS NOT REFERRED BACK TO THE CONTRACTOR BY THE UNION OR, IF REFERRED, NOT EMPLOYED BY THE CONTRACTOR, THIS SHALL BE DOCUMENTED IN THE FILE WITH THE REASON THEREFOR, ALONG WITH WHATEVER ADDITIONAL ACTIONS THE CONTRACTOR MAY HAVE TAKEN (d) PROVIDE IMMEDIATE WRITTEN NOTIFICATION TO THE DIRECTOR WHEN THE UNION OR UNIONS WITH WHICH THE CONTRAC- TOR HAS A COLLECTIVE BARGAINING AGREEMENT HAS NOT RE- FERRED TO THE CONTRACTOR A MINORITY PERSON OR WOMAN SENT BY THE CONTRACTOR, OR WHEN THE CONTRACTOR HAS OTHER INFORMATION THAT THE UNION REFERRAL PROCESS HAS IMPEDED THE CONTRACTOR'S EFFORTS TO MEET ITS OBLIGATIONS (e) DEVELOP ON-THE-JOB TRAINING OPPORTUNITIES AND/OR PARTICIPATE IN TRAINING PROGRAMS FOR THE AREA WHICH EXPRESS- LY INCLUDE MINORITIES AND WOMEN, INCLUDING UPGRADING PROGRAMS AND APPRENTICESHIP AND TRAINEE PROGRAMS RELEVANT TO THE CONTRACTOR'S EMPLOYMENT NEEDS, ESPECIALLY THOSE PROGRAMS FUNDED OR APPROVED BY THE DEPARTMENT OF LABOR THE CONTRACTOR SHALL PROVIDE NOTICE OF THESE PROGRAMS TO THE SOURCES COMPILED UNDER (7)(b) ABOVE (f) DISSEMINATE THE CONTRACTOR'S EEO POLICY BY PROVIDING NOTICE OF THE POLICY TO UNIONS AND TRAINING AAA032AD PROGRAMS AND REQUESTING THEIR COOPERATION IN ASSISTING THE CONTRACTOR IN MEETING ITS EEO OBLIGATIONS, BY INCLUDING IT IN ANY POLICY MANUAL AND COLLECTIVE BARGAINING AGREEMENT, BY PUBLICIZING IT IN THE COMPANY NEWSPAPER, ANNUAL REPORT, ETC, BY SPECIFIC REVIEW OF THE POLICY WITH ALL MANAGEMENT PERSONNEL AND WITH ALL MINORITY AND FEMALE EMPLOYEES AT LEAST ONCE A YEAR, AND BY POSTING THE COMPANY EEO POLICY ON BULLETIN BOARDS ACCESSIBLE TO ALL EMPLOYEES AT EACH LOCATION WHERE CONSTRUCTION WORK IS PERFORMED (g) REVIEW, AT LEAST ANNUALLY, THE COMPANY'S EEO POLICY AND AFFIRMATIVE ACTION OBLIGATIONS UNDER THESE SPECIFICATIONS WITH ALL EMPLOYEES HAVING RESPONSIBILITY FOR HIRING, ASSIGNMENT, LAYOFF, TERMINATION OR OTHER EMPLOY- MENT DECISIONS INCLUDING SPECIFIC REVIEW OF THESE ITEMS WITH ON -SITE SUPERVISORY PERSONNEL SUCH AS SUPERINTENDENTS, GENERAL FOREMAN, ETC, PRIOR TO THE INITIATION OF CONSTRUC- TION WORK AT ANY JOB SITE A WRITTEN RECORD SHALL BE MADE AND MAINTAINED IDENTIFYING THE TIME AND PLACE OF THESE MEETINGS, PERSONS ATTENDING, SUBJECT MATTER DISCUSSED, AND DISPOSITION OF THE SUBJECT MATTER (h) DISSEMINATE THE CONTRACTOR'S EEO POLICY EXTER- NALLY BY INCLUDING IT IN ANY ADVERTISING IN THE NEWS MEDIA, SPECIFICALLY INCLUDING MINORITY AND FEMALE NEWS MEDIA, AND PROVIDING WRITTEN NOTIFICATION TO AND DISCUSSING THE CONTRACTOR'S EEO POLICY WITH OTHER CONTRACTORS AND SUBCONTRACTORS WITH WHOM THE CONTRACTOR DOES OR ANTICI- PATES DOING BUSINESS (i) DIRECT RECRUITMENT EFFORTS, BOTH ORAL AND WRITTEN, TO MINORITY, FEMALE AND COMMUNITY ORGANIZATIONS, TO SCHOOLS WITH MINORITY AND FEMALE STUDENTS AND TO MINORITY AND FEMALE RECRUITMENT AND TRAINING ORGANIZA- TIONS SERVING THE CONTRACTOR'S RECRUITMENT AREA AND EMPLOYMENT NEEDS NOT LATER THAN ONE MONTH PRIOR TO THE DATE FOR THE ACCEPTANCE OF APPLICATIONS FOR APPRENTICESHIP OR OTHER TRAINING BY ANY RECRUITMENT SOURCE, THE CONTRAC- TOR SHALL SEND WRITTEN NOTICE TO ORGANIZATIONS SUCH AS THE ABOVE, DESCRIBING THE OPENINGS, SCREENING PROCEDURES, AND TESTS TO BE USED IN THE SELECTION PROCESS 0) ENCOURAGE PRESENT MINORITY AND FEMALE EMPLOY- EES TO RECRUIT OTHER MINORITY PERSONS AND WOMEN AND, WHERE REASONABLE, PROVIDE AFTER SCHOOL, SUMMER AND VACATION EMPLOYMENT TO MINORITY AND FEMALE YOUTH, BOTH AAA032AD ON THE SITE AND IN OTHER AREAS OF THE CONTRACTOR'S WORK FORCE (k) VALIDATE ALL TESTS AND OTHER SELECTION REQUIRE- MENTS WHERE THERE IS AN OBLIGATION TO DO SO UNDER 41 C F R PART 60-3 (1) CONDUCT, AT LEAST ANNUALLY, AN INVENTORY AND EVALUATION AT LEAST OF ALL MINORITY AND FEMALE PERSONNEL FOR PROMOTIONAL OPPORTUNITIES AND ENCOURAGE THESE EMPLOY- EES TO SEEK OR TO PREPARE FOR, THROUGH APPROPRIATE TRAINING, ETC, SUCH OPPORTUNITIES (m) ENSURE THAT SENIORITY PRACTICES, JOB CLASSIFICA- TIONS, WORK ASSIGNMENTS AND OTHER PERSONNEL PRACTICES DO NOT HAVE A DISCRIMINATORY EFFECT BY CONTINUALLY MONITOR- ING ALL PERSONNEL AND EMPLOYMENT RELATED ACTIVITIES TO ENSURE THAT THE EEO POLICY AND THE CONTRACTOR'S OBLIGA- TIONS UNDER THESE SPECIFICATIONS ARE BEING CARRIED OUT (n) ENSURE THAT ALL FACILITIES AND COMPANY ACTIVI- TIES ARE NONSEGREGATED EXCEPT THAT SEPARATE OR SINGLE -USER TOILET AND NECESSARY CHANGING FACILITIES SHALL BE PROVIDED TO ASSURE PRIVACY BETWEEN SEXES (o) DOCUMENT AND MAINTAIN A RECORD OF ALL SOLICITA- TIONS OF OFFERS FOR SUBCONTRACTS FROM MINORITY AND FEMALE CONSTRUCTION CONTRACTORS AND SUPPLIERS, INCLUDING CIRCULA- TION OF SOLICITATIONS TO MINORITY AND FEMALE CONTRACTOR ASSOCIATIONS AND OTHER BUSINESS ASSOCIATIONS (p) CONDUCT A REVIEW, AT LEAST ANNUALLY, OF ALL SUPERVISORS' ADHERENCE TO AND PERFORMANCE UNDER THE CONTRACTOR'S EEO POLICIES AND AFFIRMATIVE ACTION OBLIGA- TIONS (8) CONTRACTORS ARE ENCOURAGED TO PARTICIPATE IN VOLUNTARY ASSOCIATIONS THAT ASSIST IN FULFILLING ONE OR MORE OF THEIR AFFIRMATIVE ACTION OBLIGATIONS SET FORTH IN PARAGRAPHS (7) (a) THROUGH (p) THE EFFORTS OF A CONTRACTOR ASSOCIATION, JOINT CONTRACTOR -UNION, CONTRACTOR -COMMUNI- TY, OR OTHER SIMILAR GROUP OF WHICH THE CONTRACTOR IS A MEMBER AND PARTICIPANT, MAY BE ASSERTED AS FULFILLING ANY ONE OR MORE OF ITS OBLIGATIONS UNDER PARAGRAPHS (7) (a) THROUGH (p) OF THESE SPECIFICATIONS, PROVIDED THAT THE CONTRACTOR ACTIVELY PARTICIPATES IN THE GROUP, MAKES EVERY EFFORT TO ASSURE THAT THE GROUP HAS A POSITIVE IMPACT ON THE AAA032AD EMPLOYMENT OF MINORITIES AND WOMEN IN THE INDUSTRY, ENSURES THAT THE CONCRETE BENEFITS OF THE PROGRAM ARE REFLECTED IN THE CONTRACTOR'S MINORITY AND FEMALE WORK FORCE PARTICIPATION, MAKES A GOOD FAITH EFFORT TO MEET ITS INDIVIDUAL GOALS AND TIMETABLES, AND CAN PROVIDE ACCESS TO DOCUMENTATION THAT DEMONSTRATES THE EFFECTIVENESS OF ACTIONS TAKEN ON BEHALF OF THE CONTRACTOR THE OBLIGATION TO COMPLY, HOWEVER, IS THE CONTRACTOR'S AND FAILURE OF SUCH A GROUP TO FULFILL AN OBLIGATION SHALL NOT BE A DEFENSE FOR THE CONTRACTOR'S NONCOMPLIANCE (9) A SINGLE GOAL FOR MINORITIES AND A SEPARATE SINGLE GOAL FOR WOMEN HAVE BEEN ESTABLISHED THE CONTRACTOR, HOWEVER, IS REQUIRED TO PROVIDE EQUAL EMPLOYMENT OPPORTU- NITY AND TO TAKE AFFIRMATIVE ACTION FOR ALL MINORITY GROUPS, BOTH MALE AND FEMALE, AND ALL WOMEN, BOTH MINORI- TY AND NON -MINORITY CONSEQUENTLY, THE CONTRACTOR MAY BE IN VIOLATION OF THE EXECUTIVE ORDER IF A PARTICULAR GROUP IS EMPLOYED IN A SUBSTANTIALLY DISPARATE MANNER (EVEN THOUGH THE CONTRACTOR HAS ACHIEVED ITS GOAL FOR WOMEN GENERALLY, THE CONTRACTOR MAY BE IN VIOLATION OF THE EXECUTIVE ORDER IF A SPECIFIC MINORITY GROUP OF WOMEN IS UNDERUTILIZED) (10) THE CONTRACTOR SHALL NOT USE THE GOALS AND TIMETA- BLES OR AFFIRMATIVE ACTION STANDARDS TO DISCRIMINATE AGAINST ANY PERSON BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN (11) THE CONTRACTOR SHALL NOT ENTER INTO ANY SUBCON- TRACT WITH ANY PERSON OR FIRM DEBARRED FROM GOVERNMENT CONTRACTS PURSUANT TO EXECUTIVE ORDER 11246 (12) THE CONTRACTOR SHALL CARRY OUT SUCH SANCTIONS AND PENALTIES FOR VIOLATION OF THESE SPECIFICATIONS AND OF THE EQUAL OPPORTUNITY CLAUSE, INCLUDING SUSPENSION, TERMINA- TION AND CANCELLATION OF EXISTING SUBCONTRACTS AS MAY BE IMPOSED OR ORDERED PURSUANT TO EXECUTIVE ORDER 11246, AS AMENDED, AND ITS IMPLEMENTING REGULATIONS, BY THE OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS ANY CONTRACTOR WHO FAILS TO CARRY OUT SUCH SANCTIONS AND PENALTIES SHALL BE IN VIOLATION OF THESE SPECIFICATIONS AND EXECUTIVE ORDER 11246, AS AMENDED (13) THE CONTRACTOR, IN FULFILLING ITS OBLIGATIONS UNDER THESE SPECIFICATIONS, SHALL IMPLEMENT SPECIFIC AFFIRMATIVE ACTION STEPS, AT LEAST AS EXTENSIVE AS THOSE STANDARDS PRESCRIBED IN PARAGRAPH (7) OF THESE SPECIFICATIONS, SO AS TO AAA032AD ACHIEVE MAXIMUM RESULTS FROM ITS EFFORTS TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY IF THE CONTRACTOR FAILS TO COMPLY WITH THE REQUIREMENTS OF THE EXECUTIVE ORDER, THE IMPLE- MENTING REGULATIONS, OR THESE SPECIFICATIONS, THE DIRECTOR SHALL PROCEED IN ACCORDANCE WITH 41 C F R § 60-4 8 (14) THE CONTRACTOR SHALL DESIGNATE A RESPONSIBLE OFFICIAL TO MONITOR ALL EMPLOYMENT RELATED ACTIVITY TO ENSURE THAT THE COMPANY EEO POLICY IS BEING CARRIED OUT, TO SUBMIT REPORTS RELATING TO THE PROVISIONS HEREOF AS MAY BE REQUIRED BY THE GOVERNMENT AND TO KEEP RECORDS RECORDS SHALL AT LEAST INCLUDE FOR EACH EMPLOYEE THE NAME, AD- DRESS, TELEPHONE NUMBERS, CONSTRUCTION TRADE, UNION AFFILI- ATION IF ANY, EMPLOYEE IDENTIFICATION NUMBER WHEN ASSIGNED, SOCIAL SECURITY NUMBER, RACE, SEX, STATUS (E G , MECHANIC, APPRENTICE TRAINEE, HELPER, OR LABORER), DATES OF CHANGES IN STATUS, HOURS WORKED PER WEEK IN THE INDICATED TRADE, RATE OF PAY, AND LOCATIONS AT WHICH THE WORK WAS PERFORMED RECORDS SHALL BE MAINTAINED IN AN EASILY UNDERSTANDABLE AND RETRIEVABLE FORM, HOWEVER, TO THE EXTENT THAT EXISTING RECORDS SATISFY THIS REQUIREMENT, CONTRACTORS SHALL NOT BE REQUIRED TO MAINTAIN SEPARATE RECORDS (15) NOTHING HEREIN PROVIDED SHALL BE CONSTRUED AS A LIMITATION UPON THE APPLICATION OF OTHER LAWS THAT ESTAB- LISH DIFFERENT STANDARDS OF COMPLIANCE OR UPON THE APPLICA- TION OF REQUIREMENTS FOR THE HIRING OF LOCAL OR OTHER AREA RESIDENTS (E G , THOSE UNDER THE PUBLIC WORKS EMPLOYMENT ACT OF 1977 AND THE COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM) 3 Notice The Agency hereby agrees that it will ensure that the notice set forth below shall be included in, and shall be a part of, all solicitations for offers and bids on all Federal and federally assisted construction contracts or subcontracts in excess of $10,000 to be performed in geographical areas designated by the Director, Office of Federal Contract Compliance Programs of the Department of Labor at 41 C F R § 60-4 2 NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY (EXECUTIVE ORDER 11246) (1) THE OFFEROR'S OR BIDDER'S ATTENTION IS CALLED TO THE "EQUAL OPPORTUNITY CLAUSE" AND THE "STANDARD FEDERAL EQUAL EMPLOYMENT SPECIFICATIONS" SET FORTH HEREIN (2) (a) THE GOALS AND THE TIMETABLES FOR MINORITY AND FEMALE PARTICIPATION, EXPRESSED IN PERCENTAGE TERMS FOR THE AAA032AD CONTRACTOR'S AGGREGATE WORK FORCE IN EACH TRADE ON ALL CONSTRUCTION WORK IN THE COVERED AREA, ARE AS FOLLOWS GOALS FOR MINORITY GOALS FOR FEMALE PARTICIPATION IN PARTICIPATION IN EACH TRADE EACH TRADE INSERT GOALS FOR INSERT GOALS FOR EACH YEAR EACH YEAR (b) THESE GOALS ARE APPLICABLE TO ALL THE CONTRAC- TOR'S CONSTRUCTION WORK (WHETHER OR NOT IT IS FEDERAL OR FEDERALLY ASSISTED) PERFORMED IN THE COVERED AREA IF THE CONTRACTOR PERFORMS CONSTRUCTION WORK IN A GEOGRAPHICAL AREA LOCATED OUTSIDE OF THE COVERED AREA, IT SHALL APPLY THE GOALS ESTABLISHED FOR SUCH GEOGRAPHICAL AREA WHERE THE WORK IS ACTUALLY PERFORMED WITH REGARD TO THIS SECOND AREA, THE CONTRACTOR ALSO IS SUBJECT TO THE GOALS FOR BOTH ITS FEDERALLY INVOLVED AND NONFEDERALLY INVOLVED CONSTRUCTION (c) THE CONTRACTOR'S COMPLIANCE WITH THE EXECU- TIVE ORDER AND THE REGULATIONS AT 41 C F R PART 60-4 SHALL BE BASED ON ITS IMPLEMENTATION OF THE EQUAL OPPORTUNITY CLAUSE, SPECIFIC AFFIRMATIVE ACTION OBLIGATIONS REQUIRED BY THE SPECIFICATIONS SET FORTH AT 41 C F R § 60-4 3(a), AND ITS EFFORTS TO MEET THE GOALS THE HOURS OF MINORITY AND FEMALE EMPLOYMENT AND TRAINING MUST BE SUBSTANTIALLY UNIFORM THROUGHOUT THE LENGTH OF THE CONTRACT, AND IN EACH TRADE, AND THE CONTRACTOR SHALL MAKE A GOOD FAITH EFFORT TO EMPLOY MINORITIES AND WOMEN EVENLY ON EACH OF ITS PROJECTS THE TRANSFER OF MINORITY OR FEMALE EMPLOYEES OR TRAINEES FROM CONTRACTOR TO CONTRACTOR OR FROM PROJECT TO PROJECT FOR THE SOLE PURPOSE OF MEETING THE CONTRACTOR'S GOALS SHALL BE A VIOLATION OF THE CONTRACT, THE EXECUTIVE ORDER, AND THE REGULATIONS IN AT C F R PART 60-4 COMPLIANCE WITH THE GOALS WILL BE MEASURED AGAINST THE TOTAL WORK HOURS PERFORMED (3) THE CONTRACTOR SHALL PROVIDE WRITTEN NOTIFICATION TO THE DIRECTOR OF THE OFFICE OF FEDERAL CONTRACT COMPLI- ANCE PROGRAMS WITHIN 10 WORKING DAYS OF AWARD OF ANY CONSTRUCTION SUBCONTRACT IN EXCESS OF $10,000 AT ANY TIER FOR CONSTRUCTION WORK UNDER THE CONTRACT RESULTING FROM THIS SOLICITATION THE NOTIFICATION SHALL LIST THE NAME, ADDRESS AND TELEPHONE NUMBER OF THE SUBCONTRACTOR, EMPLOYER AAA032AD IDENTIFICATION NUMBER OF THE SUBCONTRACTOR, ESTIMATED DOLLAR AMOUNT OF THE SUBCONTRACT, ESTIMATED STARTING AND COMPLETION DATES OF THE SUBCONTRACT, AND THE GEOGRAPHICAL AREA IN WHICH THE SUBCONTRACT IS TO BE PERFORMED (4) AS USED IN THIS NOTICE, AND IN THE CONTRACT RESULTING FROM THIS SOLICITATION, THE "COVERED AREA" IS (INSERT DESCRIP- TION OF THE GEOGRAPHICAL AREAS WHERE THE CONTRACT IS TO BE PERFORMED, GIVING THE STATE, COUNTY AND CITY, IF ANY) 4 Accommodations for the Physically Handicapped UMTA assisted construction, designs, and alterations shall be undertaken in accordance with and meet the requirements of the provisions of General Services Administration (GSA) regulations set forth at 41 C F R Subpart 101-19 6, unless an exception is granted in writing by UMTA or a waiver is granted in writing by GSA 5 Contract Security The Agency shall follow the requirements of 49 C F R § 18 36(h) or OMB Circular A-110, Attachment B, as applicable, and Federal (UMTA) guidelines with regard to bid guarantees and bonding requirements 6 Signs The Agency shall cause to be erected at the site of construction, and maintained during construction, signs satisfactory to the Department of Transportation identifying the Project and indicating that the Government is participating in the development of the Project 7 Sa&V Standards Pursuant to section 107 of the Contract Work Hours and Safety Standards Act and Department of Labor regulations set forth at 29 C F R § 1926, no laborer or mechamc working on a construction contract shall be required to work in surroundings or under working conditions that are unsanitary, hazardous, or dangerous to his or her health and safety as determined under construction and health standards promulgated by the Secretary of Labor 8 Liquidated Damages The Agency shall include in all contracts for construction a clause providing for liquidated damages, where appropriate Liquidated damages clauses are appropriate if the parties may reasonably expect to suffer damages (increased costs on the Project involved) from the late completion of the construction and the extent or amount of such damages would be difficult or impossible to determine The assessment for damages shall be at a specific rate per day for each day of overrun in contract time, and the rate must be specified in the third party contract Any liquidated damages recovered shall be credited to the Project account involved unless the Government permits otherwise V Pursuant to regulations set forth at 29 C F R Part 5, the following provisions shall be incorporated in each construction contract of $25,000 let by the Agency in carrying out the Project AAA032AD (a) ALL LABORERS AND MECHANICS EMPLOYED OR WORKING UPON THE SITE OF THE WORK (OR UNDER THE UNITED STATES HOUSING ACT OF 1937 OR UNDER THE HOUSING ACT OF 1949 IN THE CONSTRUCTION OR DEVELOPMENT OF THE PROJECT), WILL BE PAID UNCONDITIONALLY AND NOT LESS OFTEN THAN ONCE A WEEK, AND WITHOUT SUBSEQUENT DEDUCTION OR REBATE ON ANY ACCOUNT (EXCEPT SUCH PAYROLL DEDUCTIONS AS ARE PERMITTED BY REGULATIONS ISSUED BY THE SECRETARY OF LABOR UNDER THE COPELAND ACT, 29 C F R PART 3), THE FULL AMOUNT OF WAGES AND BONA FIDE FRINGE BENEFITS (OR CASH EQUIVALENTS THEREOF) DUE AT THE TIME OF PAYMENT COMPUTED AT RATES NOT LESS THAN THOSE CONTAINED IN THE WAGE DETERMINATION OF THE SECRE- TARY OF LABOR WHICH IS ATTACHED HERETO AND MADE A PART HEREOF, REGARDLESS OF ANY CONTRACTUAL RELATIONSHIP WHICH MAY BE ALLEGED TO EXIST BETWEEN THE CONTRACTOR AND SUCH LABORERS AND MECHANICS CONTRIBUTIONS MADE OR COSTS REASONABLY ANTICIPATED FOR BONA FIDE FRINGE BENEFITS UNDER SECTION 1(b) (2) OF THE DAVIS-BACON ACT ON BEHALF OF LABORERS OR MECHANICS ARE CONSIDERED WAGES PAID TO SUCH LABORERS OR MECHANICS, SUBJECT TO THE PROVISIONS OF 29 C F R § 5 5(a)(1)(rv), ALSO, REGULAR CONTRIBUTIONS MADE OR COSTS INCURRED FOR MORE THAN A WEEKLY PERIOD (BUT NOT LESS OFTEN THAN QUAR- TERLY) UNDER PLANS, FUNDS, OR PROGRAMS THAT COVER THE PARTICULAR WEEKLY PERIOD, ARE DEEMED TO BE CONSTRUCTIVELY MADE OR INCURRED DURING SUCH WEEKLY PERIOD SUCH LABORERS AND MECHANICS SHALL BE PAID THE APPROPRIATE WAGE RATE AND FRINGE BENEFITS ON THE WAGE DETERMINATION FOR THE CLASSIFI- CATION OF WORK ACTUALLY PERFORMED, WITHOUT REGARD TO SKILL, EXCEPT AS PROVIDED AT 29 C F R § 5 5(a)(4), LABORERS OR MECHANICS PERFORMING WORK IN MORE THAN ONE CLASSIFICATION MAY BE COMPENSATED AT THE RATE SPECIFIED FOR EACH CLASSIFI- CATION FOR THE TIME ACTUALLY WORKED THEREIN PROVIDED, THAT THE EMPLOYER'S PAYROLL RECORDS ACCURATELY SET FORTH THE TIME SPENT IN EACH CLASSIFICATION IN WHICH WORK IS PERFORMED THE WAGE DETERMINATION (INCLUDING ANY ADDI- TIONAL CLASSIFICATION AND WAGE RATES CONFORMED UNDER 29 C F R § 5 5(a) (1) (n) AND THE DAVIS-BACON POSTER (WH-1321) SHALL BE POSTED AT ALL TIMES BY THE CONTRACTOR AND ITS SUBCON- TRACTORS AT THE SITE OF THE WORK IN A PROMINENT AND ACCES- SIBLE PLACE WHERE IT CAN BE EASILY SEEN BY THE WORKERS (b) 1 THE CONTRACTING OFFICER SHALL REQUIRE THAT ANY CLASS OF LABORERS OR MECHANICS THAT IS NOT LISTED IN THE WAGE DETERMINATION AND THAT IS TO BE EMPLOYED UNDER THE CONTRACT SHALL BE CLASSIFIED IN CONFORMANCE WITH THE WAGE DETERMINATION THE CONTRACTING OFFICER SHALL APPROVE AN AAA032AD ADDITIONAL CLASSIFICATION AND WAGE RATE AND FRINGE BENEFITS THEREFOR ONLY WHEN THE FOLLOWING CRITERIA HAVE BEEN MET a THE WORK TO BE PERFORMED BY THE CLASSIFICA- TION REQUESTED IS NOT PERFORMED BY A CLASSIFICATION IN THE WAGE DETERMINATION, AND b THE CLASSIFICATION IS UTILIZED IN THE AREA BY THE CONSTRUCTION INDUSTRY, AND c THE PROPOSED WAGE RATE, INCLUDING ANY BONA FIDE FRINGE BENEFITS, BEARS A REASONABLE RELATIONSHIP TO THE WAGE RATES CONTAINED IN THE WAGE DETERMINATION 2 IF THE CONTRACTOR AND THE LABORERS AND MECHANICS TO BE EMPLOYED IN THE CLASSIFICATION (IF KNOWN), OR THEIR REPRESENTATIVES, AND THE CONTRACTING OFFICER AGREE ON THE CLASSIFICATION AND WAGE RATE (INCLUDING THE AMOUNT DESIGNATED FOR FRINGE BENEFITS WHERE APPROPRIATE), A REPORT OF THE ACTION TAKEN SHALL BE SENT BY THE CONTRACTING OFFICER TO THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, EMPLOYMENT STANDARDS ADMINISTRATION, U S DEPARTMENT OF LABOR, WASHINGTON, D C 20210 THE ADMINISTRATOR, OR AN AUTHORIZED REPRESENTATIVE, WILL APPROVE, MODIFY, OR DISAPPROVE EVERY ADDITIONAL CLASSIFICATION ACTION WITHIN 30 DAYS OF RECEIPT AND SO ADVISE THE CONTRACTING OFFICER OR WILL NOTIFY THE CONTRACTING OFFICER WITHIN THE 30-DAY PERIOD THAT ADDITIONAL TIME IS NECESSARY 3 IN THE EVENT THE CONTRACTOR, LABORERS OR ME- CHANICS TO BE EMPLOYED IN THE CLASSIFICATION OR THEIR REPRESENTATIVES, AND THE CONTRACTING OFFICER DO NOT AGREE ON THE PROPOSED CLASSIFICATION AND WAGE RATE (INCLUDING THE AMOUNT DESIGNATED FOR FRINGE BENEFITS, WHERE APPROPRIATE), THE CONTRACTING OFFICER SHALL REFER THE QUESTIONS INCLUDING THE VIEWS OF ALL INTERESTED PARTIES AND THE RECOMMENDATION OF THE CONTRACTING OFFICER, TO THE ADMINISTRATOR FOR DETERMINATION THE ADMINISTRATOR, OR AN AUTHORIZED REPRESENTATIVE, WILL ISSUE A DETERMINATION WITHIN 30 DAYS OF RECEIPT AND SO ADVISE THE CONTRACTING OFFICER OR WILL NOTIFY THE CONTRACTING OFFICER WITHIN THE 30-DAY PERIOD THAT ADDITIONAL TIME IS NECESSARY 4 THE WAGE RATE (INCLUDING FRINGE BENEFITS WHERE APPROPRIATE) DETERMINED PURSUANT TO 29 C F R § 5 5(a) (i) (1) (B) OR 29 C F R § 5 5(a) (t) (1) (C), SHALL BE PAID TO ALL WORKERS PERFORMING WORK IN THE CLASSIFICATION UNDER THIS CONTRACT AAA032AD FROM THE FIRST DAY ON WHICH WORK IS PERFORMED IN THE CLASSIFICATION (c) WHENEVER THE MINIMUM WAGE RATE PRESCRIBED IN THE CONTRACT FOR A CLASS OF LABORERS OR MECHANICS INCLUDES A FRINGE BENEFIT WHICH IS NOT EXPRESSED AS AN HOURLY RATE, THE CONTRACTOR SHALL EITHER PAY THE BENEFIT AS STATED IN THE WAGE DETERMINATION OR SHALL PAY ANOTHER BONA FIDE FRINGE BENEFIT OR AN HOURLY CASH EQUIVALENT THEREOF (d) IF THE CONTRACTOR DOES NOT MAKE PAYMENTS TO A TRUSTEE OR OTHER THIRD PERSON, THE CONTRACTOR MAY CONSIDER AS PART OF THE WAGES OF ANY LABORER OR MECHANIC THE AMOUNT OF ANY COSTS REASONABLY ANTICIPATED IN PROVIDING BONA FIDE FRINGE BENEFITS UNDER A PLAN OR PROGRAM, PROVID- ED, THAT THE SECRETARY OF LABOR HAS FOUND, UPON THE WRITTEN REQUEST OF THE CONTRACTOR, THAT THE APPLICABLE STANDARDS OF THE DAVIS-BACON ACT HAVE BEEN MET THE SECRETARY OF LABOR MAY REQUIRE THE CONTRACTOR TO SET ASIDE IN A SEPARATE ACCOUNT ASSETS FOR THE MEETING OF OBLIGATIONS UNDER THE PLAN OR PROGRAM 2 WITHHOLDING UMTA SHALL UPON ITS OWN ACTION OR UPON WRITTEN REQUEST OF AN AUTHORIZED REPRESENTATIVE OF THE DEPARTMENT OF LABOR WITHHOLD OR CAUSE TO BE WITHHELD FROM THE CONTRACTOR, UNDER THIS AGREEMENT OR ANY OTHER FEDERAL CONTRACT WITH THE SAME AGENCY OR ANY OTHER FEDERALLY -ASSISTED CONTRACT SUBJECT TO DAVIS-BACON PREVAIL- ING WAGE REQUIREMENTS, WHICH IS WITHHELD BY THE SAME PRIME CONTRACTOR, SO MUCH OF THE ACCRUED PAYMENTS OR ADVANCES AS MAY BE CONSIDERED NECESSARY TO PAY LABORERS AND MECHANICS, INCLUDING APPRENTICES, TRAINEES, AND HELPERS, EMPLOYED BY THE CONTRACTOR OR ANY SUBCONTRACTOR THE FULL AMOUNT OF WAGES REQUIRED BY THE CONTRACT IN THE EVENT OF FAILURE TO PAY ANY LABORER OR MECHANIC, INCLUDING ANY APPRENTICE, TRAINEE, OR HELPER, EMPLOYED OR WORKING ON THE SITE OF THE WORK (OR UNDER THE UNITED STATES HOUSING ACT OF 1937 OR UNDER THE HOUSING ACT OF 1949 IN THE CONSTRUCTION OR DEVELOPMENT OF THE PROJECT), ALL OR PART OF THE WAGES REQUIRED BY THE CONTRACT, UMTA MAY, AFTER WRITTEN NOTICE TO THE CONTRACTOR, SPONSOR, APPLICANT, OR OWNER, TAKE SUCH ACTION AS MAY BE NECESSARY TO CAUSE THE SUSPENSION OF ANY FURTHER PAYMENT, ADVANCE, OR GUARANTEE OF FUNDS UNTIL SUCH VIOLATIONS HAVE CEASED 3 PAYROLLS AND BASIC RECORDS (a) PAYROLLS AND BASIC RECORDS RELATING THERETO SHALL BE MAINTAINED BY THE AAA032AD CONTRACTOR DURING THE COURSE OF THE WORK AND PRESERVED FOR A PERIOD OF THREE YEARS THEREAFTER FOR ALL LABORERS AND MECHANICS WORKING AT THE SITE OF THE WORK (OR UNDER THE UNITED STATES HOUSING ACT OF 1937, OR UNDER THE HOUSING ACT OF 1949, IN THE CONSTRUCTION OR DEVELOPMENT OF THE PROJECT) SUCH RECORDS SHALL CONTAIN THE NAME, ADDRESS, AND SOCIAL SECURITY NUMBER OF EACH SUCH WORKER, HIS OR HER CORRECT CLASSIFICATION, HOURLY RATES OF WAGES PAID (INCLUDING RATES OF CONTRIBUTIONS OR COSTS ANTICIPATED FOR BONA FIDE FRINGE BENEFITS OR CASH EQUIVALENTS THEREOF OF THE TYPES DESCRIBED IN SECTION 1(b) (2) (B) OF THE DAVIS-BACON ACT), DAILY AND WEEKLY NUMBER OF HOURS WORKED, DEDUCTIONS MADE AND ACTUAL WAGES PAID WHENEVER THE SECRETARY OF LABOR HAS FOUND UNDER 29 C F R § 5 5(a) (1) (iv) THAT THE WAGES OF ANY LABORER OR MECHANIC INCLUDE THE AMOUNT OF ANY COSTS REASONABLY ANTICIPATED IN PROVIDING BENEFITS UNDER A PLAN OR PROGRAM DESCRIBED IN SECTION 1(b) (2) (B) OF THE DAVIS-BACON ACT, THE CONTRACTOR SHALL MAINTAIN RECORDS WHICH SHOW THAT THE COMMITMENT TO PROVIDE SUCH BENEFITS IS ENFORCE- ABLE, THAT THE PLAN OR PROGRAM IS FINANCIALLY RESPONSIBLE, AND THAT THE PLAN OR PROGRAM HAS BEEN COMMUNICATED IN WRITING TO THE LABORERS OR MECHANICS AFFECTED, AND RECORDS WHICH SHOW THE COSTS ANTICIPATED OR THE ACTUAL COSTS INCURRED IN PROVIDING SUCH BENEFITS CONTRACTORS EMPLOYING APPRENTICES OR TRAINEES UNDER APPROVED PROGRAMS SHALL MAINTAIN WRITTEN EVIDENCE OF THE REGISTRATION OF APPREN- TICESHIP PROGRAMS AND CERTIFICATION OF TRAINEE PROGRAMS, THE REGISTRATION OF THE APPRENTICES AND TRAINEES, AND THE RATIOS AND WAGE RATES PRESCRIBED IN THE APPLICABLE PRO- GRAMS (b) 1 THE CONTRACTOR SHALL SUBMIT WEEKLY FOR EACH WEEK IN WHICH ANY CONTRACT WORK IS PERFORMED A COPY OF ALL PAYROLLS TO UMTA IF UMTA IS A PARTY TO THE CONTRACT, BUT IF UMTA IS NOT SUCH A PARTY, THE CONTRACTOR WILL SUBMIT THE PAYROLLS TO THE APPLICANT, SPONSOR, OR OWNER, AS THE CASE MAY BE, FOR TRANSMISSION TO UMTA THE PAYROLLS SUBMITTED SHALL SET OUT ACCURATELY AND COMPLETELY ALL OF THE INFORMATION REQUIRED TO BE MAINTAINED UNDER 29 C F R § 5 5(a) (3) (1) THIS INFORMATION MAY BE SUBMITTED IN ANY FORM DESIRED OPTIONAL FORM WH-347 IS AVAILABLE FOR THIS PURPOSE AND MAY BE PURCHASED FROM THE SUPERINTENDENT OF DOCU- MENTS (FEDERAL STOCK NO 029-005-00014-1), U S GOVERNMENT PRINTING OFFICE, WASHINGTON, D C 20402 THE PRIME CONTRACTOR IS RESPONSIBLE FOR THE SUBMISSION OF COPIES OF PAYROLLS BY ALL SUBCONTRACTORS AAA032AD 2 EACH PAYROLL SUBMITTED SHALL BE ACCOMPA- NIED BY A "STATEMENT OF COMPLIANCE," SIGNED BY THE CONTRAC- TOR OR SUBCONTRACTOR OR HIS OR HER AGENT WHO PAYS OR SUPERVISES THE PAYMENT OF THE PERSONS EMPLOYED UNDER THE CONTRACT AND SHALL CERTIFY THE FOLLOWING (a) THAT THE PAYROLL FOR THE PAYROLL PERIOD CONTAINS THE INFORMATION REQUIRED TO BE MAINTAINED UNDER 29 C F R § 5 5 (a) (3) (1) AND THAT SUCH INFORMATION IS CORRECT AND COMPLETE, (b) THAT EACH LABORER OR MECHANIC (IN- CLUDING EACH HELPER, APPRENTICE, AND TRAINEE) EMPLOYED ON THE CONTRACT DURING THE PAYROLL PERIOD HAS BEEN PAID THE FULL WEEKLY WAGES EARNED, WITHOUT REBATE, EITHER DIRECTLY OR INDIRECTLY, AND THAT NO DEDUCTIONS HAVE BEEN MADE EITHER DIRECTLY OR INDIRECTLY FROM THE FULL WAGES EARNED, OTHER THAN PERMISSIBLE DEDUCTIONS AS SET FORTH AT 29 C F R PART 3, (c) THAT EACH LABORER OR MECHANIC HAS BEEN PAID NOT LESS THAN THE APPLICABLE WAGE RATES AND FRINGE BENEFITS OR CASH EQUIVALENTS FOR THE CLASSIFICATION OF WORK PERFORMED, AS SPECIFIED IN THE APPLICABLE WAGE DETERMINATION INCORPORATED INTO THE CONTRACT 3 THE WEEKLY SUBMISSION OF A PROPERLY EXECUTED CERTIFICATION SET FORTH ON THE REVERSE SIDE OF OPTIONAL FORM WH-347 SHALL SATISFY THE REQUIREMENT FOR SUBMISSION OF THE "STATEMENT OF COMPLIANCE" REQUIRED BY 29 C F R § 5 5(a) (3) (u) (B) 4 THE FALSIFICATION OF ANY OF THE ABOVE CERTIFICATIONS MAY SUBJECT THE CONTRACTOR OR SUBCONTRAC- TOR TO CIVIL OR CRIMINAL PROSECUTION UNDER 18 U S C § 1001 AND 31USC §231 (c) THE CONTRACTOR OR SUBCONTRACTOR SHALL MAKE THE RECORDS REQUIRED UNDER 29 C F R § 5 5(a) (3) (1) AVAILABLE FOR INSPECTION, COPYING, OR TRANSCRIPTION BY AUTHORIZED REPRESENTATIVES OF UMTA OR THE DEPARTMENT OF LABOR, AND SHALL PERMIT SUCH REPRESENTATIVES TO INTERVIEW EMPLOYEES DURING WORKING HOURS ON THE JOB IF THE CONTRACTOR OR SUBCONTRACTOR FAILS TO SUBMIT THE REQUIRED RECORDS OR MAKE THEM AVAILABLE, UMTA MAY, AFTER WRITTEN NOTICE TO THE CONTRACTOR, SPONSOR, APPLICANT, OR OWNER, TAKE SUCH ACTION AS MAY BE NECESSARY TO CAUSE THE SUSPENSION OF ANY FURTHER AAA032AD PAYMENT, ADVANCE, OR GUARANTEE OF FUNDS FURTHERMORE, FAILURE TO SUBMIT THE REQUIRED RECORDS UPON REQUEST OR MAKE SUCH RECORDS AVAILABLE MAY BE GROUNDS FOR DEBARMENT ACTION PURSUANT TO 29 C F R § 5 12 (a) APPRENTICES APPRENTICES WILL BE PERMITTED TO WORK AT LESS THAN THE PREDETERMINED RATE FOR THE WORK THEY PERFORMED WHEN THEY ARE EMPLOYED PURSUANT TO AND INDIVIDUALLY REGISTERED IN A BONA FIDE APPRENTICESHIP PROGRAM REGISTERED WITH THE U S DEPARTMENT OF LABOR, EMPLOYMENT AND TRAINING ADMINISTRATION, BUREAU OF APPREN- TICESHIP AND TRAINING, OR WITH A STATE APPRENTICESHIP AGENCY RECOGNIZED BY THE BUREAU, OR IF A PERSON IS EMPLOYED IN HIS OR HER FIRST 90 DAYS OF PROBATIONARY EMPLOYMENT AS AN APPRENTICE IN SUCH AN APPRENTICESHIP PROGRAM, WHO IS NOT INDIVIDUALLY REGISTERED IN THE PROGRAM, BUT WHO HAS BEEN CERTIFIED BY THE BUREAU OF APPRENTICESHIP AND TRAINING OR A STATE APPRENTICESHIP AGENCY (WHERE APPROPRIATE) TO BE ELIGIBLE FOR PROBATIONARY EMPLOYMENT AS AN APPRENTICE THE ALLOWABLE RATIO OF APPRENTICES TO JOURNEYMEN ON THE JOB SITE IN ANY CRAFT CLASSIFICATION SHALL NOT BE GREATER THAN THE RATIO PERMITTED TO THE CONTRACTOR AS TO THE ENTIRE WORK FORCE UNDER THE REGISTERED PROGRAM ANY WORKER LISTED ON A PAYROLL AT AN APPRENTICE WAGE RATE, WHO IS NOT REGISTERED OR OTHERWISE EMPLOYED AS STATED ABOVE, SHALL BE PAID NOT LESS THAN THE APPLICABLE WAGE ON THE WAGE DETER- MINATION FOR THE CLASSIFICATION OF WORK ACTUALLY PER- FORMED IN ADDITION, ANY APPRENTICE PERFORMING WORK ON THE JOB SITE IN EXCESS OF THE RATIO PERMITTED UNDER THE REGIS- TERED PROGRAM SHALL BE PAID NOT LESS THAN THE APPLICABLE WAGE RATE ON THE WAGE DETERMINATION FOR THE WORK ACTUAL- LY PERFORMED WHERE A CONTRACTOR IS PERFORMING CONSTRUC- TION ON A PROJECT IN A LOCALITY OTHER THAN THAT IN WHICH ITS PROGRAM IS REGISTERED, THE RATIOS AND WAGE RATES (EXPRESSED IN PERCENTAGES OF THE JOURNEYMAN'S HOURLY RATE) SPECIFIED IN THE CONTRACTOR'S OR SUBCONTRACTOR'S REGISTERED PROGRAM SMALL BE OBSERVED EVERY APPRENTICE MUST BE PAID AT NOT LESS THAN THE RATE SPECIFIED IN THE REGISTERED PROGRAM FOR THE APPRENTICE'S LEVEL OF PROGRESS, EXPRESSED AS A PERCENT- AGE OF THE JOURNEYMAN HOURLY RATE SPECIFIED IN THE APPLICA- BLE WAGE DETERMINATION APPRENTICES SHALL BE PAID FRINGE BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE APPREN- TICESHIP PROGRAM IF THE APPRENTICESHIP PROGRAM DOES NOT SPECIFY FRINGE BENEFITS, APPRENTICES MUST BE PAID THE FULL AMOUNT OF FRINGE BENEFITS LISTED ON THE WAGE DETERMINATION AAA032AD FOR THE APPLICABLE CLASSIFICATION IF THE ADMINISTRATOR DETERMINES THAT A DIFFERENT PRACTICE PREVAILS FOR THE APPLICABLE APPRENTICE CLASSIFICATION, FRINGE BENEFITS SHALL BE PAID IN ACCORDANCE WITH THAT DETERMINATION IN THE EVENT THE BUREAU OF APPRENTICESHIP AND TRAINING, OR A STATE APPRENTICESHIP AGENCY RECOGNIZED BY THE BUREAU, WITHDRAWS APPROVAL OF AN APPRENTICESHIP PROGRAM, THE CONTRACTOR WILL NO LONGER BE PERMITTED TO UTILIZE APPRENTICES AT LESS THAN THE APPLICABLE PREDETERMINED RATE FOR THE WORK PERFORMED UNTIL AN ACCEPTABLE PROGRAM IS APPROVED (b) TRAINEES EXCEPT AS PROVIDED IN 29 C F R § 5 16, TRAINEES WILL NOT BE PERMITTED TO WORK AT LESS THAN THE PREDETERMINED RATE FOR THE WORK PERFORMED UNLESS THEY ARE EMPLOYED PURSUANT TO AND INDIVIDUALLY REGISTERED IN A PROGRAM WHICH HAS RECEIVED PRIOR APPROVAL, EVIDENCED BY FORMAL CERTIFICATION BY THE U S DEPARTMENT OF LABOR, EMPLOYMENT AND TRAINING ADMINISTRATION THE RATIO OF TRAINEES TO JOURNEYMEN ON THE JOB SITE SHALL NOT BE GREATER THAN PERMITTED UNDER THE PLAN APPROVED BY THE EMPLOYMENT AND TRAINING ADMINISTRATION EVERY TRAINEE MUST BE PAID AT NOT LESS THAN THE RATE SPECIFIED IN THE APPROVED PROGRAM FOR THE TRAINEE'S LEVEL OF PROGRESS, EXPRESSED AS A PERCENT- AGE OF THE JOURNEYMAN HOURLY RATE SPECIFIED IN THE APPLICA- BLE WAGE DETERMINATION TRAINEES SHALL BE PAID FRINGE BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE TRAINEE PROGRAM IF THE TRAINEE PROGRAM DOES NOT MENTION FRINGE BENEFITS, TRAINEES SHALL BE PAID THE FULL AMOUNT OF FRINGE BENEFITS LISTED ON THE WAGE DETERMINATION UNLESS THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION DETERMINES THAT THERE IS AN APPRENTICESHIP PROGRAM ASSOCIATED WITH THE CORRESPONDING JOURNEYMAN WAGE RATE ON THE WAGE DETERMI- NATION, THAT PROVIDES FOR LESS THAN FULL FRINGE BENEFITS FOR APPRENTICES ANY EMPLOYEE LISTED ON THE PAYROLL AT A TRAINEE RATE WHO IS NOT REGISTERED AND PARTICIPATING IN A TRAINING PLAN APPROVED BY THE EMPLOYMENT AND TRAINING ADMINISTRATION SHALL BE PAID NOT LESS THAN THE APPLICABLE WAGE RATE ON THE WAGE DETERMINATION FOR THE CLASSIFICATION OF WORK ACTUALLY PERFORMED IN ADDITION, ANY TRAINEE PERFORMING WORK ON THE JOB SITE IN EXCESS OF THE RATIO PERMITTED UNDER THE REGISTERED PROGRAM SHALL BE PAID NOT LESS THAN THE APPLICABLE WAGE RATE ON THE WAGE DETERMINA- TION FOR THE WORK ACTUALLY PERFORMED IN THE EVENT THE EMPLOYMENT AND TRAINING ADMINISTRATION WITHDRAWS APPROV- AL OF A TRAINING PROGRAM, THE CONTRACTOR WILL NO LONGER BE PERMITTED TO UTILIZE TRAINEES AT LESS THAN THE APPLICABLE AAA032AD PREDETERMINED RATE FOR THE WORK PERFORMED UNTIL AN ACCEPTABLE PROGRAM IS APPROVED (c) EQUAL EMPLOYMENT OPPORTUNITY THE UTILIZATION OF APPRENTICES, TRAINEES, AND JOURNEYMEN UNDER 29 C F R PART 5 SHALL BE IN CONFORMITY WITH THE EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS OF EXECUTIVE ORDER 11246, AS AMENDED, AND 29 C F R PART 30 5 COMPLIANCE WITH COPELAND ACT REQUIREMENTS THE CONTRACTOR SHALL COMPLY WITH THE REQUIREMENTS OF 29 C F R PART 3, WHICH ARE INCORPORATED HEREIN BY REFERENCE 6 CONTRACT TERMINATION DEBARMENT A BREACH OF THE CONTRACT CLAUSES IN 29 C F R § 5 5 MAY BE GROUNDS FOR TERMINATION OF THE CONTRACT, AND FOR DEBARMENT AS A CONTRACTOR AND A SUBCONTRACTOR AS PROVIDED IN 29 C F R §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a) CERTIFICATION OF ELIGIBILITY BY ENTERING INTO THIS AGREEMENT OR A THIRD PARTY CONTRACT FINANCED UNDER THIS AGREEMENT, THE CONTRACTOR CERTIFIES THAT NEITHER IT (NOR HE NOR SHE) NOR ANY PERSON OR FIRM THAT HAS AN INTEREST IN THE CONTRACTOR'S FIRM IS A PERSON OR FIRM INELIGIBLE TO BE AWARDED GOVERNMENT CONTRACTS BY VIRTUE OF SECTION 3 (a) OF THE DAVIS-BACON ACT OR 29 C F R § 5 12(a) (1) (b) NO PART OF THIS CONTRACT SHALL BE SUBCONTRACT- ED TO ANY PERSON OR FIRM INELIGIBLE FOR AWARD OF A GOVERN- MENT CONTRACT BY VIRTUE OF SECTION 3(a) OF THE DAVIS-BACON ACT OR 29 C F R § 5 12(a) (1) AAA032AD (c) THE PENALTY FOR MAKING FALSE STATEMENTS IS PRESCRIBED IN THE U S CRIMINAL CODE, 18 U S C § 1001 10 OVERTIME REQUIREMENTS NO CONTRACTOR OR SUBCON- TRACTOR CONTRACTING FOR ANY PART OF THE CONTRACT WORK WHICH MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS SHALL REQUIRE OR PERMIT ANY SUCH LABORER OR MECHANIC IN ANY WORK WEEK IN WHICH HE OR SHE IS EMPLOYED ON SUCH WORK TO WORK IN EXCESS OF FORTY HOURS IN SUCH WORK WEEK UNLESS SUCH LABORER OR MECHANIC RECEIVES COMPENSA- TION AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE BASIC RATE OF PAY FOR ALL HOURS WORKED IN EXCESS OF FORTY HOURS IN SUCH WORK WEEK 11 VIOLATION LIABILITY FOR UNPAID WAGES LIQUIDATED DAMAGES IN THE EVENT OF ANY VIOLATION OF THE REQUIREMENTS OF 29 C F R § 5 5(b) (1), THE CONTRACTOR AND ANY SUBCONTRACTOR RESPONSIBLE THEREFOR SHALL BE LIABLE FOR THE UNPAID WAGES IN ADDITION, SUCH CONTRACTOR AND SUBCONTRACTOR SHALL BE LIABLE TO THE UNITED STATES (IN THE CASE OF WORK DONE UNDER CONTRACT FOR THE DISTRICT OF COLUMBIA OR A TERRITORY, TO SUCH DISTRICT OR TO SUCH TERRITORY) FOR LIQUIDATED DAMAGES SUCH LIQUIDATED DAMAGES SHALL BE COMPUTED WITH RESPECT TO EACH INDIVIDUAL LABORER OR MECHANIC, INCLUDING WATCHMEN AND GUARDS, EMPLOYED IN VIOLATION OF 29 C F R § 5 5(b) (1) IN THE SUM OF $10 FOR EACH CALENDAR DAY ON WHICH SUCH INDIVIDUAL WAS REQUIRED OR PERMITTED TO WORK IN EXCESS OF THE STAN- DARD WORK WEEK OF FORTY HOURS WITHOUT PAYMENT OF THE OVERTIME WAGES REQUIRED BY 29 C F R § 5 5(b) (1) 12 WITHHOLDING FOR UNPAID WAGES AND LIQUIDATED DAMAGES UMTA OR THE AGENCY SHALL UPON ITS OWN ACTION OR UPON WRITTEN REQUEST OF AN AUTHORIZED REPRESENTATIVE OF THE DEPARTMENT OF LABOR WITHHOLD OR CAUSE TO BE WITHHELD, FROM ANY MONEYS PAYABLE ON ACCOUNT OF WORK PERFORMED BY THE CONTRACTOR OR SUBCONTRACTOR UNDER ANY SUCH CONTRACT OR ANY OTHER FEDERAL CONTRACT WITH THE SAME PRIME CON- TRACTOR, OR ANY OTHER FEDERALLY -ASSISTED CONTRACT SUBJECT TO THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT, WHICH IS HELD BY THE SAME PRIME CONTRACTOR, SUCH SUMS AS MAY BE DETERMINED TO BE NECESSARY TO SATISFY ANY LIABILITIES OF SUCH CONTRACTOR OR SUBCONTRACTOR FOR UNPAID WAGES AND LIQUIDATED DAMAGES AS PROVIDED IN THE CLAUSE SET FORTH AT 29CFR §55(b)(2) 13 SUBCONTRACTS THE CONTRACTOR OR SUBCONTRACTOR SHALL INSERT IN ANY SUBCONTRACTS THE CLAUSES SET FORTH IN AAA032AD SUBSECTIONS 116 a (1) THROUGH (12) OF PART II OF THIS AGREEMENT AND ALSO A CLAUSE REQUIRING THE SUBCONTRACTORS TO INCLUDE THESE CLAUSES IN ANY LOWER TIER SUBCONTRACTS THE PRIME CONTRACTOR SHALL BE RESPONSIBLE FOR COMPLIANCE BY ANY SUBCONTRACTOR OR LOWER TIER SUBCONTRACTOR WITH THE CLAUSES SET FORTH IN SUBSECTIONS 116 a (1) THROUGH 116 a (12) OF PART II OF THE CITY'S AGREEMENT WITH THE GOVERNMENT Nonconstructton Contracts Pursuant to the regulations set forth at 29 C F R Part 5, the following provisions shall be incorporated in all federally -assisted non -construction contracts of $2,500 let by the Agency in carrying out the Project NONCONSTRUCTION CONTRACTS THE REQUIREMENTS OF THE CLAUSES CONTAINED IN 29 C F R § 5 5(b) OR SUBSECTIONS 116 a (10) THROUGH 116 a (13) OF PART II OF THIS AGREEMENT ARE APPLICABLE TO ANY CONTRACT SUBJECT TO THE OVERTIME PROVISIONS OF THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT AND NOT TO ANY OF THE OTHER STATUTES CITED IN 29 C F R § 5 1 THE CON- TRACTOR OR SUBCONTRACTOR SHALL MAINTAIN PAYROLLS AND BASIC PAYROLL RECORDS DURING THE COURSE OF THE WORK AND SHALL PRESERVE THEM FOR A PERIOD OF THREE YEARS FROM THE COMPLETION OF THE CONTRACT FOR ALL LABORERS AND MECHAN- ICS, INCLUDING GUARDS AND WATCHMEN, WORKING ON THE CONTRACT SUCH RECORDS SHALL CONTAIN THE NAME AND ADDRESS OF EACH SUCH EMPLOYEE, SOCIAL SECURITY NUMBER, CORRECT CLASSIFICATIONS, HOURLY RATES OF WAGES PAID, DAILY AND WEEKLY NUMBER OF HOURS WORKED, DEDUCTIONS MADE, AND ACTUAL WAGES PAID THE RECORDS TO BE MAINTAINED UNDER THIS CLAUSE SHALL BE MADE AVAILABLE BY THE CONTRACTOR OR SUB- CONTRACTOR FOR INSPECTION, COPYING, OR TRANSCRIPTION BY AUTHORIZED REPRESENTATIVES OF UMTA, DOT, OR THE DEPARTMENT OF LABOR, AND THE CONTRACTOR OR SUBCONTRACTOR WILL PERMIT SUCH REPRESENTATIVES TO INTERVIEW EMPLOYEES DURING WORKING HOURS ON THE JOB W Environmental Resource Energy Protection and Conservation Requirements 1 The National Environmental Policy Act of 1969, as amended, 42 U S C §§ 4321 e1 ems, Section 14 of the Urban Mass Transportation Act of 1964, as amended, 49 U S C app §§ 1601 et M, the Council on Environmental Quality regulations, 40 C F R Part 1500 et sue,., and the FHWA/UMTA regulation, "Environmental Impact and Related Procedures," 23 C F R Part 771, as amended, are applicable to the Project 2 The Agency shall comply with the provisions of the Clean Air Act, as amended, 42 U S C §§ 1857 Z sgg,,, the Federal Water Pollution Control Act, as amended, 33 U S C §§ 1251 e1 egg,,., and implementing regulations, in the facilities that are involved in the Project for which Federal assistance is given The Agency shall ensure that the facilities under AAA032AD ownership, lease or supervision, whether directly or under contract, that will be utilized in the accomplishment of the Project are not listed on the Environmental Protection Agency (EPA) List of Violating Facilities Contracts, subcontracts, and sub -grants of amounts in excess of $100,000 shall contain a provision requiring compliance with all applicable standards, orders, or requirements issued pursuant to Federal statute or regulation The Agency and any third parry contractor thereof shall be responsible for reporting any violations to City and UMTA and to the EPA Assistant Administrator for Enforcement In addition, the Agency shall notify City and UMTA of the receipt of any communication from the Director of the EPA Office of Federal Activities indicating that a facility to be utilized in the Project is under consideration for listing by EPA 3 No facilities or equipment shall be acquired, constructed, or improved as a part of the Project unless the Agency obtains satisfactory assurances that they are (or will be) designed and equipped to limit air pollution as provided in accordance with the following EPA regulations "Control of Air Pollution from Motor Vehicles and Motor Vehicle Engines," 40 C F R Part 85, "Control of Air Pollution from New Motor Vehicles and New Motor Vehicle Engines, Test Procedures for Light -Duty Vehicles and Light -Duty Trucks and Selective Enforcement Auditing of New Light -Duty Vehicles, Light -Duty Trucks and Heavy -Duty Engines," 40 C F R Part 86, and "Fuel Economy of Motor Vehicles," 40 C F R Part 600, in accordance with applicable federally -approved State Implementation Plan(s) (in particular, the Transportation Control Measures), and in accordance with appropriate UMTA directives and all other applicable standards 4 No publicly owned land from a park, recreation area, or wildlife or waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local sigmficance may be used for the Project unless specific findings required under 49 U S C § 303 are made by the Department of Transportation 5 The Agency shall assist the Government (UMTA) to comply with section 106 of the National Historic Preservation Act involving historic and archaeological preservation by (1) Consulting the State Historic Preservation Officer on the conduct of investigations, in accordance with Advisory Council on Historic Preservation regulations, "Protection of Historic and Cultural Properties," 36 C F R Part 800, to identify properties and resources listed in or eligible for inclusion in the National Register of Historic Places that may be affected by the Project, and notifying the Government (UMTA) of the existence of any such properties, and (2) Complying with all Federal requirements to avoid or mitigate adverse effects upon such properties 6 The Agency and its third party contractors shall comply with mandatory standards and policies relating to energy efficiency that are contained in applicable State energy conservation plans issued in compliance with the Energy Policy and Conservation Act, 42 U S C §§6321plMQ AAA032AD 7 Should the proposed Project cause adverse environmental effects, the Agency shall take all reasonable steps to minimize such effects pursuant to 49 U S C app § 1610, other applicable statutes, and the procedures set forth in 23 C F R Part 771 The Agency shall undertake all environmental mitigation measures that may be identified as commitments in applicable environmental documents (such as environmental assessments, environmental impact statements, memoranda of agreements, and statements required by 49 U S C § 303) and with any conditions imposed by the Government as part of a finding of no significant impact or a record of decision, all such mitigation measures are incorporated in and made part of this Agreement by reference In the event that some or all mitigation measures are deferred, once such measures are agreed upon by the Government, City and the Agency, those mitigation methods subsequently determined will be incorporated into this Agreement Such mitigation measures may not be modified or withdrawn without the express written approval of the Government 8 In carrying out the Project, the Agency shall make all appropriate efforts to foster the use of fly ash, substantially in compliance with EPA regulations "Guideline for Federal Procurement of Cement and Concrete Containing Fly Ash," 40 C F R Part 249 Should the Agency make a determination that the use of fly ash is inappropriate in a particular procurement of cement or concrete, the Agency shall provide UMTA a written justification to support that decision X MISCELLANEOUS 1 Agency shall comply with Department of Transportation regulations, "Uniform Relocation and Real Property Acquisition Regulation for Federal and Federally Assisted Programs," 49 C F R Part 24 2 Agency shall comply with the flood insurance purchase requirements of section 102(a) of the Flood Disaster Protection Act of 1973, 42 U S C § 4012(a), with respect to any construction or acquisition Project 3 Agency shall comply with the bus testing requirements as set forth in section 12(h) of the Urban Mass Transportation Act of 1964, as amended, 49 U S C app § 1608(h), and any nmplementmg regulations that may be issued thereunder 4 Agency shall comply with any regulations that may be issued to implement section 120) of the Urban Mass Transportation Act, of 1964, as amended, 49 U S C app § 16080) 5 If any invention, improvement, or discovery of the Agency or any of its third party contractors is conceived or first actually reduced to practice in the course of or under this Project, which invention, improvement, or discovery may be patentable under the laws of the United States of America or any foreign country, the Agency shall immediately notify the Government (UMTA) and provide a detailed report The rights and responsibilities of the Agency, third party contractors, the City and the Government with respect to such invention, improvement, or discovery will be determined in accordance with applicable Federal laws, regulations, policies, and any waiver thereof AAA032AD 6 Rights in Data a The term "subject data" as used herein means recorded information, whether or not copyrighted, that is delivered or specified to be delivered under this Agreement The term includes graphic or pictorial delineations in media such as drawings or photographs, text in specifications or related performance or design -type documents, machine forms such as punched cards, magnetic tape, or computer memory printouts, and information retained in computer memory Examples include, but are not limited to computer software, engineering drawings and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identifications, and related information The term does not include financial reports, cost analyses, and similar information incidental to Project administration b The following restrictions apply to all subject data first produced in the performance of this Agreement (1) Except for its own internal use, the Agency may not publish or reproduce such data in whole or in part, or in any manner or form, nor may the Agency authorize others to do so, without the written consent of the City and the Government, until such time as the Government may have either released or approved the release of such data to the public, this restriction on publication, however, does not apply to Agreements with academic institutions (2) As authorized by 49 C F R Part 18 34, the City and the Government (UMTA) reserve a royalty -free, non-exclusive and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for Federal Government purposes (a) Any work developed under a grant, cooperative agreement, sub - grant, sub -agreement, or third party contract, irrespective of whether or not a copyright has been obtained, and (b) Any rights of copyright to which a Agency, sub -recipient, or a third party contractor purchases ownerslup with Federal assistance c Agency understands and agrees that, in addition to the rights set forth in Subsection 119 b (2) of Part II of this Agreement, UMTA may make available to any UMTA recipient, sub -grantee, sub -recipient, third party contractor, or third party subcontractor, either UMTA's license in the copyright to the "subject data" derived under this Agreement or a copy of the "subject data" first produced under this Agreement d The City and Agency shall indemnify, save and hold harmless the Govern- ment, its officers, agents, and employees acting within the scope of their official duties against any liability, including costs and expenses, resulting from any willful or intentional violation by the Agency of proprietary rights, copyrights, or right of privacy, arising out of the publication, translation, reproduction, delivery, use, or disposition of any data furnished under this Agreement AAA032AD e Nothing contained in this clause shall imply a license to the City or Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the City or Government under any patent f Subsections b , c and d of Part II of this Section are not applicable to material furnished to the Agency by the U S Government and incorporated in the work furnished under the Agreement, provided that such incorporated material is identified by the Agency at the tune of delivery of such work g In the event that the Project, which is the subject of this Agreement, is not completed, for any reason whatsoever, all data developed under that Project shall become subject data as defined in Subsection 119 a of Part II of the City's Agreement with the Government and shall be delivered as the Government may direct h The requirements of Subsections a through g of this Section shall be included in all third party contracts of the Agency under this Project 7 Privacy Should the Agency, or any or its third party contractors, sub -grantees, sub - recipients or their employees administer any system of records on behalf of the Federal Govern- ment, the Privacy Act of 1974, 5 U S C § 552a (the Act), imposes information restrictions on the party administering the system of records a For purposes of the Privacy Act, when the Agreement involves the operation of a system of records on individuals to accomplish a Government function, the Agency and any third party contractors, sub -grantees, sub -recipients and their employees involved therein are considered to be Government employees with respect to the Government function The requirements of the Act, including the civil and criminal penalties for violations of the Act, apply to those individuals involved Failure to comply with the terms of the Act will make this Agreement subject to termination b As used herein (1) "Operation of a system of records" means performance of any of the activities associated with maintaining the system of records on behalf of the Government including the collection, use and dissemination of records (2) "Record" means any item, collection, or grouping of information about an individual that is maintained by the Agency on behalf of the Government including, but not limited to, his or her education, financial transactions, medical history, and criminal or employment history and that contains his or her name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph (3) "System of records" on individuals means a group of any records under the control of the Agency on behalf of the Government from which information is retrieved by the name of the individual or by some identifying number, symbol or other identifying particular assigned to the individual AAA032AD Y GENERAL PROVISIONS a Bonus or Commission. The Agency warrants that it has not paid, and also agrees not to pay, any bonus or commission for the purpose of obtaining approval of its application for the financial assistance hereunder b State or Territorial Law. Except to the extent that a Federal statute or regulation conflicts with State or territorial law, nothing in the Agreement shall require the Agency to observe or enforce compliance with any provision thereof, perform any other act, or do any other thing in contravention of any applicable State or territorial law, however, if any of the provisions of the Agreement violate any applicable State or territorial law, or if compli- ance with the provisions of the Agreement would require the Agency to violate any applicable State territorial law, the Agency shall at once notify the Government (UMTA) in writing in order that appropriate arrangements may be made by the Government and the Agency to the end that the Agency may proceed as soon as possible with the Project c Records The Agency will, for each local fiscal year ending on or after July 1, 1978, conform to the reporting system and the uniform system of accounts and records to the extent required by section 15 of the Urban Mass Transportation Act of 1964, as amended, 49 U S C app § 1611, effective for each local fiscal year ending on or after July 1, 1978, and applicable regulations "Uniform System of Accounts and Records and Reporting System," set forth at 49 C F R Part 630 d Severability If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of applicable law IN WITNESS W14 REOF, the p ies do 4 eby affix their signatures and enter into this Agreement as of the >� day of 1�, 1997 CITY OF DENTON, TEXAS JACK LLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY AAA032AD APPROVED AS TO LEGAL FORM OFFICE OF THE CITY ATTORNEY BY i I:C.f:4e1WI ATTEST m AAA032AD AAA032AD