HomeMy WebLinkAbout1992-149ORDINANCE NO. v`
AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF DENTON AND
SERVICES PROGRAM FOR AGING NEEDS (SPAN); AUTHORIZING THE MAYOR TO
EXECUTE THE AGREEMENT; APPROVING THE EXPENDITURE OF FUNDS THEREFOR;
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City Council has determined that it is in the best
interest of the citizens of the City to provide public funds to
Services Program for Aging Needs (SPAN), in consideration of the
valuable public services to be furnished by Services Program for
Aging Needs (SPAN) to the City of Denton in accordance with the
Agreement attached hereto; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. That the City Council hereby approves the Agreement
attached hereto, between the City of Denton and Services Program for
Aging Needs, and authorizes the Mayor to execute said agreement.
SECTION II. That the City Council authorizes the expenditure of
funds in the manner and amount as specified in the Agreement.
SECTION III. That this ordinance shall become effective im-
mediately upon its passage and approval. PASSED AND APPROVED this the 0 day of 44"?M' 19,,��pu
BOB CASTLEBERRY,
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:�
APP ED AS TO LEGAL FORM:
DEBRA A. DRAYOVITCH, CITY ATTORNEY
BY:
ALL00337
AGREEMENT BETWEEN THE
CITY OF DENTON, TEXAS AND SERVICES
PROGRAM FOR AGING NEEDS (SPAN)
This Agreement is hereby entered into by and between the City
of Denton, Texas, a Home Rule Municipal Corporation, (hereinafter
referred to as City) and Services Program for Aging Needs (SPAN),
a Texas non-profit corporation, (hereinafter referred to as Agen-
cy); 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 Adminis-
tration funds; and
WHEREAS, the City has received grants from the Federal Tran-
sit Administration and the Texas Department of Transportation to
provide public transportation in the Denton urbanized area and
wishes to conti:act with SPAN to provide such services;
NOW, THEREFORE, the parties hereto mutually agree as follows:
I. SCOPE OF SERVICES
The Agency shall in a satisfactory and proper manner perform
the following Project: undertake and complete the Project, and pro-
vide 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 con-
ditions of this Agreement, including:
A. Providing transportation within the city limits for persons
sixty years old or older and persons with disabilities during the
hours of 7:00 �..m. to 7:00 p.m., Monday through Friday.
B. Charging a fee to each passenger with a disability one
Dollar and Fifty Cents ($1.50) for every one-way trip on the demand
response system provided to that passenger.
C. Providing transportation services within the city limits to
the general public on four fixed routes from 7:00 a.m. to 7:00
p.m., Monday through Friday, for Seventy Five ($.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.
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 ac-
cordance with the terms and conditions of this agreement to provide
the services specified herein during times when Agency does not
operate. Transportation services provided by such subcontractees
shall be in accordance with the terms and conditions of this Agree-
ment.
II. 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 time 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 re-
view of the financial status of the project and will permit autho-
rized 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 contract between
the City and the State Department of Transportation, approved by
the City of Denton on September 1, 1992, a copy of which is at-
tached hereto as Exhibit "A" and incorporated by reference herein.
E. It will reduce to writing all of its rules, regulations, and
policies and file a copy with the City's Executive Director of
Finance or his 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 Ager..cy's fiscal year.
H. It will promptly pay all bills when submitted unless there
is a discrepancy in a bill; any errors or discrepancies in bills
PAGE 2
shall be promptly reported to the Executive Director of Finance or
his authorized representative for further direction.
I. It will appoint a representative who will be available to
meet with the Lxecutive Director of Finance and other City offi-
cials when requested.
J. It will indemnify and hold harmless the City from any and
all claims and suits arising out of the activities of the Agency,
its employees, and/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.
K. It will submit to the City of Denton copies of year-end
audited financial statements in accordance with the provisions
hereof.
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 $500,000
in general liability insurance coverage. It will name the City of
Denton, Texas and the State of Texas as additional insureds on said
policies and shall provide City with certificates evidencing such
coverage. Said policies shall not be cancellable unless 30 days
written notice is given to City before cancellation.
III. TIME OF PERFORMANCE
The services funded by the City shall be undertaken by the
Agency within the following time frame:
September 1, 1992 through September 30, 1993.
IV. METHOD OF PAYMENT
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, Attn: 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 and shall be reviewed within ten (10)
working days to ensure all expenses will be included in the City's
submission for reimbursement to the Federal Transit Administration
(FTA).
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 monies from
PACE 3
the State of Texas and the
should the City be required
the right to terminate this
In no event under the term:
pensation to be paid exceed
grants, as outlined in the
FTA.
FTA. Should the funds be curtailed, or
to curtail its funding, City shall have
Agreement immediately without penalty.
of this Agreement will the total com-
the amount of the City's FTA and State
City's contracts with the State and the
It is expressly understood that this contract in no way
obligates the General Fund or any other monies or credits of the
City of Denton.
F. The Citi shall not be obligated or liable under this con-
tract to any party other than the Agency for payment of any monies
or provision o1 any goods or services.
V.
The Agency agrees to participate in an implementation and main-
tenance system whereby its services can be continuously monitored.
The Agency agrees to make available its financial records for re-
view by the City at. the City's discretion. In addition, the Agency
agrees to provide the City copies of the following data and re-
ports:
A. All external or internal audits. Agency shall submit a copy
of the annual in&?pendent 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 m;.mber of participants in each transportation program
agency operate,.,.
VI. DIRECTORS' MEETINGS
During the term of this 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 time 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 descrip-
tion 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.
PAGE 4
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 pro-
ceedings by or against the Agency; or
E. If for any reason the carrying out of this Agreement is ren-
dered 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.
In case of termination, the Agency will remit to the City any
unexpended City funds. Acceptance of these funds shall not con-
stitute 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 com-
pliance 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 op-
portunity 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 ac-
counts for purposes of investigation to ascertain compliance with
local, state and Federal rules and regulations.
D. In the a✓ent of the Agency's non-compliance with the Federal
non-discrimination requirements, the Contract may be cancelled,
terminated, or susp=_nded 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,
PAGE 5
which would conflict in any manner or degree with the performance
of services required to be performed under this Contract. The
Agency further --ovenants that in the performance of this Contract,
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 him-
self, or others, particularly those with which he has family, busi-
ness, 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 Contract shall (1) participate in any decision relating to the
Contract 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 Contract or the proceeds thereof.
X. NEPOTISM
Agency shall not employ in any paid capacity any person who is
a member of the. immediate family of any person who is currently em-
ployed by Agency, or is a member of Agency's governing board. The
term "member of immediate family" includes: wife, husband, 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 inter-
ests 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 c(artification from DOL to FTA whose date is set
forth in the Notification of Grant Approval to the City. The Agen-
cy agrees to carry out the Grant in compliance with the conditions
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 thereun-
der.
PAGE 6
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, re-
views 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 th::s 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 statu-
tory and regulatory provisions. The Agency may, without prior
approval, procure an associated capital maintenance item eligible
under Section 9(j) of the Federal Transit Act, 49 U.S.C. App. Sec-
tion 1607a(j), by contract directly with the original manufacturer
or supplier of the item to be replaced, provided that the Agency
first certifier in writing to the Government that: (1) such manu-
facturer or supplier is the only source of such item; and (2) the
price of such !tem is no higher than the price paid for such item
by like customers.
G. Agency shall implement a project management plan, as ap-
proved by the Federal Government, in accordance with the require-
ments of Section 23 of the Federal Transit Act, as amended, 49
U.S.C. App. Section 1619, and any implementing regulations that may
be thereunder.
XII. ADDITIONAL COVENANTS OF AGENCY
A. Definitions. As used in this section:
1. Agreement means any Grant Agreement or Cooperative Agree-
ment.
2. Application means the signed and dated proposal as may be
amended for Federal financial assistance for the Project, together
with all explanatory, supporjting, and supplementary documents here-
tofore filed frith and accepted and approved by the Government
(UMTA) by or on behalf of the Agency.
3. Approval, Authorization, Concurrence, waiver means a con-
scious written act by an authorized official of the UMTA and City
PAGE 7
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, con-
currence, 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 Directi✓e includes the most recent circulars, notices,
and orders that present information about UMTA programs, applica-
tion 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 cogni-
zant agency, the Department of Transportation (DOT), or its opera-
ting 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 ownec`, that provides general or special transportation
service (but not including school bus, charter or sightseeing ser-
vice) to the pi:blic on a regular and continuing basis.
7. Project 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 contin-
gencies and reloce.tion) for which the total may be spent, and the
estimated cost of each of such items.
9. Secretary means Secretary of the Department of Transporta-
tion or his or her duly authorized designee.
10. UMTA means the Urban Mass Transportation Administration of
the U.S. Depari;.ment of Transportation.
11. City mans City of Denton, Texas.
B. In the performance of its obligations pursuant to this
Agreement, the Agency agrees to comply with all applicable provi-
sions of Federal, State, and local laws, regulations, and UMTA
directives. The Agency understands and agrees that Federal laws,
regulations, poli--ies, and related administrative practices in
force and made applicable to this Agreement on the date of execu-
tion may be modified from time 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
PAGE 8
Agreement of a contrary intent. Such contrary intent might be evi-
denced by express language in any amendments to the Agreement.
Likewise, new Federal laws, regulations, policies and administra-
tive 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, re-
cords, 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 immediately 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 notwithstanding 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.
F. Agency shall prepare and maintain a Project Budget. 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 Bud-
get 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
accounting sys-:.em, for the Project in a manner consistent with 49
C.F.R. § 18.2C, or OMB Circular A-110, as amended, as may be
applicable.
PAGE 9
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 com-
pany 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 bank account may be required when drawdowns are made by
letter of cred!.t. The Agency is encouraged to use banks that are
owned at least 50 percent by minority group members.
I. Expend::tures 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 purchas-
ed;
(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 regula-
tion, 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.
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 char-
ges. The Agency shall also maintain accurate records of all Pro-
ject 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 stating in proper detail the pur-
PAGE 10
pose for which .>uch check or order is drawn. All checks, payrolls,
invoices, contracts, vouchers, orders, or other accounting docu-
ments pertaining in whole or in part to the Project shall be clear-
ly 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 re-
presentatives 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 Secre-
tary of Transportation, the Agency shall require those contractors
to permit the Secretary of Transportation and the Comptroller Gen-
eral of the United States, or any of their duly authorized repre-
sentatives to inspect all work, materials, payrolls, and other data
and records with regard to the Project, and to audit the books, re-
cords, 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.
(a) The Agency shall report its cash disbursements and
balances in a timely manner as required by the City or Government.
(b) The Agency shall provide for effective control and
accountability for all Project funds consistent with Federal re-
quirements and procedures for use of the letter of credit.
(c) The Agency shall impose on its sub -recipients all ap-
plicable requirements of Subsections 105.b. (1) (a), (b), and (c)
of Part II of ::his 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 Intergovern-
mental Cooperation Act, 31 U.S.C. § 6503(a), or the Indian Self -
Determination Act, 23 U.S.C. § 450.
(2) Upon notice by the Government (UMTA) to the City of speci-
fic 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
PAGE 11
closeout, if such occurs, City may terminate this Agreement without
penalty.
P. Agency agrees that, upon written notice, the City may sus-
pend 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 pro-
gress or other'�liolation of the Agreement that significantly endan-
gers 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 cos':s 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 amou.it of the Federal assistance due, the Agency shall
promptly remit to the City that excess and interest as may be re-
quired by Subsections 105.b. and 1O5.e. of Part II of this Agree-
ment. 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 this Agreement:
a. 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 airy 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 assist�.nce.nade available by this Agreement as set forth in
49 C.F.R. § 18.32(gl or OMB Circular A-110, Attachment N, as may be
appropriate. The City also reserves the right to direct the dispo-
sition of real property or equipment financed with Federal assis-
tance funds made available under this Agreement, as set forth in 49
PAGE 12
C.F.R. §§ 18.31. and 18.32 or OMB Circular A-110, Attachment N, as
may be applicable.
b. The r,gency 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 is-
sue. 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 imme-
diately 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 guide-
lines shall be followed in determining the fair market value. Un-
less otherwise approved in writing by UMTA, the fair market value
of equipment and supplies will be the value of that property at the
time immediately before the reason occurred that prompted the deci-
sion 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 immediate-
ly before the loss or damage, irrespective of the extent of insur-
ance coverage. In the case of equipment and supplies, fair market
value shall be oased on straight line depreciation of the equipment
and supplies, based on the industry standard for useful life, irre-
spective 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 protec-
tion 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 thce Agency with respect to the preservation or conser-
vation of the value of the real property, equipment, or supplies
that, for any reason, have been withdrawn from service.
c. The Agency further agrees that the Project real proper-
ty, 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 compli-
ance with this Section and shall immediately notify the City in all
PAGE 13
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.
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, con-
tract, 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
1. Eaual Employment Opportunity - 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 employ-
ment 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 na-
tional origin. Such action shall include, but not be limited to,
the following: employment, upgrading, demotion or transfer, re-
cruitment 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 rela-
tionship) 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 provi-
sion in all subcontracts, except subcontracts for standard commer-
cial supplies or raw materials.
(b) If, as a condition of assistance, the Agency has sub-
mitted, and the City has approved, an equal employment opportunity
program that the Agency agrees to carry out, such program is incor-
porated 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
PAGE 14
set forth in Section 106 of Part II of this Agreement 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) Th3 Agency shall be responsible for meeting the re-
quirements regarding participation by minority business enterprises
(MBE) in Department of Transportation programs 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 REQUIRE-
MENTS OF 49 C.F.R. PART 23 APPLY TO THIS AGREEMENT.
(ii) MEE 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 PER-
FORMANCE OF CONTRACTS AND SUBCONTRACTS FINANCED IN WHOLE OR IN PART
WITH FEDERAL FINDS PROVIDED UNDER THIS AGREEMENT. IN THIS REGARD
ALL AGENCIES A14D CONTRACTORS SHALL TAKE ALL NECESSARY AND REASON-
ABLE STEPS IN ACCORDANCE WITH 49 C.F.R. PART 23 TO ENSURE THAT
MINORITY BUSINESS ENTERPRISES HAVE THE MAXIMUM OPPORTUNITY TO COM-
PETE FOR AND PERFORM CONTRACTS. AGENCY AND ITS CONTRACTORS SHALL
NOT DISCRIMINA`.i'E ON THE BASIS OF RACE, COLOR, NATIONAL ORIGIN OR
SEX IN THE AWARD AND PERFORMANCE OF CONTRACTS ASSISTED BY THE DE-
PARTMENT 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 Agen-
cy 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 agree-
ments with non••MBEs for the operation of major transportation -re-
lated activities for the provision of goods and services to the fa-
cility or to the public on the facility.
(ii) 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
PAGE 15
controlled by MBEs. These goals shall be for a specified period of
time and shall be bused 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 parti-
cipation 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 De-
partment of Transportation for 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.
(iii) 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 dis-
crimination 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. Nondiscrimination 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 Depart-
ment 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 509, 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 4220.3_B; and any revisions thereof, as may be applicable.
UMTA reserves the right to review the Agency's technical specifica-
tions 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 this Agree-
ment, no Federal funds shall be used to support procurements utili-
zing 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 Disputes or Breaches.
The U.S. Government has a vested interest in the settlement of any
dispute, defau t, or breach involving any federally -assisted third
PAGE 16
party contract. Agency agrees that the Government retains the
right to a proportionate share, based on the percentage of the
Federal share comni.tted 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 con-
tract. The Agency shall notify the City and Government of any
current or prospective litigation or major disputed claim pertain-
ing 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 party 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 whatsoev-
er, in any forum.
8. Ethics. The Agency shall maintain a written code or stan-
dards of conduct that shall govern the performance of its officers,
employees, board members, or agents engaged in the award and admin-
istration 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 con-
flict 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:
(1) The employee, officer, board member, or agent;
(2) Any member of his or her immediate family;
(3) His or her partner; or
(4) 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 stan-
dards 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.
PAGE 17
U. CONSTRUCTION CONTRACTS
The following provisions are applicable to federally assisted
construction contracts:
1. Nondisorimination. 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 mod-
ification 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, coopera-
tive agreement, contract, loan, insurance, or guarantee, or under-
taken pursuant to a Federal program involving the grant, coopera-
tive agreement; contract, loan, insurance, or guarantee, the fol-
lowing equal opportunity clause:
DURING THE PER'.?'ORMANCE OF THIS CONTRACT, THE CONTRACTOR AGREES AS
FOLLOWS:
(i) THE :ONTRACTOR WILL NOT DISCRIMINATE AGAINST ANY EMPLOY-
EE 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 EMPLOYMENT WITHOUT REGARD TO THEIR RACE, COLOR,
RELIGION, SEX, 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 TER-
MINATION; RATES OF PAY OR OTHER FORMS OF COMPENSATION; AND SELEC-
TION FOR TRAINING, INCLUDING APPRENTICESHIP. THE CONTRACTOR AGREES
TO POST IN CONSPICUOUS PLACES, AVAILABLE TO EMPLOYEES AND APPLI-
CANTS FOR EMPLOYMENT, NOTICES TO BE PROVIDED SETTING FORTH THE PRO-
VISIONS OF THIS NONDISCRIMINATION CLAUSE.
(ii) THE: CONTRACTOR WILL, IN ALL SOLICITATIONS OR ADVERTISE-
MENTS FOR EMPLOYEES PLACED BY OR ON BEHALF OF THE CONTRACTOR, STATE
THAT ALL QUALI?IED APPLICANTS WILL RECEIVE CONSIDERATION FOR EM-
PLOYMENT WITHOUT REGARD TO RACE, COLOR, RELIGION, SEX, OR NATIONAL
ORIGIN.
(iii) THE CONTRACTOR WILL SEND TO EACH LABOR UNION OR REPRE-
SENTATIVE OF WORKERS WITH WHICH IT HAS A COLLECTIVE BARGAINING
AGREEMENT OR OTHER CONTRACT OR UNDERSTANDING, A NOTICE TO BE PRO-
VIDED ADVISING THE LABOR UNION OR WORKERS' 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 CON-
SPICUOUS PLACES AVAILABLE TO EMPLOYEES AND APPLICANTS FOR EMPLOY-
MENT.
(iv) THE CONTRACTOR WILL COMPLY WITH ALL PROVISIONS OF EXEC-
UTIVE ORDER 11246 OF SEPTEMBER 24, 1965, AND OF THE RULES, REGULA-
TIONS, AND RELEVANT ORDERS OF THE SECRETARY OF LABOR.
PAGE 18
(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 PUR-
SUANT THERETO, AND WILL PERMIT ACCESS TO ITS BOOKS, RECORDS AND
ACCOUNTS BY THE SECRETARY OF LABOR AND UMTA FOR PURPOSES OF INVES-
TIGATION TO ASCERTAIN COMPLIANCE WITH SUCH RULES, REGULATIONS, AND
ORDERS.
(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 ACCORDANCE WITH PROCEDURES AUTHORIZED IN EXECUTIVE
ORDER 11246 OF SEPTEMBER 24, 1965, AND SUCH OTHER SANCTIONS MAY BE
IMPOSED AND REMEDIES INVOKED AS PROVIDED IN EXECUTIVE ORDER 11246
OF SEPTEMBER 24, 1965, OR BY RULE, REGULATION, OR ORDER OF THE
SECRETARY OF LABOR, OR AS OTHERWISE PROVIDED BY LAW.
(vii) THE CONTRACTOR WILL INCLUDE THE PROVISIONS OF PARA-
GRAPHS (a) THROUGH (g) OF THIS SUBSECTION IN EVERY SUBCONTRACT OR
PURCHASE ORDER UNLESS EXEMPTED BY RULES, REGULATIONS, OR ORDERS OF
THE SECRETARY OF LABOR ISSUED PURSUANT TO SECTION 204 OF EXECUTIVE
ORDER 11246 OF SEPTEMBER 24, 1965, SO THAT SUCH PROVISIONS SHALL BE
BINDING UPON EACH SUBCONTRACTOR 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 ENFORC-
ING SUCH PROVISIONS, INCLUDING SANCTIONS FOR NONCOMPLIANCE; PROVID-
ED, HOWEVER, THAT IF A CONTRACTOR BECOMES INVOLVED IN, OR IS
THREATENED WITH, LITIGATION WITH A SUBCONTRACTOR 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 prime contrac-
tor 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 prac-
tices 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 participat( 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 oppor-
tunity clause and the rules, regulations, and relevant orders of
the Secretary r.,f 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.
IV.Lh�V]
(e) The Ag=2ncy further agrees that it will refrain from enter-
ing into any contra.ct 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 Agreemenc; 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 compli-
ance has been received from such Agency; and refer the case to the
Department of Justice for appropriate legal proceedings.
2. Specifications. 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 ui 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 FEDER1kL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION
CONTRACT SPECIFICATIONS (EXECUTIVE ORDER 11246):
(1) AS USED IN THESE SPECIFICATIONS:
(a) "COVERED AREA" MEANS THE GEOGRAPHICAL AREA DESCRIBED 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 SECURITI' NUM.3ER USED ON THE EMPLOYER'S QUARTERLY FEDERAL TAX
RETURN, U.S. 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);
(ii) HISPANIC (ALL PERSONS OF MEXICAN, PUERTO RICAN, CUBAN,
CENTRAL OR SOUTH AMERICAN OR OTHER SPANISH CULTURE OR ORIGIN,
REGARDLESS OF RACE);
PAGE 20
(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
(iv) AMERICAN INDIAN OR ALASKAN NATIVE (ALL PERSONS HAVING
ORIGINS IN ANY OF THE ORIGINAL PEOPLES OF NORTH AMERICA AND MAIN-
TAINING IDENTIFIABLE TRIBAL AFFILIATIONS 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 PROVIS-ONS OF THESE SPECIFICATIONS AND THE NOTICE WHICH
CONTAINS THE APPLICABLE GOALS FOR MINORITY AND FEMALE PARTICIPATION
AND WHICH IS S_�,T FORTH IN THE SOLICITATIONS FROM WHICH THIS CON-
TRACT RESULTED.
(3) IF THE, CON'.'RACTOR 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 INDIVIDUALLY 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 OBLIGA-
TIONS 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 SUBCONTRACTC.RS TOWARD A GOAL IN AN APPROVED PLAN DOES NOT EXCUSE
ANY COVERED CO:JTRACTOR'S OR SUBCONTRACTOR'S FAILURE TO MAKE GOOD
FAITH EFFORTS TO ACHIEVE THE PLAN GOALS AND TIMETABLES.
(4) THE CONTRACTOR SHALL IMPLEMENT THE SPECIFIC AFFIRMATIVE
ACTION STANDARDS PROVIDED IN PARAGRAPHS (7) (a) THROUGH (p) OF
THESE SPECIFICATIONS. THE GOALS SET FORTH IN THE SOLICITATION FROM
WHICH THIS CONTRACT RESULTED ARE EXPRESSED 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 COVERED
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 AGREE-
MENT, NOR THE FAILURE BY A UNION WITH WHOM THE CONTRACTOR HAS A
COLLECTIVE BARGAINING AGREEMENT, TO REFER EITHER MINORITIES OR
PAGE 21
WOMEN SHALL EXCUSE THE CONTRACTOR'S OBLIGATIONS UNDER THESE SPECI-
FICATIONS, 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 CONTRACTOR MUST HAVE MADE A COMMITMENT TO EMPLOY
THE APPRENTICED AND TRAINEES AT THE COMPLETION OF THEIR TRAINING,
SUBJECT TO THE AVAI,�ABILITY OF EMPLOYMENT OPPORTUNITIES. TRAINEES
MUST BE TRAINED PURSUANT TO TRAINING PROGRAMS 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 CON-
TRACTOR'S COMPLIANCE WITH THESE SPECIFICATIONS SHALL BE BASED UPON
ITS EFFORT TO ACHIEVE MAXIMUM RESULTS FROM ITS ACTIONS. THE CON-
TRACTOR SHALL DOCUMENT THESE EFFORTS FULLY, AND SHALL IMPLEMENT
AFFIRMATIVE 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 ASSIGNED TO
WORK. THE CONTRACTOR, WHERE POSSIBLE, WILL ASSIGN TWO OR MORE
WOMEN TO EACH CONSTRUCTION PROJECT. THE CONTRACTOR SHALL SPECIFI-
CALLY ENSURE T1AT ALL FOREMEN, SUPERINTENDENTS, AND OTHER ON -SITE
SUPERVISORY PEI:SONNEL ARE AWARE OF AND CARRY OUT THE CONTRACTOR'S
OBLIGATION TO MAIN'PAIN SUCH A WORKING ENVIRONMENT, WITH SPECIFIC
ATTENTION TO M!NORITY OR FEMALE INDIVIDUALS WORKING AT SUCH SITES
OR IN SUCH FACILITIES.
(b) ESTABLISH AND MAINTAIN A CURRENT LIST OF MINORITY AND
FEMALE RECRUITMENT SOURCES, PROVIDE WRITTEN NOTICE TO MINORITY AND
FEMALE RECRUITMENT SOURCES AND TO COMMUNITY 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 RECRUIT-
MENT 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, TH`B 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 CONTRACTOR HAS A COLLECTIVE
BARGAINING AGREEMENT HAS NOT REFERRED 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.
PAGE 22
(e) DEVELOP ON-THE-JOB TRAINING OPPORTUNITIES AND/OR PARTI-
CIPATE IN TRAINING PROGRAMS FOR THE AREA WHICH EXPRESSLY INCLUDE
MINORITIES AND WOMEN, INCLUDING UPGRADING PROGRAMS AND APPRENTICE-
SHIP AND TRAINEE PROGRAMS RELEVANT TO THE CONTRACTOR'S EMPLOYMENT
NEEDS, ESPECIALLY THOSE PROGRAMS FUNDED OR APPROVED BY THE DEPART-
MENT OF LABOR. THE CONTRACTOR SHALL PROVIDE NOTICE OF THESE PRO-
GRAMS 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 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 EMPLOYMENT DECISIONS INCLUDING SPECIFIC REVIEW
OF THESE ITEMS WITH ON -SITE SUPERVISORY PERSONNEL SUCH AS SUPERIN-
TENDENTS, GENERAL FOREMAN, ETC., PRIOR TO THE INITIATION OF CON-
STRUCTION WORK AT ANY JOB SITE. A WRITTEN RECORD SHALL BE MADE AND
MAINTAINED IDENTIFYING THE TIME AND PLACE OF THESE MEETINGS, PER-
SONS ATTENDING, SUBJECT MATTER DISCUSSED, AND DISPOSITION OF THE
SUBJECT MATTER.
(h) DISSEMINATE THE CONTRACTOR'S EEO POLICY EXTERNALLY BY
INCLUDING IT IN ANY ADVERTISING IN THE NEWS MEDIA, SPECIFICALLY
INCLUDING MINORITY AND FEMALE NEWS MEDIA, AND PROVIDING WRITTEN
NOTIFICATION T'J AND DISCUSSING THE CONTRACTOR'S EEO POLICY WITH
OTHER CONTRACTORS AND SUBCONTRACTORS WITH WHOM THE CONTRACTOR DOES
OR ANTICIPATES DOING BUSINESS.
(i) DIRECT RECRUITMENT EFFORTS, BOTH ORAL AND WRITTEN, TO
MINORITY, FEMALE 7,ND COMMUNITY ORGANIZATIONS, TO SCHOOLS WITH
MINORITY AND FEMALE STUDENTS AND TO MINORITY AND FEMALE RECRUITMENT
AND TRAINING ORGANIZATIONS 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 CONTRACTOR SHALL SEND
WRITTEN NOTICE TO ORGANIZATIONS SUCH AS THE ABOVE, DESCRIBING THE
OPENINGS, SCREENING PROCEDURES, AND TESTS TO BE USED IN THE
SELECTION PROCESS.
(j) ENCOURAGE PRESENT MINORITY AND FEMALE EMPLOYEES TO
RECRUIT OTHER MINORITY PERSONS AND WOMEN AND, WHERE REASONABLE,
PROVIDE AFTER SCHOOL, SUMMER AND VACATION EMPLOYMENT TO MINORITY
AND FEMALE YOUTH, BOTH ON THE SITE AND IN OTHER AREAS OF THE
CONTRACTOR'S WORK FORCE.
PAGE 23
(k) VALIDATE ALL TESTS AND OTHER SELECTION REQUIREMENTS
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 EMPLOYEES TO SEEK OR TO PREPARE
FOR, THROUGH APPROPRIATE TRAINING, ETC., SUCH OPPORTUNITIES.
(M) ENSURE THAT SENIORITY PRACTICES, JOB CLASSIFICATIONS,
WORK ASSIGNMEN.I'S AND OTHER PERSONNEL PRACTICES DO NOT HAVE A
DISCRIMINATORY EFFECT BY CONTINUALLY MONITORING ALL PERSONNEL AND
EMPLOYMENT RELP..TED ACTIVITIES TO ENSURE THAT THE EEO POLICY AND THE
CONTRACTOR'S CBLIGATIONS UNDER THESE SPECIFICATIONS ARE BEING
CARRIED OUT.
(n) ENSURE THAT ALL FACILITIES AND COMPANY ACTIVITIES 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 SOLICITATIONS OF
OFFERS FOR SUBCONTRACTS FROM MINORITY AND FEMALE CONSTRUCTION
CONTRACTORS AND SUPPLIERS, INCLUDING CIRCULATION OF SOLICITATIONS
TO MINORITY AND FEMALE CONTRACTOR ASSOCIATIONS AND OTHER BUSINESS
ASSOCIATIONS.
(p) CCNDUCT A REVIEW, AT LEAST ANNUALLY, OF ALL SUPER-
VISORS' ADHERENCE TO AND PERFORMANCE UNDER THE CONTRACTOR'S EEO
POLICIES AND Al"FIRMATIVE ACTION OBLIGATIONS.
(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 -COMMUNITY, 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 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 '.CHAT 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 OBLIGA-
TION SHALL NOT BE A DEFENSE FOR THE CONTRACTOR'S NONCOMPLIANCE.
(9) A SIN.:,LE GOAL FOR MINORITIES AND A SEPARATE SINGLE GOAL
FOR WOMEN HAVE BEEN ESTABLISHED. THE CONTRACTOR, HOWEVER, IS
REQUIRED TO PROVIDE EQUAL EMPLOYMENT OPPORTUNITY AND TO TAKE
AFFIRMATIVE ACTION FOR ALL MINORITY GROUPS, BOTH MALE AND FEMALE,
AND ALL WOMEN, BOTH MINORITY AND NON -MINORITY. CONSEQUENTLY, THE
CONTRACTOR MAY BE IN VIOLATION OF THE EXECUTIVE ORDER IF A PARTI-
PAGE 24
CULAR 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 TIMETABLES 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 SUBCONTRACT WITH
ANY PERSON OR FIRM DEBARRED FROM GOVERNMENT CONTRACTS PURSUANT TO
EXECUTIVE ORDER 11246.
(12) THE CONTRACTOR SHALL CARRY OUT SUCH SANCTIONS AND PENAL-
TIES FOR VIOLATION OF THESE SPECIFICATIONS AND OF THE EQUAL OPPOR-
TUNITY CLAUSE, INCLUDING SUSPENSION, TERMINATION AND CANCELLATION
OF EXISTING SUBCONTRACTS AS MAY BE IMPOSED OR ORDERED PURSUANT TO
EXECUTIVE ORDER 11246, AS AMENDED, AND ITS IMPLEMENTING REGULA-
TIONS, 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 CONTR},CTOR, IN FULFILLING ITS OBLIGATIONS UNDER THESE
SPECIFICATIONS, SHALL IMPLEMENT SPECIFIC AFFIRMATIVE ACTION STEPS,
AT LEAST AS EXI'ENSIVE AS THOSE STANDARDS PRESCRIBED IN PARAGRAPH
(7) OF THESE SPECIFICATIONS, SO AS TO ACHIEVE MAXIMUM RESULTS FROM
ITS EFFORTS TO -ENSURE EQUAL EMPLOYMENT OPPORTUNITY. IF THE CONTRAC-
TOR FAILS TO COMPLY WITH THE REQUIREMENTS OF THE EXECUTIVE ORDER,
THE IMPLEMENTING 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, ADDRESS,'PELEPHONE NUMBERS, CONSTRUCTION TRADE, UNION AFFILI-
ATION IF ANY, F14PLOYEE 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 WEEP 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 LIMITA-
TION UPON THE APPLICATION OF OTHER LAWS THAT ESTABLISH DIFFERENT
STANDARDS OF COMPLIANCE OR UPON THE APPLICATION 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).
PAGE 25
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 CONTRACTOR'S
AGGREGATE WORK FORCE IN EACH TRADE ON ALL CONSTRUCTION WORK IN THE
COVERED AREA, ARE AS FOLLOWS:
TIMETABLES 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 CONTRACTOR'S
CONSTRUCTION W)RK (WHETHER OR NOT IT IS FEDERAL OR FEDERALLY
ASSISTED) PERFORMED IN THE COVERED AREA. IF THE CONTRACTOR PER-
FORMS CONSTRUCTION WORK IN A GEOGRAPHICAL AREA LOCATED OUTSIDE OF
THE COVERED AR A, 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 EXECUTIVE
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 CONTRAC-
TOR TO CONTRACTOR OR FROM PROJECT TO PROJECT FOR THE SOLE PURPOSE
OF MEETING THL CONTRACTOR'S GOALS SHALL BE A VIOLATION OF THE
CONTRACT, THE .EXECUTIVE ORDER, AND THE REGULATIONS IN AT C.F.R.
PAGE 26
PART 60-4. COMPLIANCE WITH THE GOALS WILL BE MEASURED AGAINST THE
TOTAL WORK HOURS PERFORMED.
(3) THE CGNTRACTOR SHALL PROVIDE WRITTEN NOTIFICATION TO THE
DIRECTOR OF THE OFFICE OF FEDERAL CONTRACT COMPLIANCE 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 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 DESCRIPTION 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 w<.iver is granted in writing by GSA.
5. Contract Security. The Agency shall follow the require-
ments of 49 C.F.R. !j 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 satisfacto-
ry to the Department of Transportation identifying the Project and
indicating that the Government is participating in the development
of the Project.
7. Safety Standards. Pursuant to section 107 of the Contract
Work Hours and Safety Standards Act and Department of Labor
regulations se"-. fcrth at 29 C.F.R. § 1926, no laborer or mechanic
working on a construction contract shall be required to work in
surroundings cr under working conditions that are unsanitary,
hazardous, or dangerous to his or her health and safety as deter-
mined under construction and health standards promulgated by the
Secretary of Labor.
8. Liquidated Damages. The Agency shall include in all con-
tracts 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 con-
struction and the extent or amount of such damages would be diffi-
cult 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.
PAGE 27
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 $25,00) let by the Agency in carrying out the Project.
1. MINIMUM WAGES.
(a) ALL 1ABORERS 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 DEVEL-
OPMENT 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 IS''UED 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 SECRETARY 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 CONSID-
ERED WAGES PAID TO SUCH LABORERS OR MECHANICS, SUBJECT TO THE PRO-
VISIONS OF 29 C.F.R. § 5.5(a)(l)(iv); ALSO, REGULAR CONTRIBUTIONS
MADE OR COSTS INCURRED FOR MORE THAN A WEEKLY PERIOD (BUT NOT LESS
OFTEN THAN QUARTERLY) 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 CLASSIFICATION OF WORK ACTUALLY PERFORM-
ED, 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 COMPEN13ATED AT THE RATE SPECIFIED FOR EACH
CLASSIFICATION 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 DETER-
MINATION (INCLUDING ANY ADDITIONAL CLASSIFICATION AND WAGE RATES
CONFORMED UNDER 29 C.F.R. § 5.5(a) (1) (ii) AND THE DAVIS-BACON
POSTER (WH-1321) SHALL BE POSTED AT ALL TIMES BY THE CONTRACTOR AND
ITS SUBCONTRACTORS AT THE SITE OF THE WORK IN A PROMINENT AND
ACCESSIBLE 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 OFrICER SHALL APPROVE AN ADDITIONAL CLASSIFICATION AND
WAGE RATE AND FRI.NGE BENEFITS THEREFOR ONLY WHEN THE FOLLOWING
CRITERIA HAVE BEEN MET:
PAGE 28
a. THE WORK TO BE PERFORMED BY THE CLASSIFICATION REQUEST-
ED 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 CON-
TAINED IN THE WAGE DETERMINATION.
2. IF THE CONTRACTOR AND THE LABORERS AND MECHANICS TO BE
EMPLOYED IN THE CLASSIFICATION (IF KNOWN), OR THEIR REPRESENTA-
TIVES, 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 ADDITION-
AL CLASSIFICATION :ACTION WITHIN 30 DAYS OF RECEIPT AND SO ADVISE
THE CONTRACTING OFFICER OR WILL NOTIFY THE CONTRACTING OFFICER
WITHIN THE 30-PAY PERIOD THAT ADDITIONAL TIME IS NECESSARY.
3. IN THE EVENT THE CONTRACTOR, LABORERS OR MECHANICS 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 QUES-
TIONS INCLUDING; THE VIEWS OF ALL INTERESTED PARTIES AND THE RECOM-
MENDATION 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 APPRO-
PRIATE) DETERMINED PURSUANT TO 29 C.F.R. § 5.5(a) (i) (1) (B) OR 29
C.F.R. § 5.5(a) (i) (1) (C), SHALL BE PAID TO ALL WORKERS PERFORM-
ING WORK IN THE CLASSIFICATION UNDER THIS CONTRACT 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, PROVIDED, THAT THE SECRETARY OF LABOR HAS FOUND, UPON THE
WRITTEN REQUEST OF THE CONTRACTOR, THAT THE APPLICABLE STANDARDS OF
PAGE 29
THE DAVIS-BACOV 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 PREVAILING 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, INCLUD-
ING 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 kPPRF.NTICE, 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 DEVEL-
OPMENT OF THE °ROJECT), ALL OR PART OF THE WAGES REQUIRED BY THE
CONTRACT, UMTA MAY, AFTER WRITTEN NOTICE TO THE CONTRACTOR, SPON-
SOR, 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 CONTRACTOR DURING THE
COURSE OF THE WORK AND PRESERVED FOR A PERIOD OF THREE YEARS THERE-
AFTER 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 CLASSIFICA-
TION, HOURLY RATES OF WAGES PAID (INCLUDING RATES OF CONTRIBUTIONS
OR COSTS ANTICIPATED FOR BONA FIDE FRINGE BENEFITS OR CASH EQUIV-
ALENTS THEREOF OF THE TYPES DESCRIBED IN SECTION 1(b) (2) (B) OF
THE DAVIS-BACOA 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 PROV.DING 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 ENFORCEABLE, THAT THE PLAN OR PROGRAM IS FINAN-
CIALLY RESPONSIBLE. AND THAT THE PLAN OR PROGRAM HAS BEEN COMMUNI-
CATED 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 APPRENTICESHIP PROGRAMS AND CERTIFICATION OF
TRAINEE PROGRAMS, THE REGISTRATION OF THE APPRENTICES AND TRAINEES,
AND THE RATIOS AND WAGE RATES PRESCRIBED IN THE APPLICABLE
PROGRAMS.
(b) 1 THE CONTRACTOR SHALL SUBMIT WEEKLY FOR EACH WEEK IN
WHICH ANY CONTPACT WORK IS PERFORMED A COPY OF ALL PAYROLLS TO UMTA
PAGE 30
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 INFORMATIOS REQUIRED TO BE MAINTAINED UNDER 29 C.F.R. §
5.5(a) (3) (i). 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 DOCUMENTS (FEDERAL
STOCK NO. 029-00(5-00014-1), U.S. GOVERNMENT PRINTING OFFICE,
WASHINGTON, D.C. 20402. THE PRIME CONTRACTOR IS RESPONSIBLE FOR
THE SUBMISSION OF COPIES OF PAYROLLS BY ALL SUBCONTRACTORS.
2, EACH PAYROLL SUBMITTED SHALL BE ACCOMPANIED BY A
"STATEMENT OF COMPLIANCE," SIGNED BY THE CONTRACTOR OR SUBCONTRAC-
TOR OR HIS OR KER AGENT WHO PAYS OR SUPERVISES THE PAYMENT OF THE
PERSONS EMPLOYED UNDER THE CONTRACT AND SHALL CERTIFY THE FOLLOW-
ING:
a. THAT THE PAYROLL FOR THE PAYROLL PERIOD CONTAINS
THE INFORMATION REQUIRED TO BE MAINTAINED UNDER 29 C.F.R. § 5.5 (a)
(3) (i) AND THAT SUCH INFORMATION IS CORRECT AND COMPLETE;
b. THAT EACH LABORER OR MECHANIC (INCLUDING 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 DEDUC-
TIONS HAVE BEE14 MADE EITHER DIRECTLY OR INDIRECTLY FROM THE FULL
WAGES EARNED, CTHER 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 CON-
TRACT.
3. THE WEEKLY SUBMISSION OF A PROPERLY EXECUTED CERTI-
FICATION 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) (ii) (B).
4. THE FALSIFICATION OF ANY OF THE ABOVE CERTIFICA-
TIONS MAY SUBJECT THE CONTRACTOR OR SUBCONTRACTOR TO CIVIL OR
CRIMINAL PROSECUTION UNDER 18 U.S.C. § 1001 AND 31 U.S.C. § 231.
(c) THE CONTRACTOR OR SUBCONTRACTOR SHALL MAKE THE
RECORDS REQUIRED UNDER 29 C.F.R. § 5.5(a) (3) (i) AVAILABLE FOR
INSPECTION, COPYING, OR TRANSCRIPTION BY AUTHORIZED REPRESENTATIVES
OF UMTA OR THE DEPARTMENT OF LABOR, AND SHALL PERMIT SUCH REPRE-
SENTATIVES TO INTERVIEW EMPLOYEES DURING WORKING HOURS ON THE JOB.
IF THE CONTRACTOR DR 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 PAYMENT,
ADVANCE, OR GUARANTEE OF FUNDS. FURTHERMORE, FAILURE TO SUBMIT THE
PAGE 31
REQUIRED RECORDS UPON REQUEST OR MAKE SUCH RECORDS AVAILABLE MAY BE
GROUNDS FOR DELARMENT ACTION PURSUANT TO 29 C.F.R. § 5.12.
4. APPRENTICES AND TRAINEES.
(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 RECOG-
NIZED 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 NCT 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 PERFORMED. IN
ADDITION, ANY A.PPRE4NTICE 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 DETERMINATION
FOR THE WORK ACTUALLY PERFORMED. WHERE A CONTRACTOR IS PERFORMING
CONSTRUCTION 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 SHALL BE OB-
SERVED. EVERY APPRENTICE MUST BE PAID AT NOT LESS THAN THE RATE
SPECIFIED IN THE LEGISTERED PROGRAM FOR THE APPRENTICE'S LEVEL OF
PROGRESS, EXPRESSED AS A PERCENTAGE OF THE JOURNEYMAN HOURLY RATE
SPECIFIED IN THE APPLICABLE WAGE DETERMINATION. APPRENTICES SHALL
BE PAID FRINGE BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE
APPRENTICESHIP 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 FOR THE APPLI-
CABLE CLASS IF'I�_ATION. IF THE ADMINISTRATOR DETERMINES THAT A
DIFFERENT PRAC7''ICE PREVAILS FOR THE APPLICABLE APPRENTICE CLASSIFI-
CATION, FRINGF 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 CON-
TRACTOR 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 PREDETER-
MINED 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.
PAGE 32
DEPARTMENT OF TABOR, 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 PERCENTAGE OF THE
JOURNEYMAN HOURLY RATE SPECIFIED IN THE APPLICABLE WAGE DETERMINA-
TION. 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 DETERMINATION, THAT PROVIDES FOR
LESS THAN FULI FRINGE BENEFITS FOR APPRENTICES. ANY EMPLOYEE
LISTED ON THE PAYROLL AT A TRAINEE RATE WHO IS NOT REGISTERED AND
PARTICIPATING YN 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 DETERMINATION FOR THE WORK ACTUALLY PERFORMED. IN THE EVENT
THE EMPLOYMENT AND TRAINING ADMINISTRATION WITHDRAWS APPROVAL OF A
TRAINING PROGRAM, THE CONTRACTOR WILL NO LONGER BE PERMITTED TO
UTILIZE TRAINEES AT LESS THAN THE APPLICABLE 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 CONFORMIll 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. § 5.12.
7. COMPLIANCE WITH DAVIS-BACON AND RELATED ACT REQUIREMENTS.
ALL RULINGS AND INTERPRETATIONS OF THE DAVIS-BACON AND RELATED ACTS
CONTAINED IN 29 C.F.R. PARTS 1, 3, AND 5 ARE INCORPORATED HEREIN BY
REFERENCE.
8. DISPUTES CONCERNING LABOR STANDARDS. DISPUTES ARISING OUT
OF THE LABOR :TANDARDS PROVISIONS OF THIS CONTRACT SHALL NOT BE
SUBJECT TO THE GENERAL DISPUTES CLAUSE OF THIS CONTRACT. SUCH DIS-
PUTES SHALL BE RESOLVED IN ACCORDANCE WITH THE PROCEDURES OF THE
DEPARTMENT OF ),ABOR SET FORTH IN 29 C.F.R. PARTS 5, 6, AND 7. DIS-
PUTES WITHIN THE PSEANING OF THIS CLAUSE INCLUDE DISPUTES BETWEEN
THE CONTRACTOR (OR ANY OF ITS SUBCONTRACTORS) AND THE CONTRACTING
PAGE 33
AGENCY, THE U. S. DEPARTMENT OF LABOR, OR THE EMPLOYEES OR THEIR
REPRESENTATIVES.
9. (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 SUBCONTRACTED TO ANY
PERSON OR FIRM INELIGIBLE FOR AWARD OF A GOVERNMENT CONTRACT BY
VIRTUE OF SECTION 3(a) OF THE DAVIS-BACON ACT OR 29 C.F.R. §
5.12(a) (1).
(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 SUBCONTRACTOR
CONTRACTING FOR ANY PART OF THE CONTRACT WORK WHICH MAY REQUIRE OR
INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS SHALL REQUIRE OR
PERMIT ANY SUCF 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 THERE-
FOR SHALL BE LIABLE FOR THE UNPAID WAGES. IN ADDITION, SUCH CON-
TRACTOR 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 LIQUI-
DATED 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 STANDARD 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 CON-
TRACT OR ANY OTHER FEDERAL CONTRACT WITH THE SAME PRIME CONTRACTOR,
OR ANY OTHER FEDERALLY -ASSISTED CONTRACT SUBJECT TO THE CONTRACT
WORK HOURS AND SAFETY STANDARDS ACT, WHICH IS HELD BY THE SAME
PRIME CONTRACTOR, SUCH SUMS AS MAY BE DETERMINED TO BE NECESSARY TO
SATISFY ANY LIABILITIES OF SUCH CONTRACTOR OR SUBCONTRACTOR FOR
PAGE 34
UNPAID WAGES AND L12UIDATED DAMAGES AS PROVIDED IN THE CLAUSE SET
FORTH AT 29 C.F.R. § 5.5(b) (2).
13. SUBCONTRACTS. THE CONTRACTOR OR SUBCONTRACTOR SHALL INSERT
IN ANY SUBCONTRACTS THE CLAUSES SET FORTH IN SUBSECTIONS 116.a.(1)
THROUGH (12) OF PART II OF THIS AGREEMENT AND ALSO A CLAUSE REQUIR-
ING THE SUBCONTRACTORS TO INCLUDE THESE CLAUSES IN ANY LOWER TIER
SUBCONTRACTS. THE PRIME CONTRACTOR SHALL BE RESPONSIBLE FOR COM-
PLIANCE 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 THIS AGREEMENT.
Nonconstruotion Contracts. Pursuant to the regulations set
forth at 29 C.F.R. Part 5, the following provisions shall be
incorporated ir: 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.S.R. § 5.1. THE CONTRACTOR 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 MECHANICS,
INCLUDING GUARDS AND WATCHMEN, WORKING ON THE CONTRACT. SUCH
RECORDS SHALL CONTAIN THE NAME AND ADDRESS OF EACH SUCH EMPLOYEE,
SOCIAL SECURITY NUMBER, CORRECT CLASSIFICATIONS, HOURLY RATES OF
WAGES PAID, DAILY AND WEEKLY NUMBER OF HOURS WORKED, DEDUCTIONS
MADE, AND ACTUAL WAGES PAID. 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
REPRESENTATIVE:; 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.
1. The National Environmental Policy Act of 1969, as amended,
42 U.S.C. §§ 4321 et sea.; Section 14 of the Urban Mass Transporta-
tion Act of 1964, as amended, 49 U.S.C. app. §§ 1601 et sea.; the
Council on Environmental Quality regulations, 40 C.F.R. Part 1500
et sea.; 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 amt>.nded, 42 U.S.C. §§ 1857 et sea.; the Federal Water
Pollution Cont::ol Act, as amended, 33 U.S.C. §§ 1251 et sea.; and
implementing regulations, in the facilities that are involved in
the Project for which Federal assistance is given. The Agency
shall ensure t.iat the facilities under ownership, lease or super-
vision, whethe_• directly or under contract, that will be utilized
PAGE 35
in the accomplishment of the Project are not listed on the Environ-
mental Protection Agency (EPA) List of Violating Facilities. Con-
tracts, subcontra^ts, and subgrants of amounts in excess of
$100,000 shall contain a provision requiring compliance with all
applicable standards, orders, or requirements issued pursuant to
Federal statuts: or regulation. The Agency and any third party
contractor thereof shall be responsible for reporting any viola-
tions 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 En-
gines; Test Procedures for Light -Duty Vehicles and Light -Duty
Trucks and Selective Enforcement Auditing of New Light -Duty Vehi-
cles, 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 accor-
dance 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 signifi-
cance as determined by the Federal, State, or local officials
having jurisdiction thereof, or any land from an historic site of
national, State, or local significance 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 invol-
ving historic and archaeological preservation by:
(1) Consulting the State Historic Preservation Officer on the
conduct of investigations, in accordance with Advisory Council on
Historic Preserva::ion regulations, "Protection of Historic and
Cultural Properties," 36 C.F.R. Part 800, to identify properties
and resources 'i.isted in or eligible for inclusion in the National
Register of Hi.°:toric Places that may be affected by the Project,
and notifying the Government (UMTA) of the existence of any such
properties; anU
(2) Comply.ng with all Federal requirements to avoid or miti-
gate adverse effects upon such properties.
6. The Agenc17 and its third party contractors shall comply
with mandatory standards and policies relating to energy efficiency
PAGE 36
that are contained in applicable State energy conservation plans
issued in compliance with the Energy Policy and Conservation Act,
42 U.S.C. §§ 6321 et seq.
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 docu-
ments (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 deci-
sion; 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 G<)vernment, City and the Agency, those mitigation
methods subsequently determined will be incorporated into this
Agreement. Such mitigation measures may not be modified or with-
drawn 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 implementing
regulations that may be issued thereunder.
4. Agency shall comply with any regulations that may be issued
to implement section 12(j) of the Urban Mass Transportation Act, of
1964, as amended, 49 U.S.C. app. § 1608(j).
5. If any,invention, improvement, or discovery of the Agency
or any of ite, third party contractors is conceived or first
actually reduced to practice in the course of or under this
PAGE 37
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 responsibili-
ties 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.
6. Rights _in Data.
a. The te.r.•m "subject data" as used herein means recorded
information, wnether 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, mag-
netic 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 sy:ch 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 irrevo-
cable license to reproduce, publish or otherwise use, and to autho-
rize others to use, for Federal Government purposes:
(a) Any work developed under a grant, cooperative agree-
ment, sub -grant, sub -agreement, or third party contract, irrespec-
tive of whether or not a copyright has been obtained; and
(b) Any rights of copyright to which a Agency, sub -recipi-
ent, or a third party contractor purchases ownership 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 Agree-
ment, UMTA may make. available to any UMTA recipient, sub -grantee,
sub -recipient, third party contractor, or third party subcontrac-
tor, either UMTA's license in the copyright to the "subject data"
PAGE 38
derived under t`Zis 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 Government, its officers, agents, and employees acting
within the scope of their official duties against any liability,
including costs and expenses, resulting from any willful or inten-
tional 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.
e. Nothing contained in this clause shall imply a license to
the City or Government under any patent or be construed as affect-
ing 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 Agree-
ment; provided that such incorporated material is identified by the
Agency at the time of delivery of such work.
g. In the avert that the Project, which is the subject of this
Agreement, is ;rot 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 this Agreement and shall be
delivered as the Government may direct.
h. The requirements of Subsections a. through g. of this Sec-
tion 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 o•-)eration of a system of records on individuals to
accomplish a Government function, the Agency and any third party
contractors, rub -grantees, sub -recipients and their employees
involved therein afe considered to be Government employees with
respect to the Government function. The requirements of the Act,
including the cavil 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 termina-
tion.
b. As used herein:
(1) 110psration of a system of records" means performance
of any of the activities associated with maintaining the system of
PAGE 39
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 iden-
tifying 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 Gov-
ernment from which information is retrieved by the name of the
individual or by some identifying number, symbol or other identify-
ing particular assigned to the individual.
C. 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 infornati.on about individuals retrievable by the indi-
vidual's name .)r other identifier assigned to the individual. A
system of records subject to the Act may not be used in the per-
formance of tl.is 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 employee; 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, su`: grant, or sub -agreement to accomplish a Govern-
ment function, a Privacy Act notification informing the third party
contractor, sub -grantee, or sub -recipient that it will be required
to design, devolop, 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 penal-
ties; and
PAGE 40
(4) To include the text of Subsections 125.c.(1) through
125.c.(4) of Part II of this Agreement, 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 Agree-
ment or which may involve the design, development, or operation of
such a system Gf records on behalf of the Government.
8. Prohib9,tion of Drugs.
The Agency agrees to comply with the following regulations: UMTA
regulations, "Control of Drug Use in Mass Transportation Opera-
tions," 49 C.F.R. Part 653; Department of Transportation regula-
tions, "Drug -Free Workplace Requirements (Grants)," 49 C.F.R. Part
29, Subpart F; and Department of Transportation regulations, "Pro-
cedures for Transportation Workplace Drug Testing Programs,"
49 C.F.R. Part 40.
9. 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 (Nonprocurement)," 49 C.F.R. Part 29, and otherwise
comply with the requirements of those regulations.
10. 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 sea.,
and/or 49 U.S.C. app. § 1607(h), as may be deemed by the Government
to be appropriate. The terms of Department of Transportation regu-
lations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, are
applicable to this Project.
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 ether thing in contravention of any applicable State
or territorial law,* however, if any of the provisions of the Agree-
ment violate ar.y 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.
PAGE 41
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 regu-
lations "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 WHEREOF, the parties do hereby a x thei si na-
tures and enter into this Agreement as of the ay of\,
1992.
CITY OF DENTON, TEXAS
BOB CASTLEBERRY,
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APP ED A TO LEGAL FORM:
DEB A. DRAYO"ITCH, CITY ATTORNEY
) L
BY: Jae
SERVICES PROGRAM FOR AGING NEEDS
DIRECTOR
ATTEST:
BY:
SECRETARY
PAGE 42
EXHIBIT "A'
CONTRACTOR: CITY OF DENTON
CONTRACT NUMBER: 513XXF6014
STATE PROJECT NO.: TX93-90-0418
PUBLIC TRANSPORTATION CONTRACT
THE STATE OF TEXAS X
THE COUNTY OF TRAVIS i
THIS CONTRACT is made by and between the State of Texas, acting
by and through the Texas Department of Transportation,
hereinafter called the State, and the City of Denton hereinafter
called the Contractor.
W I T N E S S E T H
WHEREAS, the State is the administering agency for the State
Public Transportation Fund as prescribed by Article 6663c,
V.T.C.S.; and
WHEREAS, the Contractor desires to obtain public transportation
funds from the State for the purpose of establishing and
maintaining public and mass transportation systems; and
WHEREAS, the State is authorized under Article 6663b, V.T.C.S.,
to assist the Contractor in procuring federal aid for the purpose
of establishing and maintaining public and mass transportation
projects, hereinafter called the Project; and
WHEREAS, the Texas Transportation Commission passed Commission
Minute Order No. 101219 authorizing the State to enter into the
necessary agreements with the Contractor for funding public
transportation projects; and
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants hereinafter set forth, the parties hereby agree
as follows.
1
A G R E E M E N T
ARTICLE 1. CONTRACT PERIOD
This contract becomes effective on the final date of execution by
the State's Public Transportation Director and shall terminate on
August 31, 1993 unless otherwise terminated or modified as
hereinafter provided. Termination of the Contract shall not
release the Contractor from the property management standards
outlined in Article 9 below.
ARTICLE 2. PROJECT DESCRIPTION
The Contractor shall undertake the public transportation project
as described in Attachment A and in accordance with the terms and
conditions of this Contract. Further, the Contractor shall
comply with the provisions of the Uniform Grant and Contract
Management Standards prepared in response to the Uniform Grant
and Contract Management Act of 1981.
The Contractor shall commence, carry on and complete the Project
with all practicable dispatch, in a sound, economical and
efficient manner in accordance with the provisions of Attachment
A.
ARTICLE 3.
A. The maximum amount payable under this Contract without
modification is $138,505.00. The State will reimburse the
Contractor for the authorized costs incurred in carrying out
this project which are further described in the budget
contained in Attachment A. The State's payment to the
Contractor is contingent upon the availability of Federal
and/or State appropriated funds. The State shall have no
liability for any claim submitted by the Contractor or its
subcontractors, vendors, manufacturers'or suppliers if
sufficient Federal or State funds are not available to pay
the Contractor's claims.
B. To be eligible for reimbursement under this Contract, a cost
must be incurred within the contract period specified in
Article 1 above and be included in the project budget
contained in Attachment A.
2
C. Payment of costs incurred under this Contract is further
governed by cost principles outlined in applicable Federal
Office of Management and Budget (OMB) publications as
follows:
State or Local Governments OMB Circular A-87
Nonprofit organizations OMB Circular A-122
Colleges, Universities,
Educational Institutions OMB Circular A-21
D. Costs claimed by the Contractor shall be actual net costs,
that is, the price paid minus any refunds, rebates or other
items or value received by the Contractor that have the
effect of reducing the cost actually incurred. in
particular, fares and other passenger revenues shall be so
identified on the Contractor's billing to the State.
E. All major items or equipment, as described in the capital
budget in Attachment A, shall be included in this contract
as direct costs. The Contractor hereby certifies that items
of equipment included in direct costs have been excluded
from the indirect costs.
F. Requests for payment are to be submitted to the State no
more frequently than on a monthly basis, except as noted
below, on invoice statements acceptable to the State.
Additional documentation to support all costs incurred
during the billing period may be required at the discretion
of the State. As a minimum, each billing must be
accompanied by a summary by budget line item which indicates
the total amount authorized for each line item, previous
expenditures, current period expenditures and the balance
remaining in the line item. The original invoice with
required documentation is to be submitted to the following
address:
Mr. James M. Huffman, P. E.
District Engineer
Texas Department of Transportation
P. 0. Box 3067
Dallas, TX 75221-3067
G. The State will make payment within thirty days of the
receipt of properly prepared and documented requests for
payment.
H. The Contractor will submit a final billing within forty-five
days Of the contract termination date specified in Article 1
above.
I. The Contractor shall make payments - promptly to all
subcontractors and suppliers. Failure to do so will be
grounds for termination of this Contract by the State. The
State shall not be responsible for the debts of the
Contractor.
ARTICLE 4. CONTRACT AMENDMENTS
Changes in the scope, objectives, cost or duration of the
Project authorized herein shall be enacted by written amendment
approved before additional work may be performed or additional
costs incurred. Any amendment so approved must be executed by
both parties within the Contract period as specified in Article
1.
ARTICLE 5. SUBCONTRACTS
Any subcontract for professional services rendered by individuals
or organizations not a part of the Contractor's organization
shall not be executed without prior authorization and approval of
the subcontract by the State. Subcontracts in excess of $25,000
shall contain all required provisions of this Contract. No
subcontract will relieve the Contractor of its responsibility
under this Contract.
ARTICLE 6. RECORDS AND AUDITS
A. The Contractor agrees to maintain financial records,
supporting documents, statistical records and all other
records pertinent to this Contract.
B. The Executive Director of the Texas Department of
Transportation, the Texas State Auditor or,any of their duly
authorized representatives shall have access to the records
described in Paragraph A above at all reasonable times during the
contract period and for the period set forth in Paragraph t below
for the purpose of making audits, examinations, excerpts and
transcripts.
C. Financial records, supporting documents, statistical records
and all other records pertinent to the Contract shall be
retained for a period of three years from final payment,
with the following qualifications:
(1) If any litigation, claim or audit is started before
the expiration of the three-year period, the records
shall be retained until all litigations, claims or
audit findings involving the records have been
resolved.
(2) Records for nonexpendable property acquired in whole or
in part with State funds shall be retained for three
years after its final disposition.
(3) When records are transferred to or maintained by the
State sponsoring agency, the three-year retention
requirement is not applicable to the Contractor.
D.. The Contractor further agrees to include these provisions in
each negotiated subcontract.
E. Contractor audit procedures shall meet or exceed the single
audit report requirements outlined in Office of Management
and Budget (OMB) publications as follows:
State or Local Governments OMB Circular A-128
Institutions of Higher OMB Circular A-133
Education and Other
Nonprofit Organizations
ARTICLE 7. FINANCIAL MANAGEMENT SYSTEMS
The Contractor's financial management system shall meet or exceed
the requirements of the "Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Governments"
(49 CFR 18). Those requirements include, but are not limited to:
A. Accurate, current and complete disclosure of the financial
results of each grant program in accordance with State
reporting requirements.
B. Records which identify adequately the source and application
of funds for grant -supported activities. These records
shall contain information pertaining to grant awards and
authorization, obligations, commitments, assets,
liabilities, outlays and income.
C. Effective control over and accountability for all funds
property and other assets. The Contractor shall adequately
5
safeguard all such assets and shall assure that they are
used solely for authorized purposes.
D. Comparison of actual with budgeted amounts for each contract
and relation of financial information to performance of
productivity data, including the production of unit cost
information, whenever appropriate and required by the State.
E. Procedures for determining the eligibility for reimbursement
and proper allocation of costs.
F. Accounting records which are supported by source
documentation.
G. A systematic method to assure timely and appropriate
resolution of audit finding and recommendations.
ARTICLE 8. PROCUREMENT STANDARDS
Contractor procurement standards shall meet or exceed the
requirements of the "Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Governments"
(49 CFR Part 18), including insurance and bonding requirements.
The Contractor shall have written selection procedures which meet
the minimum requirements of that document. The Contractor agrees
to comply with applicable Buy America requirements set forth,in
Section 401 of the Surface Transportation Assistance Act of 1978
(P.L. 95-599) and the Urban Mass Transportation Administration's
Buy America regulations at 49 CFR 660. The Contractor agrees to
comply with the cargo preference requirements set forth in 46 USC
1241 and Maritime Administration regulations set forth in 46 CFR
381.
The State must concur in the award of all purchase orders for
nonexpendable personal property as defined in 49 CFR Part 18.
The Contractor will meet all obligations incurred in its
subcontracts with its equipment suppliers, to specifically
include the prompt payment of monies due the supplier upon
delivery of acceptable equipment. Should payment be delayed for
any reason, the Contractor agrees not to operate any equipment
that has been delivered without the express permission of the
equipment vendor and to lend it the same protection it would its
own equipment.
ARTICLE 9. PROPERTY MANAGEMENT
The Contractor agrees to comply with the property management
standards specified in the "Uniform Administrative Requirements
for Grants and Cooperative Agreements to State and Local
Governments" (49 CFR Part 18), in its control, use and
disposition of property or equipment governed by those standards.
Further, the Contractor shall comply with the property management
standards adopted by the State in the Texas Administrative Code,
Title 43, Chapter 31. In the event that any project facility and
equipment are not used in the proper manner or are withdrawn from
public transportation services, the Contractor shall immediately
notify the State. The State reserves the right to direct the
sale or transfer of property acquired under this Contract upon
determination by the State that said property has not been fully
and/or properly utilized.
The Contractor shall maintain at least the minimum insurance on
all vehicles and other nonexpendable personal property as _
in writing by the State, in the event of loss or damage to
project property, whether by casualty or fire, the fair market
value will be the value of the property immediately before the
casualty or fire. Unless otherwise approved by the State, in the
event of loss due to casualty or fire, straight line depreciation
of the asset, based on the industry standard for a useful life,
shall be considered fair market value.
The Contractor shall not execute any lease, pledge, mortgage,
lien or other contract touching or affecting the State interest
in any project facilities or equipment; nor shall the Contractor,
by any act or omission of any kind, adversely affect the State
interest or impair its continuing control over the use of project
facilities or equipment.
The Contractor shall notify the State immediately of theft,
wreck, vandalism or other destruction of project -related
facilities or equipment.
ARTICLE 10. LABOR PROTECTION PROVISIONS
The Contractor agrees to undertake, carry out and complete the
Project under the terms and conditions determined by the
Secretary of the United States Department of Labor to be fair and
� 50
5 LY1
(. e:�
equitable, to protect the interests of employees affected by the
Project and meeting the requirements of Section 13(c) of the
Urban Mass Transportation Act of 1964, as amended.
ARTICLE 11. CHARTER AND SCHOOL BUS OPERATIONS
A. The Contractor, or any subcontractor acting on its behalf,
shall not engage in charter bus operations outside the
Project area within which it provides regularly scheduled
public transportation service, except as provided under
Section 3(f) of the Urban Mass Transportation Act of 1964,
as amended, 49 USC 1602(f), and regulations pertaining to
Charter Bus Operations, set forth in 49 CFR Part 604 and any
amendments that may be issued. Any subcontract entered into
under these regulations is incorporated into this Contract
by reference.
B. The Contractor, or any subcontractor acting on its behalf,
shall not engage in school bus operations, exclusively for
the transportation of students or school personnel, in
competition with private school bus operators, except as
provided under Section 3(g) of the Urban Mass Transportation
Act of 1964, as amended, 49 USC 1602(g) and regulations
pertaining to School Bus Operations, set forth at 49 CFR
Part 605 and any amendments thereto that may be issued. Any
subcontract entered into under these regulations is
incorporated into this Contract by reference.
ARTICLE 12. MONITORING AND REPORTING
A. The Contractor shall submit quarterly performance reports
that provide as a minimum the following:
(1) A comparison of actual accomplishments to the goals
established for the period.
(2) Reasons why established goals were not met.
(3) Other pertinent information including, when
appropriate, analysis and explanation of cost overruns
or high unit costs.
B. The Contractor shall promptly advise the State in writing of
events which have a significant impact upon the Contract,
including:
(1) Problems, delays or adverse conditions which will
materially affect the ability to attain program
objectives, prevent the meeting of time schedules and
goals, or preclude the attainment of project work units
by established time periods. This disclosure shall be
accompanied by a statement of the action taken, or
contemplated, and any State assistance needed to
resolve the situation.
(2) Favorable developments or events which enable meeting
time schedules and goals sooner than anticipated or
producing more work units than originally projected.
ARTICLE 13. DISPUTES
A. The Contractor shall be responsible for the settlement of
all contractual and administrative issues arising out of
procurements entered in support of contract work.
B. The State shall act as referee in all disputes regarding
non -procurement issues, and the State's decision shall be
final and binding.
ARTICLE 14. REMEDIES
Violation or breach of contract terms by the Contractor shall be
grounds for termination of the Contract and any increased cost
arising from Contractor's default, breach of contract or
violation of terms shall be paid by the Contractor.
This agreement shall not be considered as specifying the
exclusive remedy for any default, but all remedies existing at
law and in equity may be availed of by either party and shall be
cumulative.
ARTICLE 15. TERMINATION
A. The State may terminate this Contract at any time before the
date of completion whenever it is determined that the
Contractor has failed to comply with the conditions of the
Contract. The State shall give written notice to the
Contractor at least seven days prior to the effective date
of termination and specify the effective date of termination
and the reason for the termination.
B. If both parties to this Contract agree that the
continuation of the Contract would not produce beneficial
results commensurate with the further expenditure of funds,
the parties shall agree upon the termination conditions,
including the effective date. In the event that both
parties agree that resumption of the Contract is warranted,
a new contract must be developed and executed by both
parties.
C. Upon termination of this Contract, whether for cause or at
the convenience of the parties hereto, the State shall
retain unlimited and royalty free usage rights of all
finished or unfinished documents, data surveys, reports,
maps, drawings, models, photographs, etc., prepared by the
Contractor.
D. The State shall compensate the Contractor for those eligible
expenses incurred during the contract period which are
directly attributable to the completed portion of the work
covered by this Contract, provided that the work has been
completed in a manner satisfactory and acceptable to the
State. The Contractor shall not incur new obligations for
the terminated portion after the effective date of
termination.
E. Except with respect to defaults of subcontractors, the
Contractor shall be in default by reason of any failure in
performance of this Contract in accordance with its terms,
including any failure by the Contractor to progress in the
performance of the work. Failure on the part of the
Contractor to fulfill its obligations as set forth in this
Contract will be waived by the State for causes due to Acts
of God or force majeure.
ARTICLE 16. GENERAL PROVISIONS
A. CIVIL RIGHTS
During the performance of this Contract, the Contractor, for
itself, its assignees and successors in interest agrees as
follows:
(1) Compliance with Regulations: The Contractor shall
comply with the regulations relative to
non-discrimination in federally assisted programs of
the Department of Transportation (hereinafter "DOT")
Title 49, Code of Federal Regulations, Part 21 and 23
CFR 710.405(b), as they may be amended from time to
10
time (hereinafter, referred to as the Regulations),
which are herein incorporated by reference and made a
part of this Contract.
(2) Nondiscrimination: The Contractor, with regard to the
work performed by it during the Contract, shall not
discriminate on the grounds of race, color, sex or
national origin in the selection and retention of
subcontractors, including procurements of materials and
leases of equipment. The Contractor shall not
participate either directly or indirectly in the
discrimination prohibited by Section 21.5 of the
Regulations, including employment practices when the
contract covers a program set forth in Appendix B of
the Regulations.
(3) Solicitation for Subcontracts. Including Procurements
of Materials and Equipment: In all solicitations
either by competitive bidding or negotiation made by
the Contractor for work to be performed under a
subcontract, including procurements of materials or
leases of equipment, each potential subcontractor or
supplier shall be notified by the Contractor of the
Contractor's obligations under this Contract and the
Regulations relative to nondiscrimination on the
grounds of race, color, sex or national origin.
(4) Information and Reports: The Contractor shall provide
all information and reports required by the Regulations
or directives issued pursuant thereto, and shall permit
access to its books, records, accounts, other sources
of information and its facilities as may be determined
by the State or the Urban Mass Transportation
Administration (UMTA) to be pertinent to ascertain
compliance with such Regulations, orders and
instructions. where any information required of a
Contractor is in the exclusive pdssession of another
who fails or refuses to furnish this information, the
Contractor shall so certify to the State or the Urban
Mass Transportation Administration, as appropriate, and
shall set forth what efforts it has made to obtain the
information.
(5) Sanctions for Noncompliance: In the event of the
Contractor's noncompliance with the nondiscrimination
provisions of this Contract, the State shall impose
11
such contract sanctions as it or the Urban Mass
Transportation Administration may determine to be
appropriate, including, but not limited to:
(a) Withholding of payments to the Contractor under
the Contract until the Contractor complies, and/or
(b) Cancellation, termination or suspension of the
Contract, in whole or in part.
(6) Incorporation of Provisions: The Contractor shall
include the provisions of paragraphs (1) through (6) in
every subcontract, including procurements of materials
and leases of equipment, unless exempt by the
regulations or directives issued pursuant thereto. The
Contractor shall take such action with respect to any
subcontract or procurement as the State or the Urban
Mass Transportation Administration may direct as a
means of enforcing such provisions including sanctions
for noncompliance: Provided, however, that, in the
event a contractor becomes involved in, or is
threatened with, litigation with a subcontractor or
supplier as a result of such direction, the Contractor
may request the State to enter into such litigation to
protect the interests of the State, and, in addition,
the Contractor may request the United States to enter
into such litigation to protect the interests of the
United States.
B. NONDISCRIMINATION ON THE BASIS OF HANDICAP
The Contractor agrees that no otherwise qualified
handicapped person shall, solely by reason of his handicap,
be excluded from participation in, be denied the benefits
of or otherwise be subject to discrimination under the
project. The Contractor shall insure that all fixed
facility construction or alteration and all new equipment
included in the project comply with applicable regulations
regarding Nondiscrimination on the Basis of Handicap in
Programs and Activities Receiving or Benefitting from
Federal Financial Assistance, set forth in 49 CFR Part 27,
and any amendments thereto, and the Americans with
Disabilities Act.
C. DISADVANTAGED BUSINESS ENTERPRISE PROGRAM REQUIREMENTS
It is the policy of the Department of Transportation and the
State that Disadvantaged Business Enterprises as defined in
the Intermodal Surface Transportation Efficiency Act of
1991, Pub. L. No. 102-240, Sec. 1003, 105 Stat. 1914,
1918-1922 (1922), shall have the maximum opportunity to
FFa
participate in the performance of contracts ad subcontracts
financed in whole or in part with Federal funds.
Consequently, the Disadvantaged Business Enterprise
requirements of Pub. L. No. 102-240, Sec. 1003 apply to this
Contract as follows:
The Contractor agrees to insure that Disadvantaged Business
Enterprises (DBE) as defined in Pub. L. No. 102-240, Sec.
1003 have the maximum opportunity to participate in the
performance of contracts and subcontracts financed in whole
or in part with Federal or State funds. In this regard, the
Contractor shall take all necessary and reasonable steps to
meet the Disadvantaged Business Enterprise goal for this
contract.
The Contractor shall not discriminate on the basis of race,
color, national origin or sex in the award and performance
of contracts funded in whole or in part with Federal or
State funds.
These requirements shall be physically included in any
subcontract.
The percentage goal for Disadvantaged Business Enterprise
participation in the activities to be performed under this
contract is a minimum lot of the contract dollars available
for contracting opportunities as defined in Pub. L. o.
102-240, Sec. 1003. The contractor shall submit to the
State reports on DBE compliance efforts and documentation of
good faith efforts to meet the DBE goal. This information
shall be provided to the State on the format(s) and at time
intervals prescribed by the State.
Failure to carry out the requirements set forth above shall
constitute a breach of contract and, after the notification
of the State, may result in termination of the contract by
the State or other such remedy, which -may include reductions
in future grant awards, as the State deems appropriate.
D. EQUAL EMPLOYMENT OPPORTUNITY
The Contractor agrees to comply with Executive Order 11246
titled "Equal Employment Opportunity" as amended by
Executive Order 11375 and as supplemented in Department of
Labor Regulations (41 CFR, Part 60).
E. AFFIRMATIVE ACTION
The Contractor warrants that affirmative action programs as
required by the rules and regulations of the Secretary of
Labor (41 CFR 60-1 and 60-2) have been development and are
on file.
13
F. SPECIAL PROVISIONS FOR CONSTRUCTION OR REPAIR CONTRACTS
(1) Contract Work Hours and Safety Standards Act
The Contractor agrees to comply with Sections 103 and
107 of the Contract Work Hours and Safety Standards Act
(40 USC, Part 327-330) as supplemented by Department of
Labor Regulations (29 CFR, Part 5).
(2) Copeland "Anti -Kickback" Act
The Contractor agrees to comply with the Copeland
"Anti -Kickback" Act (18 USC 874) as supplemented in
Department of Labor regulations (29 CFR, Part 3).
(3) Davis -Bacon Act
The Contractor agrees to comply with the provisions of
the Davis -Bacon Act (40 USC 176a to 9-7) as
supplemented by Department of Labor regulations (29
CFR, Part 5).
(4) Relocation and Land Acquisition
The terms of the Department of Transportation
regulations "Uniform Relocation and Real Property
Acquisition for Federal and Federally Assisted
Programs" (49 CFR Part 25) are applicable to this
Contract.
(5) Insurance and Bonding
The Contractor shall comply with insurance and bonding
requirements as established in 49 CFR Part 18.
(6) Signs
The Contractor shall cause to be erected at the site of
construction, and maintained during construction, signs
satisfactory to the State and the United States
Department of Transportation identifying the project
and indicating that the Government is participating in
the development of the project.
G. ENVIRONMENTAL PROTECTION AND ENERGY EFFICIENCY
The Contractor agrees to comply with all applicable
standards, orders or requirements issued under Section 306
of the Clean Air Act (42 USC 1857(h]; Section 508 of the
Clean Water Act (33 USC 1368); Executive Order 11738 and
Environmental Protection Agency Regulations (40 CFR, Part
15). The Contractor further agrees to report violations to
the State.
14
W
J
K
The Contractor agrees to recognize standards and policies
relating to energy efficiency which are contained in the
State energy conservation plan issued in compliance with the
Energy Policy and Conservation Act (P.L. 94-163).
CONTROL OF DRUG USE
The Contractor agrees to comply with the terms of the
Omnibus Anti -Drug Abuse Act of 1988 (P.L. 100-890, Title V,
Subtitle D).
SUSPENSION AND DEBARMENT
The terms of the Department of Transportation regulation,
"Suspension and Debarment of Participants in DOT Financial
Assistance Programs" set forth at 49 CPR Part 29, are
applicable to this Contract and the Contractor must complete
the Contractor Certification which is included as Attachment
B. Further, any subcontractor employed by the Contractor is
also bound by the terms of 49 CFR Part 29 and must complete
a Contractor Certification (Lower Tier) form.
RESTRICTIONS ON LOBBYING
Pursuant to Section 319 of Public Law 101-121, which
generally prohibits recipients of Federal funds from using
those monies for lobbying purposes, the Contractor shall
comply with the attached Special Provision "New Restrictions
on Lobbying", which is included as Attachment C.
PROHIBITED ACTIVITIES
The Contractor or any subcontractor shall not use Federal or
State assistance funds for publicity or propaganda purposes
designed to support or defeat legislation pending before
Congress or the Texas Legislature.
No member of or delegate to the Congress of the United
States shall be admitted to any share or part of this
Contract or to any benefit arising therefrom.
No member, officer or employee of the Contract during this
tenure or one year thereafter shall have any interest,
direct or indirect, in this Contract or the proceeds
thereof.
15
Texas Transportation Commission policy mandates that
employees of the Department shall not accept any benefits,
gifts or favors from any person doing business or who
reasonably speaking may do business with the State under
this Contract. The only exceptions allowed are ordinary
business lunches and items that have received the advanced
written approval of the State Executive Director for the
Texas Department of Transportation. Any persons doing
business with or who may reasonably speaking do business
with the State under this Contract may not make any offer of
benefits, gifts or favors to Departmental employees, except
as mentioned hereabove. Failure on the part of the
Contractor to adhere to this policy may result in the
termination of this Contract.
L. ASSURANCES
The Contractor will comply with Texas Civil Statutes,
Article 5996a, by insuring that no officer, employee or
member of the Contractor's governing board or of the
Contractor's subcontractor shall vote or confirm the
employment of any person related within the second degree by
affinity or third degree by consanguinity to any member of
the governing body or to any other officer or employee
authorized to employ or supervise such person. This
prohibition shall not prohibit the employment of a person
who shall have been continuously employed for a period of
two years prior to the election or appointment of the
officer, employee, governing body member related to such
person in the prohibited degree.
The Contractor will insure that all information collected,
assembled or maintained by the applicant relative to this
project shall be available to the public during normal
business hours in compliance with Texas Civil Statutes,
Article 6252-17a, unless otherwise expressly provided by
law.
The Contractor will comply with Texas Civil Statutes,
Article 6252-17, which requires all regular, special or
called meetings of governmental bodies to be open to the
public, except as otherwise provided by law or specifically
permitted in the Texas Constitution.
M. PATENT RIGHTS
If any invention, improvement or discovery of the Contractor
or any of its subcontractors is conceived or first actually
16
reduced to practice in the course of or under this Project,
which invention, improvement or discovery may be patentable
under the Patent Laws of the United States of America or any
foreign country; and if said invention, improvement or
discovery has not already become the property of the State
under Article 15.0 above; the Contractor shall immediately
notify the State and provide a detailed report. The rights
and responsibilities of the Contractor, subcontractors and
the United States Government with respect to such invention
will be determined in accordance with applicable Federal
laws, regulations, policies and any waivers thereof.
Further, the Contractor shall comply with the provisions of
41 CFR, Part 1-9.
N. COPYRIGHTS
The State and the United States Department of Transportation
shall have the royalty -free, non-exclusive and irrevocable
right to reproduce, publish or otherwise use, and to
authorize others to use, the work for government purposes.
0. INDEMNIFICATION
To the extent permitted by law, the Contractor shall
indemnify and save harmless the State from all claims and
liability due to activities of itself, its agents or
employees, performed under this agreement and which result
from an error, omission or negligent act of the Contractor
or of any person employed by the Contractor. The Contractor
shall also save harmless the State from any and all
expenses, including attorney fees which might be incurred by
the State in litigation or otherwise resisting said claim or
liabilities which might be imposed on the State as a
result of activities by the Contractor, its agents, or
employees. V L _L. shall
l also
ly where alaims,
P. SUCCESSORS AND ASSIGNS
The Contractor binds itself, its successors, assigns,
executors and administrators in respect to all covenants of
this agreement. The Contractor shall not sign, sublet or
transfer its interest in this agreement without the written
consent of the State.
17
Q. CONTRACTOR ACKNOWLEDGEMENT
The Contractor acknowledges that it is not an agent, servant
or employee of the State and is responsible for its own act
and deeds and for those of its agents or employees during
the performance of the contract work.
R. LEGAL CONSTRUCTION
In case any one or more of the provisions contained in this
agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other
provision thereof and this agreement shall be construed as
if such invalid, illegal or unenforceable provision had
never been contained herein.
S. PRIOR AGREEMENTS
This agreement constitutes the sole and only agreement of
the parties hereto and supersedes any prior understandings
or written or oral agreements between the parties respecting
the within subject matter.
18
IN TESTIMONY WHEREOF, the parties hereto have caused these
presents to be executed.
STATE OF TEXAS
Certified as being executed for
the purpose and effect of
activating and/or carrying out
the orders, established policies,
or work programs heretofore
approved and authorized by the
Texas Transportation
Commission under the authority
of Minute Order 101219.
APPROVED:
CONTRACTOR
By:
Title:�4L4 vv,rs ows r
Date: f q�
By:
Director of Public Transportation
Date:
FOR EXECUTION:
District Engineer, District 18
19
08/12/92
CONTRACTOR:
CITY OF DENTON
STATE PROJECT NO.:T%93.90-0418
CONTRACT NUMBER:
513XXF6014
FTA NUMBER:
UKNONN
LINE ITEM 0
DESCRIPTION
TX-90
11. OPERATING
50/25/25
1 OPERATING
CONTRACT BUDGET
TOTAL FEDERAL STATE STATE
CSP
ATTACHMENT A
LOCAL
441,"0 220,720 0 110,360 110,360
........... ........... ........... .........- ....--...--
441,440 220,720 50% 0 0% 110,360 25% 110,360 25%
2 CAPITAL 80/13/7
CAPITAL 120,430 96,344 0 15,656 8,430
........... ........... ........... ........... ...........
120,430 96,344 80% 0 0% 15,656 13% 8,430 7Y.
3 PLANNING 80/13/7
PLANNING 96,068 76,854 0 12,489 6,725
........... ........... ........... ........... ......-----
96,068 76,854 90% 0 0% 12,489 13% 6,725 7%
........... ........... ........... ........... ...........
TOTAL 657,938 393,918 0 138,505 125,515
Debarment Certification
(Negotiated Contracts)
(1) The CONTRACTOR certifies to the best of its knowledge and belief, that it and
its principals:
(a) Are not presently debarred, suspended, proposed for debarment, declared
ineligible or voluntarily excluded from covered transactions by any federal
department or agency;
(b) Have not within a three-year period preceding this proposal been convicted
of or had a civil judgment rendered against them for commission of fraud or a
criminal offense in connection with obtaining, attempting to obtain, or perform-
ing a public* transaction or contract under a public transaction; violation of
federal or state antitrust statutes or commission of embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false statements, or
receiving stolen property;
(c) Are not presently indicated for or otherwise criminally or civilly charged by
a governmental entity* with commission of any of the offenses enumerated in
paragraph (1)(b) of this certification; and
(d) Have not within a three-year period preceding this application/proposal had
one or more public transactions* terminated for cause or default.
(2) Where the CONTRACTOR is unable to certify to any of the statements in
this certification, such CONTRACTOR shall attach an explanation to this
certification.
*federal, state or local
G-t
ipature of Cenifying official
Form 1734 A
4.89
Lower Tier Participant Debarment Certification
(Negotiated Contracts)
(_��� V • + 4o.,r o-e ( � , being duly sworn
anon name of certifying airicuu
or under penalty of perjury under the laws of the United States, certifies that
neither C •.I''h cif' D, vetoes. TY nor its
unsart name of lower tia psrunpuHl
principals are presently:
• debarred, suspended, proposed for debarment,
• declared ineligible,
• or voluntarily excluded from participation in this transaction
by any Federal department or agency
Where the above identified lower tier participant is unable to certify to any of the
above statements in this certification, such prospective participant shall indicate
below to whom the exception applies, the initiating agency, and dates of action.
Exceptions will not necessarily result in denial of award, but will be considered in
determining contractor responsibility. Providing false information may result in
criminal prosecution or administrative sanctions.
EXCEPTIONS:
ft
Signature
Title
See Reverse for Information
16 •. 4 M4
Certification Information
This certification is to be used by contractors pursuant to 49 CFR 29 when any of the
following occur.
• any transaction between the contractor and a person (other than a
Procurement contract for goods and services), regardless of type, under
a primary covered transaction
any Procurement contract for goods or services when the estimated cost is
$25,000 or more
• any procurement contract for goods or services between the contractor
and a person, regardless of the amount, under which the person will have
a critical influence on or substantive control over that covered trans-
action. Such persons include principal investigators and providers of
federally -required audit services.
A procurement transaction is the process of acquiring goods and services.
A nonprocurement transaction is the granting of financial assistance to entities to
assist the grantor in meeting objectives that are mutually beneficial to the grantee
and grantor.
A COPY OF THIS CERTIFICATION IS TO BE FURNISHED TO
AUTHORIZED REPRESENTATIVES OF THE STATE OR THE U.S.
DEPARTMENT OF TRANSPORTATION UPON REQUEST.
Federal Register / Vol. 54. No. 243 / Wednesday. December _0, 19d9 / Notices 32323
DISCLOSURE Of LOBBYING ACTIVITIES pA� a UM■
CONTINUATION SHEET wwa
�9 ^t lawn- Page _ el
srormS to td squeeift"
Sarre rw. • u"
52326
Federal
? Vol. 54. No. 243 /
Appendix C to Part _ - Contract Clause
December 20. 1989 / Nolicra
NEW RESTRICTIONS ON LOBBYING
(a) Definitions. As used in this clause,
"Agency", as defined in 5 U.S.C. 552(f), includes Federal
executive departments and agencies as wall as independent
regulatory commissions and Government corporations, as defined in
31 U.S.C. 9101(1).
"Covered Federal action" means
actions: any of the following Federal
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any Cooperative agreement; and,
(5) The extension, modification continuation, renewal, amendment, or
of any Federal contract, grant, loan, or
cooperative agreement.
Covered Federal action does not include receiving from an agency
a Commitment providing for the United States to insure or
guarantee a loan.
"Indian tribe" and "tribal organisation" have the meaning
provided in section 4 of the Indian Self -Determination and
Education Assistance Act (25 U.S.C. 4508). Alaskan Natives are
included under the definitions of Indian tribes in that Act.
"Influencing or attempting to infl
the intent to influence, uence• means making, with
before any communication to or appearance
an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with any Covered Federal action.
cal
and, Of goverment If chartered, established, ortotherwise recogin a State
State for the performance of a governmental duty, includingg a
local Public authority, a special distsiCt, an intrastate
representative orq nisation council f and any otharoindtrum,ntalltygotua
local government.
"officer or employee of an agency" includes the following
Individuals who are employed by an agency;
GovernmentAn Individual
titlewho
5,s 0 S. Cod.ted including s the
under a temporary appointment; 9 Position
(2) A member of the uniformed services as defined in
section 101(3), title 37, U.S. Code;
(3) A special Government employee as defined in section
2020 title 280 U.S. Code; and,
21
Federal Register / %ol. 64. No. Z4J / weenesady, Uece:nuer 2U. 19d9 / Notices 62JY7
(4) An individual who is a member of a Federal advisory
committee, as defined by the Federal Advisory Committee Act,
title S, U.S. Code appendix 2.
"Person" means an individual, corporation, company,
association, authority, firm, partnership, society, State, and
local i government, regardless of whether such entity is operated
for profit or not for profit. This term.excludes an Indian
tribe; tribal organization, or any other Indian organization with
respect to expenditures specifically permitted by other Federal
law.
"Reasonable compensation" means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or
employee for work that is not furnished to, not funded by, or not
furnished in cooperation with the Federal Government.
"Reasonable payment" means, with respect to professibnal and
other) technical services, a payment in an amount that is
consistent with the amount normally paid for such services in the
private sector. ,
"Recipient" includes all contractors and subcontractors at
any tier in connection with a Federal contract. The term
excludes an Indian tribe, tribal organisation, or any other
Indian organization with respect to expenditures specifically
permitted by other Federal law.
lRegularly employed" means, with respect to ark officer or
employee of a person requesting or receiving a Federal contract,
an officer or employee who is employed by such person for at
least'130 working days within one year immediately preceding the
date of the submission that initiates agency consideration of
such person for receipt of such contract. An officer or employee
who is employed by such person for less than 130 working days
within one year immediately preceding the date of the submission
that initiates agency consideration of such person shall be
considered to be regularly employed as soon as he or she is
employed by such person for 130 working days.
"State" means a state .of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or
possession of the United States, an agency or instrumentality of
a State, and a multi -State, regional, or interstate entity having
governmental duties and powers.
(b) prohibition.
(I1) Section 1352 of title 31, U.S. Code provides in part
that no appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative agreement to pay
22
Federal Register / Vol. U, No. 243 /
December 2o, toss / Notice#
any person for influencing or attempting to influence an officer
or employee of any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any of the following covered Federal actions:
the awarding of any Federal contract, the making of any Federal
grant, the making of any Federal loan, the entering into of any
cooperative agreament, and the extension, continuation, renewal,
amendment, or modification of any Federal contract, grant, loan,
or cooperative agreement.
(2) The prohibition does not apply as follows:
(i) Agency and legislative liaison by Own Employees.
(A) The prohibition on the use of appropriated
funds, in paragrap*yl) of this section, does not apply in the
case of a payment or reasonable compensation made to an officer
or employee of a person requesting or receiving a Federal
contract if the payment is for agency and legislative' liaison
activities not directly related to a covered Federal action.
(e) For WW O
section, providing any information specifically fparagraph a ue o! this
agency or Congress is allowable at an. requested by an
(b)(s)(:)
(C) For purposes of paragra)phl, (A)- of this
section, the following agency and legislative l a son activities
are allowable at any time only where they are not related to,a
Specific solicitation. for any covered Federal action:
1 ($) Discussing with an agency (including
individual demonstrations) the qualities and characteristics of
the person's products or services, conditions or terms of sale,
and service capabilit4eat and,
activities regarding ithe T application schnical d or discussions
sadaptation d of other
person's products or services for an agency's use.
(b)(%KG)
(D) For purposes of paragra h (A) of this
aresectallow allowable only whethe re agency
.at prior toi I eison solicitationiof
any covered Federal Action:
specifically se 3 ( providing any information not
informed decision �eatdt Initiation necessary as af�+agency Federal cmake an
tiow
i) Technical discussions regarding the
preparation of an Unsolicited proposal prior to its official
submissiont and, -�
seeking awards from (hi)
agency
presentations by persons
Small Business fActprom as amendepursuant to the provisions of the
subsequent amendments. by
Public Lev 95 S07 and other
23
Federal Register I VoL'S4. No. 243 J Wednesday. December 20, 1989 / Notices 5329
�x1> (E) Only those activities expressly authorized by��
paragrapl'a(i) of this section are allowable under paragraph (i) .
(ii) Professional and technical services by Own
Employees.
(A) The prohibition on the use of appropriated
funds, in paragraph&i) of this section, does not apply in the
case of a payment or reasonable compensation made to an officer
or employee of a person requesting or receiving a Federal
contract or an extension, continuation, renewal, amendment, or
modification of a Federal contract if payment is for professional
or technical -services rendered directly in the preparation,
submission, or negotiation of any bid, proposal, or application
for that Federal contract or for meeting requirements imposed by
or pursuant to law as a condition for receiving that Federal
contract. Coo.)Y%/)
(8) For purposes of paragraphs (A) of this
section, "professional and technical services" shall be limited
to advice and analysis directly applying any professional or
technical discipline. For example, drafting of a legal document
accompanying a bid or proposal by a lawyer is allowable.
similarly,. technical advice provided by an engineer on the
performance or operational capability of a piece of equipment
rendered directly in the negotiation of a contract is allowable.
However, communications with the intent to influence made by a
professional (such as a licensed lawyer) or a technical person
(such as a licensed accountant) are not allowable under this
section unless they provide advice and analysis directly applying
their professional or technical expertise and unless the advice
or analysis is rendered directly and solely in the preparation,
submission or negotiation of a covered Federal action. Thus, for
example, communications with the intent to influence made by a
lawyer that do not provide legal advice or analysis directly and
solely related to the legal aspects of his or her clientis
proposal, but generally advocate one proposal over another are
not allowable under this section because the lawyer is not
providing professional legal services. Similarly, communications
with the intent to influence'made by an engineer providing an
engineering analysis prior to the preparation or submission of a
bid !or proposal are not allowable under this section since the
engineer is providing technical services but not directly in the
preparation, submission or negotiation of a covered raderal
action.
(C) Requirements imposed by or pursuant to law as
a condition for receiving a covered Federal award include those
required by law or regulation, or reasonably expected to be
required by law or regulation, and any other requirements in the
actual award documents.
24
S2330 Federal RegWer / Vol. 54. No.
f Wednesday, December 20. 1909 / Notices
613% (D) Only those services expressly authorized by
paragraph A(ii) of this section are allowable under paragraph (b)(Z)
(ii).
(111) Reporting for Own Employees.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of
a person.
(iv) Professional and technical services by Other than
Own Employees.
(A) The prohibition on the use of appropriated
funds, in paragraphol) of this section, does not apply in the
case of any reasonable payment to a person, other than an officer
or employee of a person requesting or receiving a covered Federal
action, if the payment is for professional, or technical services
rendered directly in the preparation, submission, or negotiation
of any bid, proposal, or application for that Federal contract or
for meeting requirements imposed by or pursuant to law as a
condition for receiving that Federal contract.
[b)Ca)GY) -
section (S) For purposes of paragrapho (A) of this
eprofe4sional and technical servieese shall be limited
to advice and 'analysis directly applying any professional or
technical discipline. For exampla, drafting of a legal document
accompanying a bid or proposal by a lawyer is allowablr.
similarly, technical advice provided by an engineer: on the
performance or operational capability of a piece of equipment
rendered directly in the negotiation of a contract is allowable.
However, communications with the intent to influence made by a
professional (such as a licansed lawyer) or a technical person
(such as a licensed accountant) are not allowable under this
section unless they provide advice and analysis directly applying
their professional or technical expertise and unless the advice
or analysis is rendered directly and solely in the preparation,
submission or negotiation of a covered Federal action. Thus, for
example, communications with the intent to influence made by a
lawyer that do not provide legal advice or analysis directly and
solely related to the legal aspects of his or bar aliantrs
nproposal#
not d
allowable generally
unerlithis section becauadvocae one ussee the lawyer ies not
providing rofessional legal services. Similarly, communications
with the Intent to influence made by an engineer providing an
engineering analysis prior to the preparation or submission. of a
bid or proposal are not allowable under this section since the
engineer is providing technical services but not directly in the
preparation, submission or negotiation of a covered Federal
action.
23
C2332 Federal Resistor / Vol. 54,
/ Wednesday. December:0. 1989 /trances
(s) All disclosure forms, but ;not certifications, shall Le
forwarded from tier to kie,r;,ut+tilreceived by the person referred
to in paragrap> rkl) of This section. That person shall forward
all disclosure orms to the agency.
(d) I Agreement. In .accepting any contract resulting from this
solicitation, the person submitting the offer agrees not to make
any payment prohibited by this clause.
(e) (Penalties.
(1) Any person who makes an expenditure prohibited under
ofrnotalessbthan $10,000of this clause
and not more than$ 00,000 forcivil
eachnsuch
expenditure.
(2) Any person who fails to file or amend the disclosure
form to be'filed or amended if required by this clause, shall be
subject to a civil penalty of not less than $10,000 and not more
than $100,000 for each such failure.
(3) Contractors may rely without liability on the
representations made by their subcontractors in the certification
and disclosure form.
i
(f) Cost allowability. Nothing in this clause is to be
interpreted to make allowable or reasonable any costs which would
be unallowable or unreasonable in accordance with Part 31 of,the
Federal Acquisition Regulation. Conversely, costs made
specifically unallowable by the requirements in this clause will
not be made allowable under any of the provisions of Part 31 of
the Federal Acquisition Regulation.
!FR Doe a9.WU Filed 12-14-e,12A pm)
sum cm slror+t
I
(End of Clause)
27
�•���. uecemb�r 20. 1wri /notices
nts
a condition for Creceiving aecovered Ted Fed ederal aor ward uitfcludelthose
required bired y law ror reguor lation# and anor y othras 9ueiected to be the
actual award documents.
a person requesting Persons other than officers or employees of
questing or receiving a covered Federal action include
consultants and trade associations.
pare OX") (E) Only those services expressly authorised by
(iv) . p ° (iv) Of this section are allowable under ParagraphtbXt4)
(a) Disclosure.
(1) Each person who requests or receives from an agency'a
Federal contract shall file with that agency a certification, set
forth in , that the person has not made, and will not make,
any payment prohibited by paragraph (b) of this clause.
(l) Each parson who requests
Federal contract shah or receives from an agency a
Standard Form-LLL, file with that agency a disclosure form,
sDisClosua of Lobbying Activities,• it such
Person has made or has agreed to make any payment using
nonappropriated funds mod:
Federal action), which would be profits from any Covered
this clause if paid for with appropriated
under paragraph (b) of
ppropriated funds.
(3) Each person shall file a disclosure form at each calendar quarter in which there occurs any event that
the and of
requires disclosure or that materially affects the accuracy of
the information contained in an disclosure form previously filed
by such person under paragraphCX2) of this section. An event
that materially affects the accuracy of the information reported
includes:
amount (i) A cumulative increase of $25000o or more in the
to influence °a covered Feda al be actionaid Ozo�nflueneinq or attempting
influencing attempting to intluenearaon(s) orFedndi iaetiont
or,
In
Member(s) eralacction. geintluertice or iattompt loplOYflus) o oa
covered Federal action.
Any
referred to Inppare O requests or receives from a 'jSerson.
exceeding $100,OOO at any tier undeOf r static" l a s�t nt act
Federnext tier abov® aticn, &W a disclosure form, it required, to the
26
CERTIFICATION
of
Restrictions on Lobbying
I, ( V ,+knrce_l(.l I yMnWgt✓ hereby certify
(name and itl of grantee o ficidl) T
on behalf of �i i-" c9� (\V vr- -r3 , that:
(name of grantee)
(1) No Federal appropriated funds have been paid or will be
paid, by or on behalf of the undersigned, to any person for
influencing or attempting to influence an officer or employee of
any agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in connection
with the awarding of any Federal contract, the making of any
Federal grant, the making of any Federal loan, the entering into
of any cooperative agreement, and the extension, continuation.,
renewal, amendment, or modification of any Federal contract,
grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting
to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with this Federal contract,
grant, loan, or cooperative agreement, the undersigned.shall
complete and submit Standard Form-LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all
subawards at all tiers (including subcontracts, subgrants, and
contracts under grants, lohns, and cooperative agreements) and
that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon
which reliance is placed when this transaction was made or
entered into. Submission of this certification is a prerequisite
for making or entering into this transaction imposed by section
1352, title 31, U.S. Code. Any person who fails to file the
required certification shall be subject to a civil penalty of not
less than $10,000 and not more than $100,000 for each such
failure.
Executed this - day of �,_, 19 _7I�-.
By
(signature of authorized official)
VVIRI
(title Of aut..orized ficial)
DISCLOSURE OF LOBBYING ACTIVITIES^-e�«t
ad»«r
Comp4e Nut loan to disclose bbbymS activities pursuant M 71 U.S.C. US)
)See reverse err pubad, burden di"bsdee.i
1. Type d federal Aetlors:
1 Slates M Federal Argon;
3 sew Two
a a. contract
b. grant
❑ a.
Q a in awflYq
c. cooperative fereennent
b. initial ward
award
b. mamw loge
d. ban
C. post•awrd
For Mdww CAage Only,
e. ban Jura t"
Tor laner p
1. ban insurance
ate of eat report
a. Name and Address of taeportiq [o1Yr
t ta sepof ft talky in No. a b Adsomm , 6mt Nusse
O prwm O Subawrae
and Address of PWmw.
Tier — , d known:
C rettbnd DbMct d knower
conviradond DYtrict, if known:
k. ftdaral DepwnensASenty:
_
T. Federal /roarNr_ ode-
CFDA Number. d appheable:
{. Federal Action Number, dMown.
♦G AwardAmoessL dknowru
s
10. a. Name and Address of Lobbriq ln�h a Individuals pact Serwk (mcludedp address d
of mdmdual, last name, Mt name• M i, MNererN Npn
Ne. 1
f)asf name. Mel name, M?.
I t. Amount of Payment Icheck all that app/yl:
ti Type of rsyesMN (check all that apply):
f O actual O planned
O a. retainer
O Is. onetime lee
O C commNsiOn
12. form of Paymeel (check all that app/yl:
O a. Cash
O d. contigent ate
❑ b, in -kind. specify: nature
O e. Merrell
value
O f. other, specify:
ta. SriellDercrfpfike el feMcre rat/altskd M N M PaAarned deed DWI» Mfwvica bndodiq eMicab► erplayaalai
or MembMs) tpltatted, for ►aIesees fonYtred in takes 11:
1F. CombwNen SbeMlat 94U.A etaebet O yes O No
la. aaaerw� epwed eeaap al• ftn a &*dour in deer al USC
aes firs no 6mew r eseM reaedw a a aawr wwrri�
�' �r
ft"Wm
r roe aOed eery edema w ~der ae m. now ~ �
aener.n w udder a tyres ear nM aatren a eerw,raea a
prim ftw.
TUN
m u c k fill no -ft a as OR mma m e ti rOpw err
mri,aea a
Y maY b kook aereaw Aar maw re Y e
der dr Mnda Garb... r r to Men 0, nr Oren I er Ye ew
d * ae we m dew nw Immto ftA eaa Yew
Telephone leo.: Date..
Federal Use Ordp
aaorr r 1. w kseeat.r
tdwaae rem. • W
CERTIFICATION
of
Restrictions on Lobbying
(name a
on behalf of
hereby certify
that:
(1) No Federal appropriated funds have been paid or will be
paid, by or on behalf of the undersigned, to any person for
influencing or attempting to influence an officer or employee of
any agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in connection
with the awarding of any Federal contract, the making of any
Federal grant, the making of any Federal loan, the entering into
of any cooperative agreement, and the extension, continuation.,
renewal, amendment, or modification of any Federal contract,
grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting
to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with this Federal contract,
grant, loan, or cooperative agreement, the undersigned.shall
complete and submit Standard Form-LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all
subawards at all tiers (including subcontracts, subgrants, and
contracts under grants, loons, and cooperative agreements) and
that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of tact upon
which reliance is placed when this transaction was made or
entered into. Submission of this certification is a prerequisite
for making or entering into this transaction imposed by section
1352, title 31, U.S. Code. Any person who fails to file the
required certification shall be subject to a civil penalty of not
less than $10400 and not more than $100,00o for each such
failure.
Executed this - . day of ------ �—' 19 9a--
By
(signature of authorised official)
C i I/yYiv� l f
(title f ou rizeaofficiary
52326 Federal Regiater I Vol. 64. No. 243 / Wednesday, L)ecember 20. tvw I Notices
INSTRUCTIONS FOR COMPLE71ON OF SF•LLL, DISCLOSURE OF LOBBYING ACTIVITIES
This disclosure form shelf be completed la UK'iePutting entity, whether wbAwardee or prime federal recipient, at the
IMtisdon or receipt of a covered federal action, or a materi change to a previous filing pursuant to title 3! U.S.C.
section 1352. The "of a form Is required for each payment or agreement to make payment to any Iobbyind entity for
Influencing or anompsing to influence an officer oremployee of any agency, a Member of Congress, an officer or
ernpIoyce of Congress, or an of a Member of s In connection with a covered Federal action. Use the
SF-LIt-A, ContinulUon Shoat for additional Information if the space on the form is Inadequate. Complete all items that
apply for both the Inh al filing and material change report. Rater to the Implementing guidance published by the Office of
MmoSemal and Budget for additional information.
1. Identify the type of covered Federal action for which lobbying activity is ardor has been secured to influence the
outcome of a covered Federal action.
2. Identify the status of the covered Federal action.
3. Identify the &pp►cl aw classification of this report. If this Is a blkswup report caused by a material change to the
Information previously reported, enter the you and quarter In which the change occurred. Enter the date of the last
previously submined report by this reporting entity for this covered Federal action.
a. Enter this full now, address, city. $fate and alp code of the toporting entity. Include Congressional District, if
known. Check the appropriate classification of the repotting entity stun. &signates if it is, or expects to be. a prime
or,subaward recipient. Idendfy the tier of the subawardee, e.g., the first subawardee of the prime is the 1st tier.
Subawards include but are not limited to subcontracts, subgrants and contract awards under grants.
S. if the organization filing the report in Item a checks "Subawardee", then enter the full narre, address, rytl, state and
zip; code of the prime Federal recipient. Include Congressional District, If known.
6. Enter the name of the Federal &gang making the award or ban co mmifinent. Include at least one organizational
level below agency name, if known. For example, Department of Transportation, United States Coast Guard.
7. Enter the Federal program name or description for the covered Federal action (item 1). If known, enter the full
Catalog of Federal Domestic Assistance (CFDA) number for grants, cooperative agreements, loans, and loan
commitments.
S. Enter the most appropriate Federal identifying number available for the Federal action identified in hem 1 te.g.,
Request for Proposal (RFP) number, Imitation for Bid (IFB) number, grant announcement number, the contract,
grant, or loan,award number, the &pplicatiorvproposal control number assigned by the Federal agency). Include
prefixes, e.g., "RFP•000.11l
9. For a covered Federal action where thm has been an award or ban commitment by the Federal agency, enter the
Federal amount of the awardloan commitment for the prime entity identified in item a or S.
10. !/)Enter the full name, address, city, state and alp code of the lobbying entity engaged by the reporting entity
identified in Item a to influence the covered Federal action.
WAnter the full names of tiw indivldi l(s) performing services and Include full address if different from 10 (a).
Enter Last Name, First Now, and Middle Initial (MI).
11. Enter the amount of compensation paid or ressonebly expected to be.paid by the reporting entity (item e) to the
lobbying entity (hem 10). Indicate whether the payment has been made (actual) or will be made (planned). Check
all born that apply. If this Is a material change report, enter the cumulative amount of payment made or planned
to be made.
12. Check the &pproprtate box(eq. Chad all boxes that apply. ff payment Is made through an In -hind contribution,
specify the nature and value of dw in kind payment
13. Cheek dw appropriate box($). CMdt all boxes tlsM apply. if Whoa. specify nature.
14. Provide a SpadRe and detallad dersa m of dw services do the lobbyist has performed, or will be expected to
perform, and the deals) of any tetviu& nmde a . IneJt, - all prepu ory and related scevity. not luat time spent in
actual COMM with Federal oNkW& laartify the Faderal e1RciW) or of I contacted car the officar(l
amployee(A, or Member(&) of Congress Out: Will c)oaaeted,
1S. Check WWW or not a SF•LLL•A Centlmwtlon Sheetls) N Mti c*ed
16. The certifying official shallsign nd date tiw lona . point hiaArt norm. IRlo, and teMplwrw member.
Public nePorOrrg burden he dos colleetion of irilormaim is esorwN to eval b aanesnrs For response. Including slaw b reviewing
Insmrctiom, searching eaeag data sources. gatlsenng and mom m" she data ns dad, and canp4UF4 and reworwn{ tin colNctson of
Infomratson. Send comments inviting dw buidin intimate or arty DOW upct of Il is collection of inlormnron, irrchrding sugntiom
for ""Ing this burden. to doe olke of Manegemwm and iMsqlgell rriperrver► Reduction Protect (034ee044), waslwrgtat 1) C. 301143
DISCLOSURE OF LOBBYING ACTIVITIES v0aaawCome
Complete this lam to difdosr in 01M-0roa
($ee reverse Ia�blsR card irl d Njesswe. to St U.S.C. 1]S7
Pu Owden dlscbaweJ
1. TV" d Federal AAiar. L feats d Federal Actions 1 Upon TF►e:
A. contract a bidsoNai
b. pant appgutlon a mate
C. Coopafatwc agreement b. NtW award ❑ b. aMd e
d. loan c pust•award For hwffw Change O*
e. loan guarantee Tea quwwr
f. loan insurance date of Iasi eepat
a Name and Address of Reporting Iytp L M Rep«Uy FyyT in Ne. / is foDwnrdee, low Name
O Ikime O Subawardee and Addnia of pew"
Tier it known:
Comirrolwasid Dktrkt d wrowm 7AwW
DbUK Nknown, .
6. Federal DepammentAgencr. m NuaeMeMtiplions
, d applicable:
6. Federal Action Number, d known: d known:
to. a. Marne and A.last d e. Arse mg Mo l h, fadwiduale rM«nWn ferric« tsic Id mdrwdual, last name, Mu name. Mlr. MoseM kern No. IOaT ^gWdna d
(lost name. fist new, MII:
a n
It. Amount of hTmem (chcek all that apply):M TTpe of ►eyrlMnt fcheck an dun apply(:
f O actual O planned O a. retainer
0 b. one-time fee
12. Form of PaTment (check all Char epplyl; O a commission
O a. cash O d. contingent lee
O b in -kind. specify: nature O is. Waned
value O f. other,, specify:
ter. fries Description of fervlCIN ►Manned be pedestaled end Dateln of (mice. blockadingeMkMs► emepLOpNSL
« Membensf tamaned lar ►aymNw hrdltatN Inn maw tt:
1L Continuation fhMln SMAL-A a oil h Ids O Tea O No
teragswro awaawd aawM " ft. a re+rr sr r a Y as
aAwP loss caw ealraaa al Mem,e aaalw a awar aroararASM flg"VM
• M roam, alerts rraa w /aae err w as N1ra arena dr1
aaa w as w16 a wad caw rl.a eamya a awar pm,aaa w Print Now.
II Y 1 c Ills no rawrle rot or aealy w ea tolPin
rolYro. w ere ro aafrar b arw Mm,nalw "row area rem w TRle:
M as awala saralra Iluf w alallrl w e. m,e aasnll/ er r ti O.aI
I M ma N iwI am, Ian Iwaa0la we. am,a W Telephone N&: Dale:
Fedtrat use Only, Aroaanad 4 W at aa'ad.clm,.
tYMard from, . W