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1997-118 O IN CENO AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE THE FIRST AMENDMENT TO AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND SPAN, INC, RELATING TO PUBLIC TRANSPORTATION 1N THE CITY, AUTHORIZING THE EXPENDITURE OF FUNDS AS PROVIDED IN THE AGREEMENT, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the Mayor ts authorized to execute the First Amendment to the Agreement between the City of Denton and Span, Inc, relating to public transportation in the City, such agreement as amended is attached hereto and made a part of this ordinance for all purposes SECTION II That the City is hereby authorized to make expenditures as may be required under tbas agreement as amended SECTION III That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this ~ of ~ , 1997 JACI~LLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY T \WPDOCS\ORD\SpAN DOC 1't AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND SPAN. INC. The Agreement entered mto by and between the City of Denton, Texas, a Home Rule Mumclpal Corporation, (hereinafter referred to as Ctty) and SPAN. INC (herein after referred to as Agency) on July 18, 1995 ts hereby amended so that hereafter same shall read as follows, and WHEREAS, the City Manager has determmed that the Agency is the transportation provider for the C~ty and provides a needed servtce to ctttzens of the City and the C~ty Council has provided for funds tn ~ts budget for the purpose of paying for contractual servmes as well as prowthng for eligible Federal Transit Admunstrat~on funds, and WHEREAS, the Ctty has received grants from the Federal Transit Adm~mstrat~on and the Texas Department of Transportation to provide publtc transportation in the Denton urbamzed area and wmhes to contract wtth SPAN. INC. to prowde such services, NOW, THEREFORE, the parttes hereto mutually agree as follows I. SCOPE OF SERVICES The Agency shall tn a sattsfactory and proper manner perform the following Project undertake and complete the Project, and provtde for the use of the Project facilities or eqmpment, substan- tially as described ~n C~ty's Applmatlon for Federal funding, which ~s incorporated here~n by reference, filed with and approved by the U S Government, and m accordance w~th the terms and conditions of tlus Agreement, meluthng A Providing transportatton wttlun the mty lumts dunng the hours of 6 00 a m to 7 00 p m, Monday through Friday and Saturdays from 9 00 a m to 3 00 p m except on holidays observed,for New Year's Day, Martin Luther Kmg, Jr Day, Memorial Day, Independence Day, Thanksgiving Day, day after Thanksgiving Day, Christmas Eve, and Christmas Day B Charging a fee to each passenger with a thsabfl~ty One Dollar and Ftfty Cents ($1 50) for every one-way trip on the demand response system prowded to that passenger C Providing transportation servtces within the city lnnlts to the general public on four fixed routes, as outlined m Section I A hereof, for seventy-five ($ 75) for each one way trip, w~th a free transfer D Charging a fee to each person 60 years of age and older and all persons wtth thsaNhtxes ehglble under the "Americans wtth D~saNht~es Act" no more than half prtce fare on the pubhc fixed route system AAA032AD E Before amending ~ts fares, Agency shall send nouce to C~ty reforming ~t of the proposed amendment The C~ty shall consader whether at shall approve the amendment If the C~ty does not take actton to approve or dasapprove the proposed fare wath~n 60 days, a shall be deemed to have approved the proposed fare F Agency may contract wtth other persons or compames m accordance wtth the terms and conditions of thas agreement to provade the services specified herean during tunes when Agency does not operate Transportation services provded by such subcontractees shall be ~n accordance w~th the terms and condaUons of thas Agreement II. OBLIGATIONS OF AGENCY In consaderataon of the receapt of funds from the C~ty, Agency agrees to the following terms and condat~ons A It wall estabhsh a separate bank account for deposat of funds panl to the Agency by the City and the only expendatures from tlus account, until such tune as saxd funds are exhausted, shall be for those expenses hsted tn the scope of services as prowded for herean Agency shall not commingle funds receaved from other sources tn th~s account and shall not utilize these funds for any other purpose B It will estabhsh, operate, and maintain an account system for thas program that will allow for a tracing of funds and a rewew of the financaal status of the project and will permit authorized offimals for the City of Denton to rewew tts books at any tune C It will comply wath all federal statutes and regulaUons promulgated thereunder apphcable to the Agency D It wall comply wxth all pmv~s~ons of the current annual contract between the C~ty and State Department of Transportation, approved by the Caty of Denton on November 5, 1996 E It wall reduce to writing all of tts rules, regulations and pollcxes, such as drug testing, tratmng pwcedures, grievance pohmes, and comphance w~th the Americans with D~sabtht~es Act, and file a copy w~th the City Manager or authorized representanve along w~th any amendments, add~taons, or revasaons whenever adopted F It wall not enter into any contracts that would encumber the C~ty funds for a period that would extend beyond the term of th~s Agreement G At the dascreUon of the C~ty, the Agency may be reqmred to refund the balance of the specaal account to the Caty of Denton at the end of the Agency's fiscal year H It will promptly pay all bills when submitted unless there ts a dascrepancy tn a bill, any errors or dascrepanc~es m bills shall be promptly reported to the Execuuve D~rector of Finance or their anthonzed representatave for further dtrectaon AAA032AD I It will appomt a representanve who will be avadable to meet wl[h the Executive D~rector of F~nance and other C~ty officmls when requested J It will mdemmfy and hold harmless the C~ty from any and all clatrns and suxts arising out of the act~wnes of the Agency, ~ts employees, or contractors and save and hold the C~ty harmless from all lmbfllty, including costs, expenses and attorneys fees, for or on account of, any claims, audit exceptions, stats, or damages of any character whatsoever resulting ~n whole or m part from the performance or omission of any act of any employee, agent or representative of the Agency, whether or not such claim arises from the sole negligence of C~ty K It will submit to the C~ty cop~es of year-end audxted fmancml statements m accordance w~th the prows~ons hereof It shall also submit to the C~ty an annual report to mclude year-end star,shes of the number of riders, fixed route by route, final financml data and other qnant~tat~ve data enumerating milestones and accomplishments The ~nformanon ~n these reports should be as of September 30, 1996, 1997 and 1998, and should be submitted to the City no later than November 15, 1996, 1997 and 1998 L It will maintain hab~l~ty insurance m amounts not less than the stanttonly reqmred worker's compensanon insurance, $500,000 m automobile l~abd~ty ~nsurance coverage, and $1,000,000 m general lmbthty ~nsurance coverage It will name the C~ty of Denton, Texas and the State of Texas as additional ~nsurers on habfllty policies and shall prowde C~ty w~th certificates ewdencmg such coverage Said policies shall not be cancelable unless 30 days written nonce ~s gxven to C~ty before cancellation M Agency shall submit ~ts grant funds for the upcoming year no later than December 31, 1995 N Agency shall antic~pate and be actively revolved m publxc hearings on the grant proposal, as required by the American w~th D~sabthnes Act and ndershlp input for system and route changes, at such times as required by law O All requests for reimbursement shall be submitted to the C~ty Manager no later than the seventh day of each month The request should detail the number of service hours operated for both the demand response and f~xed-route service Reimbursement wdl be based upon the number of service hours multiplied by the 'fully allocated rate' determined annually by the C~ty and Agency prior to October 1 Farebox revenue receipt figures shall also be ~ncluded ~n each bllhng statement, and documentation shall be prowded to support such figures In no event under the terms of tins Agreement wall the total compensanon to be pa~d exceed the amount of the Cxty's FTA and State grants, as outlined m the C~ty's contracts w~th the State and the FTA Farebox revenue receipt figures shall be included In each bflhng statement, and documentation shall be provided to support such figures P Agency shall submit to the City cop~es of each accident report, the Police accident report, Agency accident report and red,canon of drug pohcy acnon taken as soon as possible after the accident A rewew of accidents wdl be conducted quarterly w~th the assistance of the City's Risk Manager AAA032AD Q Agency shall submit evidence of comphance with various federal and state regulations pursuant to Ctty's request R The Agency agrees 1 To comply w~th the Privacy Act of 1974, 5 U S C § $52a and regulauons thereunder, when performance under the Project revolves the design, development, or operaUon of any system of records on individuals to be operated by the Agency, its third party contractors, sub-grantees, sub-rectp~ents, or their employees to accomphsh a Government funcUon, 2 To notify the Government when the Agency or any of its third party contractors, sub-grantees, sub-recIpxents, or thetr employees anUc~pates operatmg a system of records on behalf of the Government m order to anplement the ProJect, ~f such system contains reformation about individuals retrievable by the individual's name or other identifier assigned to the mdlv~dual A system of records subject to the Act may not be used in the performance of this Agreement until the necessary and applicable approval and pubhcation reqmrements have been met The Agency, ars tlurd party contractors, sub-grantees, sub-rec:pIents, and their employees agree to correct, mamtam, d~sseminate, and use such records ~n accordance with the terms of the Act, and to comply w~th all apphcable terms of the Act, 3 To include m every sohcitaUon and m every third party contract, sub-grant, and sub-agreement when the performance of work under that proposed tlurd party contract, sub- grant, or sub-agreement may mvolve the design, development, or operation of a system of records on individuals to be operated under that third party contract, sub-grant, or sub-agreement to accomplish a Government functmn, a Privacy Act noUficaUon reforming the third party contractor, sub-grantee, or sub-recipient that it will be reqmred to design, develop, or operate a system of records on individuals to accomplish a Government function subject to the Privacy Act of 1974, 5 U S C § 552a, and Federal agency regulations, and that a vlolaUon of the Act may ~nvolve the unposmon of crmamal penalUes, and 4 To include the text of Subsections 125 c (1) through 125 c (4) of Part II of the Cny's Agreement wtth the Government, m all third party contracts, sub-grants, and sub- agreements under which work for th~s Agreement ~s performed or which is awarded pursuant to tins Agreement or which may revolve the design, development, or operation of such a system of records on behalf of the Government S Prohlbmon of Drugs The Agency agrees to comply w~th the following regulations UMTA regulauons, "Control of Drug Use m Mass Transportauon Operations," 49 C F R Part 653, Department of Transportauon regulauons, "Drug-Free Workplace Requirements (Grants)," 49 C F R Part 29, Subpart F, and Department of Transportation regulations, "Procedures for Transportation Workplace Drug Testmg Programs," 49 C F R Part 40, and "Qualification of Drivers," 49 C F R Part 391, Subpart h Agency shall obtain from ~ts third party contractors, sub-grantees, and sub-recipients certifications reqmred by Department of Transportation regulations, "Government-wide Debarment and Suspension (Non-procurement)," 49 C F R Part 29, and otherwise comply w~th the requirements of those regulatxons AAA032AD T Agency acknowledges that ~f ~t makes a false, fictitious, or fraudulent claun, statement, submlssxon, or certification to the Government m connection with tins Project, the Government reserves the right to pursue the procedures and Lmpose on the Agency the penalties of 18USC § 1001, 31USC §§231and3801etseq,and/or49USC app § 1607(h), and may be deemed by the Government to be appropriate The terms of DeparUnent of Transportation regulations, "Program Fraud Clwl Remedies," 49 C F R Part 31, are apphcable to th~s Project III. TllVlE Otr PERFORMANCE The services funded by the Clty shall be undertaken by the Agency wxthm the following tune frame (Date of Award) through September 30, 1999 IV. METHOD OF PAYMENT A Payment by the City for services prowded hereunder shall be requested by the Agency by letter addressed to City of Denton, 215 East McKmney, 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 C~ty Manager C The C~ty shall submit a request for payment to the FTA Within three (3) working days of rece~vmg reunbursement from the FTA, the City shall send payment to the Agency D It is expressly understood and agreed that (1) the funds payable under this Agreement are subject to receipt of momes from the State of Texas and the FTA Should the funds be curtailed, or should the C~ty be required to curtail Its funding, City shall have the right to terminate tins Agreement unmedlately without penalty In no event under the terms of this Agreement will the total compensation to be paid exceed the amount of the C~ty's FTA and State grants, as outlined in the City's contracts with the State and the FTA It Is expressly understood that this contract in no way obhgates the General Fund or any other momes or credits of the City of Denton E The City shall not be obligated or liable under tlus contract to any party other than the Agency for payment of any momes or provision of any goods or services V. EVALUATION The Agency agrees to participate In an implementation and maintenance system whereby its services can be continuously momtored The Agency agrees to make available its financial records for review by the City at the C~ty's discretion In addition, the Agency agrees to provide the City copies of the following data and reports AAA032AD A All external or internal audits Agency shall submlt a copy of the annual independent audit to C~ty witlun ten (10) days of receipt B All external or ~nternal evaluaUon reports C Agency shall submit quarterly f'manc~al statements to Cxty ~n January, April, July, and September Each statement shall include expenses and ~ncome for the preceding quarter and shall identify the number of participants tn each transportation program the agency operates Agency shall submlt such statements not later than the fifteenth day of the month following the end of each quarter VI. DIRECTORS' MEETINGS During the term of this Agreement, the Agency shall cause to be delivered to the C~ty cop~es of all not~ces of meetlngs of ~ts Board of Dtrectors, setting forth the tune and place thereof Such not~ee shall be dehvered to the C~ty tn a tnnely manner to give adequate not,ce, and shall, lnclude an agenda and a brief description of the matters to be d~scussed Agency understands and agrees that C~ty representatlves shall be afforded access to all Board of Directors' meetings Minutes of all meetings of the Agency's govermng body shall be submitted to the C~ty within ten (10) working days of approval VII. SUSPENSION OR TERMINATION The C~ty may suspend or terminate th~s Agreement and payments to the Agency, m whole or part, for cause Cause shall include but not be lnnlted to the following A Agency's nnproper, m~suse, or inept use of funds, B Agency's failure to comply w~th the terms and conditions of th~s Agreement, C Agency's submlss~on of data or reports that are incorrect or incomplete m any material respect, D Appointment of a trustee, receiver or l~qmdator for all or a substantial part of the Agency's property, or mst~tutlon of bankruptcy, reorgamzatlon, rearrangement of or hqmdatlon proceedings by or agamst the Agency, or E If for any reason the carrymg out of thts Agreemem ~s rendered nnposslble or ~nfeaslble In case of suspension, the C~ty shall advise the Agency, ~n writing, as to condmons precedent to the resumption of funding and specify a reasonable data for comphance AAA032AD In case of termmatmn, the Ageacy will remit to the C~ty any unexpended C~ty funds Acceptance of these funds shall not constitute a waiver of any clann the City may otherwise have arising out of tins Agreement VIII. EOUAL OPPORTUNITY A Agency will submit for City approval a written plan for comphance with the Equal Employment and Aff'nrnatlve Action Federal provisions, w~thm one hundred twenty (120) days of the effective date of this Agreement B Agency shall comply with all applicable equal employment opportumty and affirmative actmn laws or regulations C Agency will furmsh all mformat~on and reports requested by the Ctty, and will permit access to its books, records, and accounts for purposes of mvesuganon to ascertain compliance with local, state and Federal rules and regulaUons D In the event of the Agency's non-comphance with the Federal non-d~scrnnmaUon requirements, the Agreement may be cancelled, termma~d, or suspended in whole or m 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 md~rect, winch would conflict in any manner or degree wtth the performance of serwces reqmred to be performed under tlus Agreement The Agency further covenants that m the performance of tins Agreement, no person hawng such interest shall be employed or appointed as a member of Its govermng body B The Agency further covenants that no member of ~ts govermng body or ~ts staff, subcontractors or employees shall possess any interest ~n or use h~s positron for a purpose that ~s or gxves the appearance of being motivated by desire for private gain for Inmself, or others, partmularly those with winch he has family, business, or other ttes C No officer, member, or employee of the City and no member of its govermng body who exemlses any function or responsibilities m the revtew or approval of the undertaking or carrying out of tins Agreement shall (1) participate m any dec~ston relating to the Agreement winch affects ins personal interest or the interest ~n any corporation, partnership, or association m which he has direct or indirect interest, or (2) have any interest, dxrect or indirect, m this Agreement or the proceeds thereof X. _NF2._Q!!~ Agency shall not employ ~n any pad capacity any person who ~s a member of the anmed~ate family of any person who is currently employed by Agency, or ~s a member of Agency's govermng board The term "member of unmed~ate family" includes wife, husband, AAA032AD son, daughter, mother, father, brother, stster, m-la~vs, aunt, uncle, nephew, mece, step-parent, step-cluld, half-brother and half- stster XI SPECIAL CONDITIONS A Agency agrees to undertake, carry out, and complete the Project consistent w~th the terms and condmons determmed by the Secretary of Labor to be fair and equitable to protect the ~nterests of employees affected by the Project and meet reqmrements of Secnon 13(c) of Federal Transtt Act, as amended, 49 U S C App Secuon 1609(c), and Department of Labor (DOL) gmdelmes set forth m 29 C F R Part 215 These terms and condmons are ~dent~fied m the letter of certlficatxon from DOL to FTA whose date ~s set forth ~n the Notification of Grant Approval to the Ctty The Agency agrees to carry out the Grant ~n comphance w~th the con- dmons stated m that DOL letter That letter and any documents rated ~n the letter are incorporated herem by reference and made part of th~s Grant B Agency agrees to comply w~th the requirements of Section 8 of the Federal Transa Act, as amended, 49 U S C App Section 1607, and any m~plementlng regnlaUons that may be ~ssued thereunder C Agency agrees that xt will utilize ~ts admlmstrat~ve process to sohc~t and consxder pubhc comment prior to ra~smg fares or implementing a major reducuon of serwce D Agency agrees that the Federal Government and the C~ty may, at least annually and more frequently in xts dtscretmn, etther conduct or reqmre the Agency to have independently conducted, rewews and audits as the Government may deem appropriate pursuant to the prowsxons of Section 9(g) of the Federal Transit Act, as amended, 49 U S C App Secuon 1607a(g), and any regulations or gutdellnes that may be ~ssued by the Government E Agency agrees and assures that the rates charged elderly and handmapped persons during nonpeak hours for transportation utilizing or tnvolwng the facthttes and eqmpment financed pursuant to tins Agreement will not exceed one-half of the rates generally apphcable to other persons at peak hours, whether the operation of such famhtles and equipment ~s by the Agency or xs by another enttty under lease or otherwise The Agency agrees and assures that it will gxve the rate reqmred hereto to any person presenting a Medicare card duly xssued to that person pursuant to Txtle II or Tttle XVIII of the Socxal Security Act F Agency agrees to comply w~th apphcable Buy America statutory and regulatory prowslons The Agency may, w~thout prtor approval, procure an assoctated capital maintenance ~tem ehgthle under Seet~on 90) of the Federal Transit Act, 49 U S C App Section 1607a(1), by contract d~reetly w~th the ortgmal manufacturer or suppher of the ~tem to be replaced, prowded that the Agency first certifies m wrtung to the Government that (1) such manufacturer or suppher xs the only soume of such ~tem, and (2) the price of such xtem is no h~gher than the price pa~d for such acm by hke customers G Agency shall unplement a project management plan, as approved by the Federal Government, m accordance wtth the requtrements of Section 23 of the Federal Transtt Act, as AAA032AD amended, 49 U S C App Section 1619, and any unplement~ng regulations that may be there- under XII. ADDITIONAL COVENANTS OF AGENCY A Def'm~tlons As used in ti'ns section 1 A~reement means any Grant Agreement or Cooperative Agreement 2 Application means the signed and dated proposal as may be amended for Federal f'manclal assistance for the Project, together with all explanatory, supporting, and supplementa~ documents heretofore filed with and accepted and approved by the Government (UMTA) by or on behalf of the Agency 3 Ao~rovaL Author~zation. Concurrence. Waiver means a conscious written act by an authortzed official of the UMTA and City granting pennlsslon to the Agency to perform or omit an action pursuant to th~s Agreement, which action may not be performed or omitted without such permiss~on An approval, authorization, concurrence, or waiver permitting the performance or omission of a specific action shall not constitute permiss~on to perform or omit other similar actions unless such permission is clearly stated Oral permiss~on or interpretations have no legal force or effect 4 UMTA Du:ective includes the most recent circulates, notices, and orders that present reformation about UMTA programs, apphcatlon processing procedures, and gmdance for admxmstermg approved Projects, there are also Department of Transportation d~rect~ves that may be applicable to the Project 5 Government means the Umted States of America, or its cogmzant agency, the Department of Transportation (DOT), or ~ts operating admlmstratlon, the Urban Mass Transportation Admimstratlon (UMTA), used herein mterchangeably 6 Mass Transportation includes public transportation and means transportation by bus, rail or other conveyance, either publicly or privately owned, that provides general or special transportation serwce (but not tncludmg school bus, charter or sightseeing service) to the public on a regular and continmng basis 7 Pro~ect means the task or set of tasks provided for m the Project Budget which the Agency undertakes to perform pursuant to this Agreement 8 Pro,eot or Proaram Budeet means the most recently dated statement, approved by the Government, of the estunated total cost of the ProJect or Program, the ~tems to be deducted from such total m order to calculate the estimated net Project cost, the maxunum amount of Federal assistance for wbach the Agency, through the City, is currently ehg~ble, the specific items (including contingencies and relocation) for which the total may be spent, and the estunated cost of each of such items AAA032AD 9 Secretary means Secretary of the Department of Transportation or his or her duly authorized designee 10 UMTA means the Urban Mass Transportation Admimstratlon of the U S Department of Transportation 11 City means City of Denton, Texas B In the performance of its obligations pursuant to tlus Agreement, the Agency agrees to comply with all applicable provisions of Federal, State, and local laws, regulations, and UMTA d~rectives The Agency understands and agrees that Federal laws, regulations, policies, and related admimstratlve practices m force and made applicable to tins Agreement on the date of execution may be modified from tune to tnne, and that the most recent of such provisions will govern admimstratlon of tins Agreement at any particular th'ne, except if there is sufficient evidence in the Agreement of a contrary intent Such contrary intent might be evidenced by express language m any amendments to the Agreement L~ewlse, new Federal laws, regula- tions, pohcles and admwastratlve 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 reqmrements, the Agency shall include notice of such requirements m all thud party contracts, sub-grants, and other sub-assistance agreements financed w~th Government (UMTA) assistance All lLrmts or standards set forth m tins Agreement to be observed in the performance of the Project are mimmum reqmrements If there is a conflict between Federal and State or local reqmrements, the Agency shall reform the City and the Government (UMTA) in order that an appropriate resolution may be arranged C Agency shall submit to the City such data, reports, records, contracts, and other documents relating to the Project as the City may, during the course of the Project and for three years thereafter, reqmre 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 reqmre D Agency shall Lnme&ately notify the City of any change in law, conditions, or any other event that may sigmficantly affect its ability to perform the Project in accordance with the terms of this Agreement In addition, the Agency shall Lmme&ately 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 admimstration or enforcement of applicable Federal laws or regulations Before the Agency may join the City as a named party to litigation, for any reason, the Agency agrees to first inform the City, this proviso applies to any type of litigation whatsoever, in any forum E Absent the express, written consent of the Government or the City and notwithstand- ing any concurrence by the Government in or approval of the award of any contract or subcontract or the solicitation thereof, neither the Government nor the City shall be subject to any obhgat~ons or liabilities by contractors of the City or their subcontractors or any other person not a party to tins Agreement m connection with the performance of this Project AAA032AD F Agency shall prepare and maintain a ProJect Budget A copy of the satd budget shall be subrmtted to the City by March 1 of each year The Agency shall carry out the ProJect and shall recur obhgat~ons against and make d~sbursemems of Project funds only in conformity wtth the latest approved budget for the ProJect The Project Budget may be revtsed, from tune to tune, to the extent permitted by and tn conformance with the requtrements of the Government G Agency shall establish and mamtam etther a separate set of accounts or accounts, wlthm the framework of an established and approved accounting system, for the ProJect tn a manner consistent with 49 C F R § 18 20, or OMB Ctrcular A-il0, as amended, as may be applicable H Consistent with the provisions of 49 C F R § 18 21, or OMB Ctrcular A-il0, as amended, as may be applicable, the Agency shall record m the Project Account, and depostt in a bank or trust company all Project payments tt receives from the City pursuant to thts Agreement and all other funds prowded 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 credit The Agency ts encouraged to use banks that are owned at least 50 percem by mmonty group members I Expenditures made by the Agency shall be reimbursable as allowable costs to the extent that they meet all the reqmrements set forth below They must 1 Conform wtth the Project Description and the Project Budget and all other terms of the Agreement, 2 Be necessary m order to accomphsh the ProJect, 3 Be reasonable m amount for the goods or services purchased, 4 Be actual net costs to the Agency (t e, the price paid mtnus any refunds, rebates, or other ~tems of value rece~vexl by the Agency that have the effect of reducmg the cost actually recurred, excluding Program Income), 5 Be recurred (and be for work performed) after the date of this Agreement, unless spectfic authonzauon from the Government (UMTA) or the Ctty to the contrary ts received, 6 Unless permitted otherwise by Federal statute or regulation, conform wtth Federal guidelines or regulations and Federal cost pnnctples as set forth tn the standards of OMB Ctreular A-122, Revtsed, "Cost Principles for Nonprofit Orgamzatlons," and the standards of 48 C F R Part 31 are apphcable, 7 Be satisfactorily documented, and 8 Be treated umformly and conststently under accounting principles and procedures approved and prescribed by the Government or Ctty for the Agency, and those approved or prescribed by the Agency for its contractors AAA032AD J All costs charged to the ProJect, including any approved services contrtbuted by the Agency or others, shall be supported by properly executed payrolls, tune records, invoices, contracts, or vouchers evldencmg m detail the nature and propriety of the charges The Agency shall also maintain accurate records of all ProJect Funds derived from the unplementatlon of the Project K Any check or order drawn by the Agency w~th respect to any item that ~s or will be chargeable against the Project Account will be drawn only in accordance with a properly stgned voucher then on file in the office of the Agency stating m proper detail the purpose for which such check or order ~s drawn All checks, payrolls, lnvomes, contracts, vouchers, orders, or other accounting documents pertatmng in whole or m pan to the Project shall be clearly identified, readily accessible, and, to the extent feasible, kept separate and apart from all other such documents L The Agency shall permit the Secretary and the Comptroller General of the Umted States, or any of thetr duly authorrzed representattves to inspect all work, materials, payrolls, and other data and records w~th 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 b~ddmg procedures as defined by the Secretary of Transportataon, the Agency shall reqmre those contractors to permit the Secretary of Transportation and the Comptroller General of the Umted States, or any of their duly authorized representatives to respect all work, materials, payrolls, and other data and records w~th regard to the Project, and to audit the books, records, and accounts pertalmng to such contracts with regard to the ProJect If the C~ty IS found to be responsible for meeting the audit requirements of 49 C F R § 18 26 and OMB Circular A-128 or any rews~on or supplement thereto, the Agency shall comply with these requests The Agency is responstble for obtmmng any audits required by the Government (UMTA) Closeout of the ProJect will not alter the Agency's audit responstbfilt~es 1 The Agency shall report ~ts cash dlSbUrsemetus and balances ~n a umely manner as reqmred by the C~ty or Government 2 The Agency shall provide for effective control and accountability for all Project funds consistent w~th Federal reqmrements and procedures for use of the letter of credit 3 The Agency shall Lmpose on Its sub-recipients all apphcable requ~remetus of Subsections 105 b (1) (a), (b), and (c) of Part II of th~s Agreement M Neither the Agency nor any sub-recipient may use Federal assistance funds for publicity or propaganda purposes designed to support or defeat legislation pending before Congress N Agency agrees that 1 Any interest earned by the Agency on Federal funds must be remitted to the Government, except as provided by the Intergovernmental Cooperation Act, 31 U S C § 6503(a), or the Indian Self-Determination Act, 23 U S C § 450 AAA032AD 2 Upon notice by the Government (UMTA) to the City of specific amounts due the Government, the Agency shall promptly remit any excess payment of amounts or &sallowed costs to the Government (UMTA), mcludmg any interest due thereon O The Agency recogmzes that the Government (UMTA) reserves the right to deobhgate unspent Federal funds prior to Project closeout, ~f such occurs, City may terminate tl~s Agreement w~thout penalty P Agency agrees that, upon written not~ce, the City may suspend or terminate all or part of the financial assistance prowfled here~n ~f the Agency ~s, or has been, m wolat~on of the terms of tins Agreement, or if the Government or the C~ty determines that the purposes of the statute under which the Project is authorized would not be adequately served by continuation of Federal financial assistance for the Project Any failure to make reasonable progress or other wolatlon of the Agreement that s~gmficantly endangers substanual performance of the Project shall be deemed to be a breach of thas Agreement If the Agency's failure e~ther to make adequate progress or to make reasonable use of the Prolect real property, facflmes, or eqmpment, or to honor the terms of ttus Agreement ~s determined by the C~ty to be willful or unreasonable, the City reserves the right to reqmre the Agency to refund to the City the entire amount of Project funds provided by the C~ty or any lesser amount as may be determmed by the City Q Within 30 days of the termination of th~s Agreement, the Agency shall submit a final Financial Status Report (Standard Form 269), a cert~ficaUon or summary of Project expenses, and third party audtt reports, as apphcable 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 abthty of costs recurred to determine settlement of the Federal assistance for the Project m accordance wah Part I of th~s Agreement If City has made payments to the Agency ~n excess of the total amount of the Federal assistance due, the Agency shall promptly remit to the C~ty that excess and interest as may be reqmred by Subsections 105 b and 105 e of Part II of the City's Agreement with the Government Prolect closeout occurs when the City noufies the Agency and forwards the final Federal assistance payment or when the Agency's remittance of the proper refund has been acknowledged by the C~ty Project closeout shall not mvahdate any contmmng obhgatlons maposed on the Agency by this Agreement or by the City's final nouficat~on or acknowledgment R The following contht~ons are apphcable to real property, eqmpment, and supphes financed under tins Agreement 1 The Agency agrees to observe the property management standards set forth ~n 49 C F R §§ 18 31, 18 32, and 18 33, or OMB C~rcular A-110, Attachment N, as appropriate, as now or hereafter amended, and any gu~dehnes or regulations that the Government may ~ssue Exceptions to the requirements of 49 C F R §§ 18 31, 18 32, and 18 33, and to OMB C~rcular A-Il0, Attachment N must be specifically approved by the C~ty The C~ty reserves the right to require the Agency to transfer tttle to any equxpment financed w~th Federal assistance made available by th~s Agreement as set forth m 49 C F R § 18 32(g) or OMB C~rcular A-110, Attachment N, as may be approprtate The C~ty also reserves the right to &rect the thsposmon of real property or equipment financed with Federal assistance funds made available under th~s AAA032AD Agreement, as set forth ~n 49 C F R §§ 18 31 and 18 32 or OMB C~rcular A-Il0, Attachment N, as may be applicable 2 The Agency agrees to maintain the Project real property, equipment, and supphes m good operating order, and m accordance w~th any gmdelmes, d~rect~ves, or regulations that UMTA may ~ssue If, during the period, any Project real estate, eqmpment, or supphes are not used m mass transportatmn service, whether by planned w~thdrawal, misuse or casualty loss, the Agency shall lmmedtately notify the C~ty Unless otherwise approved, the Agency shall remit to the C~ty a proportional amount of the fair market value, if any, of the real property, eqmpment, or supphes whose aggregate value exceeds $5,000, which value shall be detenmned on the hasps of the ratio of the Federal assistance awarded by the Government to the actual cost of the ProJect The following gmdelmes shall be followed m determlmng the fatr market value Unless otherwise approved m writing by UMTA, the fair market value of equipment and supplies will be the value of that property at the tune munedmtely before the reason occurred that prompted the dems~on to w~thdraw that property from transit use For example, m the event of loss of or damage to the property by casualty or fire, the fair market value of the property will be calculatml unmedmtely before the loss or damage, trrespective of the extent of insurance coverage In the case of eqmpment and supplies, fair market value shall be based on straight line depreciation of the eqmpment and supphes, based on the industry standard for useful hfe, trrespect~ve of the reason for w~thdrawal of that property from transit use In the case of real property, the fatr market value shall be determined by competent appraisal based on an appropriate date as datermmed by the Government conststent w~th the standards of 49 C F R Part 24 The City, however, reserves the right to require another method of valuation to be used tf the Government (UMTA) finds that specml c~rcumstances so reqmre to assure the protection of the Federal investment In unusual ctrcumstances, the Agency may request that another reasonable method of determnnng fair market value be used, ~ncludmg but not lumted to accelerated depreciation, comparable sales, or estabhshed market values In determining whether to approve an alternate method, the City may consider any acnon taken, omission made or unfortunate occurrence suffered by the Agency w~th respect to the preservation or conservation of the value of the real property, eqmpment, or supphes that, for any reason, have been withdrawn from service 3 The Agency further agrees that the ProJect real property, eqmpment, and supplies shall be used for the prows~on of mass transponaUon service w~tlun the ama and ~n the manner set forth m the Project Description Should the Agency unreasonably delay ~n or refrain from using ProJect real estate or eqmpment, m the manner set forth m the ProJect Description, the Cay 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 w~th regard to the use of the real property, eqmpment, and supplies, and submit to the C~ty upon request such lnformaUon as may be reqmred to assure compliance with th~s Section and shall unmedtately notify the C~ty m all cases m which ProJect real property, eqmpment, or supphes are used m a manner substantmlly different from what ~s set forth m the Project Description The C~ty reserves the right to reqmre the Agency to restore Project real property, eqmpment, or supplies or pay for damage to ProJect real property, eqmpment, or supphes as a result of abuse or misuse of such property w~th the Agency's knowledge and consent AAA032AD S Agency may not execute any transfer of title, lease, hen, pledge, mortgage, encumbrance, contract, grant anticipation note, ahenatxon, or other obhgat~on that ~n any way affects the Federal interest m any Project real property or equipment, nor may the Agency obhgate ~tself, m any other manner, to any third party with respect to Project real property or equipment, unless such transfer of t~tle, lease, hen, pledge, mortgage, encumbrance, contract, grant anticipation note, alienation, or other obhgat~on is expressly authorized ~n writing by the City and Government (UMTA), nor may the Agency, by any act or omission, adversely affect the Federal interest or nnpa~r the Agency's contmumg control over the use of Project real property or eqmpment T Cavil Rights 1 Eoual Emnlovment Oo~ortumtv - The following reqmrements are applicable to the ProJect (a) In connection wxth Project nnplementat~on, the Agency may not d~scr~mmate against any employee or apphcant for employment because of race, color, age, creed, sex, or national or,gm The Agency shall take affirmative action to ensure that apphcants are employed, and that employees are treated during employment, w~thont regard to their race, color, religion, sex, age, or national ongm Such action shall include, but not be hm~ted to, the following employment, upgrading, demot~onor transfer, recrmtment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and select,on for training, including apprenticeship The Agency shall insert the foregoing prows~on (modified only to show the particular contractual relationship) m all of ~ts contracts ~n connection w~th the develop- ment or operation of the Project, except contracts for standard commercml supplxes or raw materials and construction contracts, and shall require all such contractors to insert a sumlar prowslon m all subcontracts, except subcontracts for standard commercial supphes or raw materials (b) If, as a condition of assistance, the Agency has submitted, and the C~ty has approved, an equal employment opportumty program that the Agency agrees to carry out, such program ~s incorporated Into th~s Agreement by reference Such program shall be treated as a contractual obhgat~on, and failure to carry out the terms of that equal employment opporturuty program shall be treated as a wolatlon of th~s Agreement Upon notification to the Agency of ~ts failure to carry out the approved program, the Government or the C~ty will nnpose such remedies as It may deem appropriate, which remedies may ~nclude termination of financial assistance as set forth ~n Section ~.06 of Part II of the City's Agreement w~th the Government or other measures that may affect the ablhty of the Agency to obtam future financial assistance under the Urban Mass Transportation Act of 1964, as amended, or t~tle 23, Umted States Code (H~ghways) 2 Sn~oll, Minority and Women's Business Enteror~se The following prows~ons are apphcable to the Project (a) The Agency shall be responsible for meeting the reqmrements regardmg partxclpat~on by minority business enterprises (MBE) m Department of Transportation programs AAA032AD set forth at 49 CF R Part 23 Pursuant to the reqmremems of 49 CFR § 23 43, the following, clauses must be inserted m each third party contract (0 POLICY IT IS THE POLICY OF THE DEPARTMENT OF TRANS- PORTATION THAT MINORITY BUSINESS ENTERPRISES, AS DEFINED IN 49 C F R PART 23, SHALL HAVE THE MAXIMUM OPPORTUNITY TO PARTICIPATE IN THE PERFORMANCE OF CONTRACTS FINANCED IN WHOLE OR IN PART WITH FEDERAL FUNDS UNDER THIS AGREEMENT CONSEQUENTLY, THE MBE REQUIREMENTS OF 49 C F R PART 23 APPLY TO THIS AGREEMENT (n) MBE OBLIGATION THE AGENCY AND ITS CONTRACTORS AGREE TO ENSURE THAT MINORITY BUSINESS ENTERPRISES AS DEFINED IN 49 C F R PART 23 HAVE THE MAXIMUM OPPORTUNITY TO PARTICIPATE IN THE PERFORMANCE OF CONTRACTS AND SUBCON- TRACTS FINANCED IN WHOLE OR IN PART WITH FEDERAL FUNDS PROVIDED UNDER THIS AGREEMENT IN THIS REGARD ALL AGENCIES AND CONTRACTORS SHALL TAKE ALL NECESSARY AND REASONABLE STEPS IN ACCORDANCE WITH 49 C F R PART 23 TO ENSURE THAT MINORITY BUSINESS ENTERPRISES HAVE THE MAXIMUM OPPORTUNITY TO COMPETE FOR AND PERFORM CONTRACTS AGENCY AND ITS CONTRACTORS SHALL NOT DISCRIMINATE ON THE BASIS OF RACE, COLOR, NATIONAL ORIGIN OR SEX IN THE AWARD AND PERFORMANCE OF CONTRACTS ASSISTED BY THE DEPARTMENT OF TRANSPORTATION (b) The Agency shall adwse each sub-recipient, contractor, and subcontractor that failure to carry out the reqmrements set forth tn 49 C F R § 23 43(a) shall constttute a breach of contract and, after the notfficat~on of the Department of Transportauon, may result tn termmat~on of the Agreement or contract by the Agency or such remedy as the Agency deems appropriate (c) The Agency shall take action concerning lessees as follows (0 The Agency shall not exclude MBEs from part~ctpatton m business oppormmt~es by entering into long-term, exclusive agreements with non-MBEs for the operatton of major transportauon-related activities for the provtston of goods and servtces to the facthty or to the publtc on the famhty 00 If the Agency ~s reqmred to submit afftrmauve actmn programs under 49,C F R § 23 41(a)(2) or 49 C F R § 23 41(a)(3) and has bus~ness oppormmt~es for lessees, It shall submit for approval to the Department of Transportation w~th ~ts programs overall goals for the part~mpatton as lessees of fa'ms owned and controlled by MBEs These goals shall be for a specffied period of ttme and shall be based on the factors listed in 49 C F R § 23 45 (g)(5) The Agency shall rewew these goals at least annually, and whenever they expire, analyzing projected versus actual MBE parttctpat~on during the period covered by the review and any changes m factual cm:umstances affecting the select,on of goals Following each rewew, the Agency shall submtt new overall goals to the Department of Transportatton for AAA032AD approval If Agency fails to meet its goals for MBE lessees, it shall demonstrate to the City and the Government m writing that it made reasonable efforts to meet the goals (Il0 Except as provided m this section, the Agency is required to mclude lessees m aff'u'mat~ve action programs Lessees themselves are not subject to the requutements of this Part, except for the requirement under 49 C F R § 23 7 that lessees avoid dlscrmainaUon against MBEs 3 Tide VI Civil Rights Act of 1964 The Agency shall comply and shall assure the compliance by contractors and subcontractors under tins Project with all requirements of Tnle VI of the Civil Rights Act of 1964, 42 U S C § 2000d, Depat'tment of Transportation regulations, "NondiscrlmmaUon in Federally-Assisted Programs of the Department of TransportaUon -- Effecmation of Title VI of the Civil Rights Act," 49 C F R Part 21, and the Assurance by the Agency pursuant thereto 4 Nondiscrunmatlon on the Basis of Handlcan The Agency shall ensure that all fixed facility construction or alteration and all new equipment included in the Project shall comply with Department of Transportation regulations, "Nondiscrimination on the Basis of Handicap m Programs and Activities, Receivmg or Benefittmg from Federal Financial Assistance," 49 C F R Part 27, and UMTA regulations, "Transportation for Elderly and Handicapped Persons," 49 C F R Part 609, and any amendments thereto that may be issued 5 Competition in Procurement The Agency agrees to comply with the Procurement Standards requirements set forth at 49 C F R § 18 36 or OMB Circular A-110, Attachment O, as may be apphcable, and with any supplementary dffectlves or regulations including UMTA Circular 4220 lB, and any revisions thereof, as may be applicable UMTA reserves the right to review the Agency's techmcal specifications and requirements, where such review is necessary for proper Project admn'ustration The Agency further agrees that, notwith- standing the requirements of Section 121 of Part II of the City's Agreement with the Government, no Federal funds shall be used to support procurements utihzmg exclusionary or discrcminatory 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 Governmem has a vested interest m the settlement of any dispute, default, or breach mvolving any federally- assisted tlurd party contract Agency agrees that the Government retains the right to a proportionate share, based on the percentage of the Federal share conunltted to the Project, of any proceeds derived from any third party recovery Therefore the Agency shall avail atself of all legal rights available under any third party contract The Agency shall notify the Caty and Government of any current or prospective htigatlon or major disputed claun pertaimng to any third party contract The City and Government reserves the right to concur in any compromise or settlement of any clann by the Agency revolving 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 mvolved 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 AAA032AD Agency agrees to reform ~e City Government before doing so, this proviso apphes to any type of httgatlon whatsoever, m any forum 8 Etlgg$ The Agency shall maintain a written code or standards of conduct that shall govern the performance of its officers, employees, board members, or agents engaged in the award and admlmstraUon 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 admlmstratlon of a contract supported by Federal funds if a confhct of interest, real or apparent, would be involved Such a confhct would arise when any of the parties set forth below has a financial or other interest m the firm selected for award 0) The employee, officer, board member, or agent, (11) Any member of his or her munediate family, (111)I-IIs or her partner, or (ay) An orgamzation 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 sohctt nor accept gratumes, favors or anything of monetary value from present or potential contractors or sub-recipients The Agency may set mlmmum rules where the financial interest is not substantml or the glft ls an unsohclted 1tern of nominal intrinsic value As permitted by State or local law or regulations, such code or standards shall provide for penalties, sanctions, or other dlSclphnary 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 Con~ress No member of or delegate to the Congress of the Umted States shall be admitted to any share or part of this Project or to any benefit therefrom U CONSTRUCTION CONTRACTS The following provisions are apphcable to federally assisted construction contracts 1 Nondiscnmmauon Pursuant to the regulations of the Secretary of Labor at 41 C F R §§ 60-1 4(b)(1) and 60-1 4(c) (a) The Agency hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined In the regulations of the Secretary of Labor at 41 C F R Chapter 60, that is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the cretin of the Federal Government pursuant to a grant, cooperative agreement, contract, loan, insurance, or guarantee, or undertaken pursuant to a Federal program revolving the grant, cooperative agreement, contract, loan, insurance, or guarantee, the following equal oppormmty clause AAA032AD DURING THE PERFORMANCE OF THIS CONTRACT, THE CONTRACTOR AGREES AS FOLLOWS (l) THE CONTRACTOR WILL NOT DISCRIMINATE AGAINST ANY EMPLOYEE OR APPLICANT FOR EMPLOYMENT BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN THE CONTRACTOR WILL TAKE AFFIRMATIVE ACTION TO ENSURE THAT APPLICANTS ARE EMPLOYED, AND THAT EMPLOYEES ARE TREATED DURING EMPLOY- MENT WITHOUT REGARD TO THEIR RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN SUCH ACTION SHALL INCLUDE, BUT NOT BE LIMITED TO THE FOLLOWING EMPLOYMENT, UPGRADING, DEMO- TION, OR TRANSFER, RECRUITMENT OR RECRUITMENT ADVERTISING, LAYOFF OR TERMINATION, RATES OF PAY OR OTHER FORMS OF COMPENSATION, AND SELECTION FOR TRAINING, INCLUDING APPRENTICESHIP THE CONTRACTOR AGREES TO POST IN CONSPICU- OUS PLACES, AVAILABLE TO EMPLOYEES AND APPLICANTS FOR EMPLOYMENT, NOTICES TO BE PROVIDED SETTING FORTH THE PRO- VISIONS OF THIS NONDISCRIMINATION CLAUSE (n) THE CONTRACTOR WILL, IN ALL SOLICITATIONS OR ADVER- TISEMENTS FOR EMPLOYEES PLACED BY OR ON BEHALF OF THE CONTRACTOR, STATE THAT ALL QUALIFIED APPLICANTS WILL RECEIVE CONSIDERATION FOR EMPLOYMENT WITHOUT REGARD TO RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN (m) THE CONTRACTOR WILL SEND TO EACH LABOR UNION OR REPRESENTATIVE OF WORKERS WITH WHICH IT HAS A COLLECTIVE BARGAINING AGREEMENT OR OTHER CONTRACT OR UNDERSTANDING, A NOTICE TO BE PROVIDED ADVISING THE LABOR UNION OR WORK- ERS' REPRESENTATIVE OF THE CONTRACTOR'S COMMITMENTS UNDER SECTION 202 OF EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, AND SHALL POST COPIES OF THE NOTICE IN CONSPICUOUS PLACES AVAILABLE TO EMPLOYEES AND APPLICANTS FOR EMPLOYMENT 0v) THE CONTRACTOR WILL COMPLY WITH ALL PROVISIONS OF EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, AND OF THE RULES, REGULATIONS, AND RELEVANT ORDERS OF THE SECRETARY OF LABOR (v) THE CONTRACTOR WILL FURNISH ALL INFORMATION AND REPORTS REQUIRED BY EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, AND BY THE RULES, REGULATIONS, AND ORDERS OF THE SECRETARY OF LABOR, OR PURSUANT THERETO, AND WILL PERMIT ACCESS TO ITS BOOKS, RECORDS AND ACCOUNTS BY THE SECRETARY OF LABOR AND UMTA FOR PURPOSES OF INVESTIGATION TO ASCER- TAIN COMPLIANCE WITH SUCH RULES, REGULATIONS, AND ORDERS AAA032AD (w) IN THE EVENT OF THE CONTRACTOR'S NONCOMPLIANCE WITH THE NONDISCRIMINATION CLAUSES OF THIS AGREEMENT OR WITH ANY OF SUCH RULES, REGULATIONS, OR ORDERS, THIS AGREEMENT MAY BE CANCELLED, TERMINATED, OR SUSPENDED IN WHOLE OR IN PART AND THE CONTRACTOR MAY BE DECLARED INELIGIBLE FOR FURTHER FEDERAL OR FEDERALLY ASSISTED CONTRACTS IN ACCOR- DANCE WITH PROCEDURES AUTHORIZED IN EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, AND SUCH OTHER SANCTIONS MAY BE IMPOSED AND REMEDIES INVOKED AS PROVIDED IN EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, OR BY RULE, REGULATION, OR ORDER OF THE SECRETARY OF LABOR, OR AS OTHERWISE PROVIDED BY LAW (vu) THE CONTRACTOR WILL INCLUDE THE PROVISIONS OF PARA- GRAPHS (a) THROUGH (g) OF THIS SUBSECTION IN EVERY SUBCON- TRACT OR PURCHASE ORDER UNLESS EXEMPTED BY RULES, REGULA- TIONS, OR ORDERS OF THE SECRETARY OF LABOR ISSUED PURSUANT TO SECTION 204 OF EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, SO THAT SUCH PROVISIONS SHALL BE BINDING UPON EACH SUBCON- TRACTOR OR VENDOR THE CONTRACTOR WILL TAKE SUCH ACTION WITH RESPECT TO ANY SUBCONTRACT OR PURCHASE ORDER AS THE SECRETARY OF LABOR OR UMTA MAY DIRECT AS A MEANS OF ENFORCING SUCH PROVISIONS, INCLUDING SANCTIONS FOR NONCOM- PLIANCE, PROVIDED, HOWEVER, THAT IF A CONTRACTOR BECOMES INVOLVED IN, OR IS THREATENED WITH, LITIGATION WITH A SUBCON- TRACTOR OR VENDOR AS A RESULT OF SUCH DIRECTION, THE CONTRACTOR MAY REQUEST THE UNITED STATES TO ENTER INTO SUCH LITIGATION TO PROTECT THE INTERESTS OF THE UNITED STATES (b) The Agency shall assure that each nonexempt prune contractor and subcontractor shall include m each nonexempt contract the reqmrements of Subsection 115 a (1) (a) through (g) of Part II of flus Agreement (c) The Agency further agrees that ~t will be bound by this equal opportumty clause with respect to ~ts own employment practices when ~t participates m federally assisted construction work, prowded that ff the Agency so participating ~s a State or local government, flus equal opportumty clause does not apply to any agency, instrumentality or subd~ws~on of such government that does not participate m work under the Agreement (d) The Agency agrees that ~t w~ll assist and cooperate actively w~th UMTA and the Secretary of Labor m obta~mng the compliance of contractors and subcontractors w~th the equal opportumty clause and the rules, regulatxons, and relevant orders of the Secretary of Labor, that ~t will prowde UMTA and the Secretary of Labor such mformat~on as they may requLre for the supervision of such comphance, and that ~t w~ll otherwise assist UMTA m d~s- charging ~ts prunary responsibility for secunng compliance AAA032AD (e) The Agency further agrees that it will refram from entermg ~nto any contract or contract modification subject to Executive Order 11246 of September 24, 1965, as amended, with any contractor that is debarred from or has not demonstrated eligiblhty for Gov- ernment contracts and federally assisted construction contracts pursuant to the Executive Order, and will carry out such sanctions and penalties for v~olat~on of the equal opportumty clause as may be tmposed upon contractors and subcontractors by UMTA or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order In addmon, the Agency agrees that if ~t fads or refuses to comply with these undertakings, UMTA may take any or all of the following actions Cancel, terminate, or suspend m whole or m part this Agreement, refrain from extending any further assistance to the Agency under the program with respect to which the failure or refusal occurred until samfactory assurance of future compliance has been received from such Agency, and refer the case to the Department of Jusuce for appropriate legal proceedmgs 2 SnecIficanons The Agency hereby agrees that ~t will incorporate or cause to be ~ncorporated the specfficatlons set forth below mto all Federal or federally assisted construction contracts, or modifications thereof, m excess of $10,000 to be performed ~n geographical areas designated by the D~rector, Office of Federal Contract Comphance Programs of the Depa~u~ent of Labor pursuant to the regulatxons of the Secretary of Labor at 41 C F R § 60-4 3 and m construction subcontracts m excess of $10,000 necessary m whole or m part to the performance of nonconstruction Federal contracts and subcontracts covered under ExecuUve Order 11246 STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUC- TION CONTRACT SPECIFICATIONS (EXECUTIVE ORDER 11246) (1) AS USED IN THESE SPECIFICATIONS (a) "COVERED AREA" MEANS THE GEOGRAPHICAL AREA DE- SCRIBED IN THE SOLICITATION FROM WHICH THIS CONTRACT RESULTED, (b) "DIRECTOR" MEANS DIRECTOR, OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, OR ANY PERSON TO WHOM THE DIRECTOR DELEGATES AUTHORITY, (c) "EMPLOYER IDENTIFICATION NUMBER" MEANS THE PEDERAL SOCIAL SECURITY NUMBER USED ON THE EMPLOYER'S QUARTERLY PEDERAL TAX RETURN, U S TREASURY DEPARTMENT FORM 941, (d) "MINORITY" INCLUDES (0 BLACK (ALL PERSONS HAVING ORIGINS IN ANY OF THE BLACK AFRICAN RACIAL GROUPS NOT OF HISPANIC ORIGIN), AAA032AD (n) HISPANIC (ALL PERSONS OF MEXICAN, PUERTO RICAN, CUBAN, CENTRAL OR SOUTH AMERICAN OR OTHER SPANISH CULTURE OR ORIGIN, REGARDLESS OF RACE), (u0 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 0v) AMERICAN INDIAN OR ALASKAN NATIVE (ALL PERSONS HAVING ORIGINS IN ANY OF THE ORIGINAL PEOPLES OF NORTH AMERICA AND MAINTAINING IDENTIFIABLE TRIBAL AFFILIA- TIONS THROUGH MEMBERSHIP AND PARTICIPATION OR COMMUNITY IDENTIFICATION) (2) WHENEVER THE CONTRACTOR, OR ANY SUBCONTRACTOR AT ANY TIER, SUBCONTRACTS A PORTION OF THE WORK INVOLVING ANY CONSTRUCTION TRADE, IT SHALL PHYSICALLY INCLUDE IN EACH SUBCONTRACT IN EXCESS OF $10,000 THE PROVISIONS OF THESE SPECIFICATIONS AND THE NOTICE WHICH CONTAINS THE APPLICABLE GOALS FOR MINORITY AND FEMALE PARTICIPATION AND WHICH IS SET FORTH IN THE SOLICITATIONS FROM WHICH THIS CONTRACT RESULTED (3) IF THE CONTRACTOR IS PARTICIPATING (PURSUANT TO 41 CFR § 60-4 5) IN A HOMETOWN PLAN APPROVED BY THE US DEPARTMENT OF LABOR IN THE COVERED AREA, EITHER INDIVIDUAL- LY OR THROUGH AN ASSOCIATION, ITS AFFIRMATIVE ACTION OBLIGATIONS ON ALL WORK IN THE PLAN AREA (INCLUDING GOALS AND TIMETABLES) SHALL BE IN ACCORDANCE WITH THAT PLAN FOR THOSE TRADES WHICH HAVE UNIONS PARTICIPATING IN THE PLAN CONTRACTORS MUST BE ABLE TO DEMONSTRATE THEIR PARTICIPA- TION IN AND COMPLIANCE WITH THE PROVISIONS OF ANY SUCH HOMETOWN PLAN EACH CONTRACTOR OR SUBCONTRACTOR PARTICIPATING IN AN APPROVED PLAN IS INDIVIDUALLY REQUIRED TO COMPLY WITH ITS OBLIGATIONS UNDER THE EEO CLAUSE, AND TO MAKE A GOOD FAITH EFFORT TO ACHIEVE EACH GOAL UNDER THE PLAN IN EACH TRADE IN WHICH IT HAS EMPLOYEES THE OVERALL GOOD FAITH PERFORMANCE BY OTHER CONTRACTORS OR SUBCON- TRACTORS TOWARD A GOAL IN AN APPROVED PLAN DOES NOT EXCUSE ANY COVERED CONTRACTOR'S OR SUBCONTRACTOR'S FAILURE TO MAKE GOOD FAITH EFFORTS TO ACHIEVE THE PLAN GOALS AND TIMETABLES (4) THE CONTRACTOR SHALL IMPLEMENT THE SPECIFIC AFFIR- MATIVE ACTION STANDARDS PROVIDED IN PARAGRAPHS (7) (a) THROUGH (p) OF THESE SPECIFICATIONS THE GOALS SET FORTH IN AAA032AD THE SOLICITATION FROM WHICH THIS CONTRACT RESULTED ARE EX- PRESSED AS PERCENTAGES OF THE TOTAL HOURS OF EMPLOYMENT AND TRAINING OF MINORITY AND FEMALE UTILIZATION THE CONTRACTOR SHOULD REASONABLY BE ABLE TO ACHIEVE IN EACH CONSTRUCTION TRADE IN WHICH IT HAS EMPLOYEES IN THE COV- ERED AREA COVERED CONSTRUCTION CONTRACTORS PERFORMING CONSTRUCTION WORK IN GEOGRAPHICAL AREAS WHERE THEY DO NOT HAVE A FEDERAL OR FEDERALLY ASSISTED CONSTRUCTION CONTRACT SHALL APPLY THE MINORITY AND FEMALE GOALS ESTABLISHED FOR THE GEOGRAPHICAL AREA WHERE THE WORK IS BEING PERFORMED GOALS ARE PUBLISHED PERIODICALLY IN THE FEDERAL REGISTER IN NOTICE FORM, AND SUCH NOTICES MAY BE OBTAINED FROM ANY OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS OFFICE OR FROM FEDERAL PROCUREMENT CONTRACTING OFFICERS THE CONTRACTOR IS EXPECTED TO MAKE SUBSTANTIALLY UNIFORM PROGRESS TOWARD ITS GOAL IN EACH CRAFT DURING THE PERIOD SPECIFIED (5) NEITHER THE PROVISIONS OF ANY COLLECTIVE BARGAINING AGREEMENT, NOR THE FAILURE BY A UNION WITH WHOM THE CONTRACTOR HAS A COLLECTIVE BARGAINING AGREEMENT, TO REFER EITHER MINORITIES OR WOMEN SHALL EXCUSE THE CONTRAC- TOR'S OBLIGATIONS UNDER THESE SPECIFICATIONS, EXECUTIVE ORDER 11246, OR THE REGULATIONS PROMULGATED PURSUANT THERETO (6) IN ORDER FOR THE NONWORKING TRAINING HOURS OF APPRENTICES AND TRAINEES TO BE COUNTED IN MEETING THE GOALS, SUCH APPRENTICES AND TRAINEES MUST BE EMPLOYED BY THE CONTRACTOR DURING THE TRAINING PERIOD, AND THE CON- TRACTOR MUST HAVE MADE A COMMITMENT TO EMPLOY THE APPRENTICES AND TRAINEES AT THE COMPLETION OF THEIR TRAIN- ING, SUBJECT TO THE AVAILABILITY OF EMPLOYMENT OPPORTUNI- TIES TRAINEES MUST BE TRAINED PURSUANT TO TRAINING PRO- GRAMS APPROVED BY THE U S DEPARTMENT OF LABOR (7) THE CONTRACTOR SHALL TAKE SPECIFIC AFFIRMATIVE ACTIONS TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY THE EVALUATION OF THE CONTRACTOR'S COMPLIANCE WITH THESE SPECIFICATIONS SHALL BE BASED UPON ITS EFFORT TO ACHIEVE MAXIMUM RESULTS FROM ITS ACTIONS THE CONTRACTOR SHALL DOCUMENT THESE EFFORTS FULLY, AND SHALL IMPLEMENT AFFIR- MATIVE ACTION STEPS AT LEAST AS EXTENSIVE AS THE FOLLOWING (a) ENSURE AND MAINTAIN A WORKING ENVIRONMENT FREE OF HARASSMENT, INTIMIDATION, AND COERCION AT ALL SITES, AND IN ALL FACILITIES AT WHICH THE CONTRACTOR'S EMPLOYEES ARE AAA032AD ASSIGNED TO WORK THE CONTRACTOR, WHERE POSSIBLE, WILL ASSIGN TWO OR MORE WOMEN TO EACH CONSTRUCTION PROJECT THE CONTRACTOR SHALL SPECIFICALLY ENSURE THAT ALL FOREMEN, SUPERINTENDENTS, AND OTHER ON-SITE SUPERVISORY PERSONNEL ARE AWARE OF AND CARRY OUT THE CONTRACTOR'S OBLIGATION TO MAINTAIN SUCH A WORKING ENVIRONMENT, WITH SPECIFIC ATTEN- TION TO MINORITY OR FEMALE INDIVIDUALS WORKING AT SUCH SITES OR IN SUCH FACILITIES (b) ESTABLISH AND MAINTAIN A CURRENT LIST OF MINORI- TY AND FEMALE RECRUITMENT SOURCES, PROVIDE WRITTEN NOTICE TO MINORITY AND FEMALE RECRUITMENT SOURCES AND TO COMMU- NITY ORGANIZATIONS WHEN THE CONTRACTOR OR ITS UNIONS HAVE EMPLOYMENT OPPORTUNITIES AVAILABLE, AND MAINTAIN A RECORD OF THE ORGANIZATIONS' RESPONSES (c) MAINTAIN A CURRENT FILE OF THE NAMES, ADDRESSES AND TELEPHONE NUMBERS OF EACH MINORITY AND FEMALE OFF- THE-STREET APPLICANT AND MINORITY OR FEMALE REFERRAL FROM A UNION, A RECRUITMENT SOURCE OR COMMUNITY ORGANIZATION AND OF WHAT ACTION WAS TAKEN WITH RESPECT TO EACH SUCH INDIVIDUAL IF SUCH INDIVIDUAL WAS SENT TO THE UNION HIRING HALL FOR REFERRAL AND WAS NOT REFERRED BACK TO THE CONTRACTOR BY THE UNION OR, IF REFERRED, NOT EMPLOYED BY THE CONTRACTOR, THIS SHALL BE DOCUMENTED IN THE FILE WITH THE REASON THEREFOR, ALONG WITH WHATEVER ADDITIONAL ACTIONS THE CONTRACTOR MAY HAVE TAKEN (d) PROVIDE IMMEDIATE WRITTEN NOTIFICATION TO THE DIRECTOR WHEN THE UNION OR UNIONS WITH WHICH THE CONTRAC- TOR HAS A COLLECTIVE BARGAINING AGREEMENT HAS NOT RE- FERRED TO THE CONTRACTOR A MINORITY PERSON OR WOMAN SENT BY THE CONTRACTOR, OR WHEN THE CONTRACTOR HAS OTHER INFORMATION THAT THE UNION REFERRAL PROCESS HAS IMPEDED THE CONTRACTOR'S EFFORTS TO MEET ITS OBLIGATIONS (¢) DEVELOP ON-THE-JOB TRAINING OPPORTUNITIES AND/OR PARTICIPATE IN TRAINING PROGRAMS FOR THE AREA WHICH EXPRESS- LY INCLUDE MINORITIES AND WOMEN, INCLUDING UPGRADING PROGRAMS AND APPRENTICESI-ma AND TRAINEE PROGRAMS RELEVANT TO THE CONTRACTOR'S EMPLOYMENT NEEDS, ESPECIALLY THOSE PROGRAMS FUNDED OR APPROVED BY THE DEPARTMENT OF LABOR THE CONTRACTOR SHALL PROVIDE NOTICE OF THESE PROGRAMS TO THE SOURCES COMPILED UNDER (7)(b) ABOVE (f) DISSEMINATE THE CONTRACTOR'S EEO POLICY BY PROVIDING NOTICE OF THE POLICY TO UNIONS AND TRAINING AAA032AD PROGRAMS AND REQUESTING THEIR COOPERATION IN ASSISTING THE CONTRACTOR IN MEETING ITS EEO OBLIGATIONS, BY INCLUDING IT IN ANY POLICY MANUAL AND COLLECTIVE BARGAINING AGREEMENT, BY PUBLICIZING IT IN THE COMPANY NEWSPAPER, ANNUAL REPORT, ETC , BY SPECIFIC REVIEW OF THE POLICY WITH ALL MANAGEMENT PERSONNEL AND WITH ALL MINORITY AND FEMALE EMPLOYEES AT LEAST ONCE A YEAR, AND BY POSTING THE COMPANY EEO POLICY ON BULLETIN BOARDS ACCESSIBLE TO ALL EMPLOYEES AT EACH LOCATION WHERE CONSTRUCTION WORK IS PERFORMED (g) REVIEW, AT LEAST ANNUALLY, THE COMPANY'S EEO POLICY AND AFFIRMATIVE ACTION OBLIGATIONS UNDER THESE SPECIFICATIONS WITH ALL EMPLOYEES HAVING RESPONSIBILITY FOR HIRING, ASSIGNMENT, LAYOFF, TERMINATION OR OTHER EMPLOY- MENT DECISIONS INCLUDING SPECIFIC REVIEW OF THESE ITEMS WITH ON-SITE SUPERVISORY PERSONNEL SUCH AS SUPERINTENDENTS, GENERAL FOREMAN, ETC , PRIOR TO THE INITIATION OF CONSTRUC- TION WORK AT ANY lOB SITE A WRITTEN RECORD SHALL BE MADE AND MAINTAINED IDENTIFYING THE TIME AND PLACE OF THESE MEETINGS, PERSONS ATTENDING, SUBJECT MATTER DISCUSSED, AND DISPOSITION OF THE SUBJECT MATTER (h) DISSEMINATE THE CONTRACTOR'S EEO POLICY EXTER- NALLY BY INCLUDING IT IN ANY ADVERTISING IN THE NEWS MEDIA, SPECIFICALLY INCLUDING MINORITY AND FEMALE NEWS MEDIA, AND PROVIDING WRITTEN NOTIFICATION TO AND DISCUSSING THE CONTRACTOR'S EEO POLICY WITH OTHER CONTRACTORS AND SUBCONTRACTORS WITH WHOM THE CONTRACTOR DOES OR ANTICI- PATES DOING BUSINESS 0) DIRECT RECRUITMENT EFFORTS, BOTH ORAL AND WRITTEN, TO MINORITY, FEMALE AND COMMUNITY ORGANIZATIONS, TO SCHOOLS WITH MINORITY AND FEMALE STUDENTS AND TO MINORITY AND FEMALE RECRUITMENT AND TRAINING ORGANIZA- TIONS SERVING THE CONTRACTOR'S RECRUITMENT AREA AND EMPLOYMENT NEEDS NOT LATER THAN ONE MONTH PRIOR TO THE DATE FOR THE ACCEPTANCE OF APPLICATIONS FOR APPRENTICESHIP OR OTHER TRAINING BY ANY RECRUITMENT SOURCE, THE CONTRAC- TOR SHALL SEND WRITTEN NOTICE TO ORGANIZATIONS SUCH AS THE ABOVE, DESCRIBING THE OPENINGS, SCREENING PROCEDURES, AND TESTS TO BE USED IN THE SELECTION PROCESS (1) ENCOURAGE PRESENT MINORITY AND FEMALE EMPLOY- EES TO RECRUIT OTHER MINORITY PERSONS AND WOMEN AND, WHERE REASONABLE, PROVIDE AFTER SCHOOL, SUMMER AND VACATION EMPLOYMENT TO MINORITY AND FEMALE YOUTH, BOTH AAA032AD ON THE SITE AND IN OTHER AREAS OF THE CONTRACTOR'S WORK FORCE (k) VALIDATE ALL TESTS AND OTHER SELECTION REQUIRE- MENTS WHERE THERE IS AN OBLIGATION TO DO SO UNDER 41 C F R PART 60-3 (1) CONDUCT, AT LEAST ANNUALLY, AN INVENTORY AND EVALUATION AT LEAST OF ALL MINORITY AND FEMALE PERSONNEL FOR PROMOTIONAL OPPORTUNITIES AND ENCOURAGE THESE EMPLOY- EES TO SEEK OR TO PREPARE FOR, THROUGH APPROPRIATE TRAINING, ETC , SUCH OPPORTUNITIES (m) ENSURE THAT SENIORITY PRACTICES, JOB CLASSIFICA- TIONS, WORK ASSIGNMENTS AND OTHER PERSONNEL PRACTICES DO NOT HAVE A DISCRIMINATORY EFFECT BY CONTINUALLY MONITOR- ING ALL PERSONNEL AND EMPLOYMENT RELATED ACTIVITIES TO ENSURE THAT THE EEO POLICY AND THE CONTRACTOR'S OBLIGA- TIONS UNDER THESE SPECIFICATIONS ARE BEING CARRIED OUT (n) ENSURE THAT ALL FACILITIES AND COMPANY ACTIVI- TIES ARE NONSEGREGATED EXCEPT THAT SEPARATE OR SINGLE-USER TOILET AND NECESSARY CHANGING FACILITIES SHALL BE PROVIDED TO ASSURE PRIVACY BETWEEN SEXES (o) DOCUMENT AND MAINTAIN A RECORD OF ALL SOLICITA- TIONS OF OFFERS FOR SUBCONTRACTS FROM MINORITY AND FEMALE CONSTRUCTION CONTRACTORS AND SUPPLIERS, INCLUDING CIRCULA- TION OF SOLICITATIONS TO MINORITY AND FEMALE CONTRACTOR ASSOCIATIONS AND OTHER BUSINESS ASSOCIATIONS (p) CONDUCT A REVIEW, AT LEAST ANNUALLY, OF ALL SUPERVISORS' ADHERENCE TO AND PERFORMANCE UNDER THE CONTRACTOR'S EEO POLICIES AND AFFIRMATIVE ACTION OBLIGA- TIONS (8) CONTRACTORS ARE ENCOURAGED TO PARTICIPATE IN VOLUNTARY ASSOCIATIONS THAT ASSIST IN FULFILLING ONE OR MORE OF THEIR AFFIRMATIVE ACTION OBLIGATIONS SET FORTH IN PARAGRAPHS (7) (a) THROUGH (p) THE EFFORTS OF A CONTRACTOR ASSOCIATION, JOINT CONTRACTOR-UNION, CONTRACTOR-COMMUNI- TY, OR OTHER SIMILAR GROUP OF WHICH THE CONTRACTOR IS A MEMBER AND PARTICIPANT, MAY BE ASSERTED AS FULFILLING ANY ONE OR MORE OF ITS OBLIGATIONS UNDER PARAGRAPHS (7) (a) THROUGH (p) OF THESE SPECIFICATIONS, PROVIDED THAT THE CONTRACTOR ACTIVELY PARTICIPATES IN THE GROUP, MAKES EVERY EFFORT TO ASSURE THAT THE GROUP HAS A POSITIVE IMPACT ON THE AAA032AD EMPLOYMENT OF MINORITIES AND WOMEN IN THE INDUSTRY, ENSURES THAT THE CONCRETE BENEFITS OF THE PROGRAM ARE REFLECTED IN THE CONTRACTOR'S MINORITY AND FEMALE WORK FORCE PARTICIPATION, MAKES A GOOD FAITH EFFORT TO MEET ITS INDIVIDUAL GOALS AND TIMETABLES, AND CAN PROVIDE ACCESS TO DOCUMENTATION THAT DEMONSTRATES THE EFFECTIVENESS OF ACTIONS TAKEN ON BEHALF OF THE CONTRACTOR THE OBLIGATION TO COMPLY, HOWEVER, IS THE CONTRACTOR'S AND FAILURE OF SUCH A GROUP TO FULFILL AN OBLIGATION SHALL NOT BE A DEFENSE FOR THE CONTRACTOR'S NONCOMPLIANCE (9) A SINGLE GOAL FOR MINORITIES AND A SEPARATE SINGLE GOAL FOR WOMEN HAVE BEEN ESTABLISHED THE CONTRACTOR, HOWEVER, IS REQUIRED TO PROVIDE EQUAL EMPLOYMENT OPPORTU- NITY AND TO TAKE AFFIRMATIVE ACTION FOR ALL MINORITY GROUPS, BOTH MALE AND FEMALE, AND ALL WOMEN, BOTH MINORI- TY AND NON-MINORITY CONSEQUENTLY, THE CONTRACTOR MAY BE IN VIOLATION OF THE EXECUTIVE ORDER IF A PARTICULAR GROUP IS EMPLOYED IN A SUBSTANTIALLY DISPARATE MANNER (EVEN THOUGH THE CONTRACTOR HAS ACHIEVED ITS GOAL FOR WOMEN GENERALLY, THE CONTRACTOR MAY BE IN VIOLATION OF THE EXECUTIVE ORDER IF A SPECIFIC MINORITY GROUP OF WOMEN IS UNDERUTILIZED) (10) THE CONTRACTOR SHALL NOT USE THE GOALS AND TIMETA- BLES OR AFFIRMATIVE ACTION STANDARDS TO DISCRIMINATE AGAINST ANY PERSON BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN (11) THE CONTRACTOR SHALL NOT ENTER INTO ANY SUBCON- TRACT WITH ANY PERSON OR FIRM DEBARRED FROM GOVERNMENT CONTRACTS PURSUANT TO EXECUTIVE ORDER 11246 (12) THE CONTRACTOR SHALL CARRY OUT SUCH SANCTIONS AND PENALTIES FOR VIOLATION OF THESE SPECIFICATIONS AND OF THE EQUAL OPPORTUNITY CLAUSE, INCLUDING SUSPENSION, TERMINA- TION AND CANCELLATION OF EXISTING SUBCONTRACTS AS MAY BE IMPOSED OR ORDERED PURSUANT TO EXECUTIVE ORDER 11246, AS AMENDED, AND ITS IMPLEMENTING REGULATIONS, BY THE OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS ANY CONTRACTOR WHO FAILS TO CARRY OUT SUCH SANCTIONS AND PENALTIES SHALL BE IN VIOLATION OF THESE SPECIFICATIONS AND EXECUTIVE ORDER 11246, AS AMENDED (13) THE CONTRACTOR, IN FULFILLING ITS OBLIGATIONS UNDER THESE SPECIFICATIONS, SHALL IMPLEMENT SPECIFIC AFFIRMATIVE ACTION STEPS, AT LEAST AS EXTENSIVE AS THOSE STANDARDS PRESCRIBED IN PARAGRAPH (7) OF THESE SPECIFICATIONS, SO AS TO AAA032AD ACHIEVE MAXIMUM RESULTS FROM ITS EFFORTS TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY IF THE CONTRACTOR FAILS TO COMPLY WITH THE REQUIREMENTS OF THE EXECUTIVE ORDER, THE IMPLE- MENTING REGULATIONS, OR THESE SPECIFICATIONS, THE DIRECTOR SHALL PROCEED IN ACCORDANCE WITH 41 C F R § 60-4 8 (14) THE CONTRACTOR SHALL DESIGNATE A RESPONSIBLE OFFICIAL TO MONITOR ALL EMPLOYMENT RELATED ACTIVITY TO ENSURE THAT THE COMPANY EEO POLICY IS BEING CARRIED OUT, TO SUBMIT REPORTS RELATING TO THE PROVISIONS HEREOF AS MAY BE REQUIRED BY THE GOVERNMENT AND TO KEEP RECORDS RECORDS SHALL AT LEAST INCLUDE FOR EACH EMPLOYEE THE NAME, AD- DRESS, TELEPHONE NUMBERS, CONSTRUCTION TRADE, UNION AFFILI- ATION IF ANY, EMPLOYEE IDENTIFICATION NUMBER WHEN ASSIGNED, SOCIAL SECURITY NUMBER, RACE, SEX, STATUS (E G, MECHANIC, APPRENTICE TRAINEE, HELPER, OR LABORER), DATES OF CHANGES IN STATUS, HOURS WORKED PER WEEK IN THE INDICATED TRADE, RATE OF PAY, AND LOCATIONS AT WHICH THE WORK WAS PERFORMED RECORDS SHALL BE MAINTAINED IN AN EASILY UNDERSTANDABLE AND RETRIEVABLE FORM, HOWEVER, TO THE EXTENT THAT EXISTING RECORDS SATISFY THIS REQUIREMENT, CONTRACTORS SHALL NOT BE REQUIRED TO MAINTAIN SEPARATE RECORDS (15) NOTHING HEREIN PROVIDED SHALL BE CONSTRUED AS A LIMITATION UPON THE APPLICATION OF OTHER LAWS THAT ESTAB- LISH DIFFERENT STANDARDS OF COMPLIANCE OR UPON THE APPLICA- TION OF REQUIREMENTS FOR THE HIRING OF LOCAL OR OTHER AREA RESIDENTS (E G , THOSE UNDER THE PUBLIC WORKS EMPLOYMENT ACT OF 1977 AND THE COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM) 3 Notice The Agency hereby agrees that it will ensure that the notice set forth below shall be included m, and shall be a part of, all solicitations for offers and bids on all Federal and federally assisted construction contracts or subcontracts tn excess of $10,000 to be performed in geograplucal areas designated by the D~rector, 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 ! 1246) (1) THE OFFEROR'S OR BIDDER'S ATTENTION IS CALLED TO THE "EQUAL OPPORTUNITY CLAUSE" AND THE "STANDARD FEDERAL EQUAL EMPLOYMENT SPECIFICATIONS" SET FORTH HEREIN (2) (a) THE GOALS AND THE TIMETABLES FOR MINORITY AND FEMALE PARTICIPATION, EXPRESSED IN PERCENTAGE TERMS FOR THE AAA032AD CONTRACTOR'S AGGREGATE WORK FORCE IN EACH TRADE ON ALL CONSTRUCTION WORK IN THE COVERED AREA, ARE AS FOLLOWS GOALS FOR MINORITY GOALS FOR FEMALE PARTICIPATION IN PARTICIPATION IN EACH TRADE EACH TRADE INSERT GOALS FOR INSERT GOALS FOR EACH YEAR EACH YEAR (b) THESE GOALS ARE APPLICABLE TO ALL THE CONTRAC- TOR'S CONSTRUCTION WORK (WHETHER OR NOT IT IS FEDERAL OR FEDERALLY ASSISTED) PERFORMED IN THE COVERED AREA IF THE CONTRACTOR PERFORMS CONSTRUCTION WORK IN A GEOGRAPHICAL AREA LOCATED OUTSIDE OF THE COVERED AREA, IT SHALL APPLY THE GOALS ESTABLISHED FOR SUCH GEOGRAPHICAL AREA WHERE THE WORK IS ACTUALLY PERFORMED WITH REGARD TO THIS SECOND AREA, THE CONTRACTOR ALSO IS SUBJECT TO THE GOALS FOR BOTH ITS FEDERALLY INVOLVED AND NONFEDERALLY INVOLVED CONSTRUCTION (c) THE CONTRACTOR'S COMPLIANCE WITH THE EXECU- TIVE ORDER AND THE REGULATIONS AT 41 C F R PART 60-4 SHALL BE BASED ON ITS IMPLEMENTATION OF THE EQUAL OPPORTUNITY CLAUSE, SPECIFIC AFFIRMATIVE ACTION OBLIGATIONS REQUIRED BY THE SPECIFICATIONS SET FORTH AT 41 C F R § 60-4 3(a), AND ITS EFFORTS TO MEET THE GOALS THE HOURS OF MINORITY AND FEMALE EMPLOYMENT AND TRAINING MUST BE SUBSTANTIALLY UNIFORM THROUGHOUT THE LENGTH OF THE CONTRACT, AND IN EACH TRADE, AND THE CONTRACTOR SHALL MAKE A GOOD FAITH EFFORT TO EMPLOY MINORITIES AND WOMEN EVENLY ON EACH OF ITS PROJECTS THE TRANSFER OF MINORITY OR FEMALE EMPLOYEES OR TRAINEES FROM CONTRACTOR TO CONTRACTOR OR FROM PROJECT TO PROJECT FOR THE SOLE PURPOSE OF MEETING THE CONTRACTOR'S GOALS SHALL BE A VIOLATION OF THE CONTRACT, THE EXECUTIVE ORDER, AND THE REGULATIONS IN AT C F R PART 60-4 COMPLIANCE WITH THE GOALS WILL BE MEASURED AGAINST THE TOTAL WORK HOURS PERFORMED (3) THE CONTRACTOR SHALL PROVIDE WRITTEN NOTIFICATION TO THE DIRECTOR OF THE OFFICE OF FEDERAL CONTRACT COMPLI- ANCE PROGRAMS WITHIN 10 WORKING DAYS OF AWARD OF ANY CONSTRUCTION SUBCONTRACT IN EXCESS OF $10,000 AT ANY TIER FOR CONSTRUCTION WORK UNDER THE CONTRACT RESULTING FROM THIS SOLICITATION THE NOTIFICATION SHALL LIST THE NAME, ADDRESS AND TELEPHONE NUMBER OF THE SUBCONTRACTOR, EMPLOYER AAA032AD IDENTIFICATION NUMBER OF THE SUBCONTRACTOR, ESTIMATED DOLLAR AMOUNT OF THE SUBCONTRACT, ESTIMATED STARTING AND COMPLETION DATES OF THE SUBCONTRACT, AND THE GEOGRAPHICAL AREA IN WHICH THE SUBCONTRACT IS TO BE PERFORMED (4) AS USED IN THIS NOTICE, AND IN THE CONTRACT RESULTING FROM THIS SOLICITATION, THE "COVERED AREA" IS (INSERT DESCRIP- TION OF THE GEOGRAPHICAL AREAS WHERE THE CONTRACT IS TO BE PERFORMED, GIVING THE STATE, COUNTY AND CITY, IF ANY) 4 Acconunodattons for the Phvstcallv HandtcaDDed UMTA asststed constmctton, destgns, and alterattons shall be undertaken ~n accordance w~th and meet the reqmrements of the provtstons of General Services AdmLmstratton (GSA) regulattons set forth at 41 C F R Subpart 101-19 6, unless an exceptton ~s granted tn wrltmg by UMTA or a waiver ts granted m writing by GSA 5 Contract Security The Agency shall follow the requtrements of 49 C F R § 18 36(h) or OMB Ctrcular A-110, Attachment B, as apphcable, and Federal (UMTA) gmdelmes w~th regard to bxd guarantees and bondmg requtrements 6 St~,ns The Agency shall cause to be erected at the stte of construction, and matntatned durmg constructton, s~gns saUsfactory to the Department of Transportation ~dentffy~ng the ProJect and md~catmg that the Government ts partxclpatmg m 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 regulattons set forth at 29 C F R § 1926, no laborer or mechamc worlong on a construction contract shall be reqmred to work In surroundings or under working condttlons that are unsamtary, hazardous, or dangerous to h~s or her health and safety as determined under construction and health standards promulgated by the Secretary of Labor 8 l~ The Agency shall include in all contracts for construction a clause ,provtdmg for hqutdated damages, where appropriate Ltqu~dated damages clauses are appropriate ff the parties may reasonably expect to suffer damages 0ncreased costs on the ProJect revolved) from the late completton of the constmctton and the extent or amount of such damages would be difficult or lmposstble to determine The assessment for damages shall be at a specific rate per day for each day of overrun m contract time, and the rate must be specified ~n the tlurd party contract Any hqmdated damages recovered shall be credxted to the Project account revolved unless the Government permits otherwtse V Pursuant to regulatlons set forth at 29 C F R Part 5, the following prows~ons shall be ~ncorporated in each construction contract of $25,000 let by the Agency m carrying out the ProJect 1 MINIMUM WAOES AAA032AD (a) ALL LABORERS AND MECHANICS EMPLOYED OR WORKING UPON THE SITE OF THE WORK (OR UNDER THE UNITED STATES HOUSING ACT OF 1937 OR UNDER THE HOUSING ACT OF 1949 IN THE CONSTRUCTION OR DEVELOPMENT OF THE PROJECT), WILL BE PAID UNCONDITIONALLY AND NOT LESS OFTEN THAN ONCE A WEEK, AND WITHOUT SUBSEQUENT DEDUCTION OR REBATE ON ANY ACCOUNT (EXCEPT SUCH PAYROLL DEDUCTIONS AS ARE PERMITTED BY REGULATIONS ISSUED BY THE SECRETARY OF LABOR UNDER THE COPELAND ACT, 29 C F R PART 3), THE FULL AMOUNT OF WAGES AND BONA FIDE FRINGE BENEFITS (OR CASH EQUIVALENTS THEREOF) DUE AT THE TIME OF PAYMENT COMPUTED AT RATES NOT LESS THAN THOSE CONTAINED IN THE WAGE DETERMINATION OF THE SECRE- TARY OF LABOR WHICH IS ATTACHED HERETO AND MADE A PART HEREOF, REGARDLESS OF ANY CONTRACTUAL RELATIONSHIP WHICH MAY BE ALLEGED TO EXIST BETWEEN THE CONTRACTOR AND SUCH LABORERS AND MECHANICS CONTRIBUTIONS MADE OR COSTS REASONABLY ANTICIPATED FOR BONA FIDE FRINGE BENEFITS UNDER SECTION l(b) (2) OF THE DAVIS-BACON ACT ON BEHALF OF LABORERS OR MECHANICS ARE CONSIDERED WAGES PAID TO SUCH LABORERS OR MECHANICS, SUBJECT TO THE PROVISIONS OF 29 C F R § 5 5(a)(1)0v), ALSO, REGULAR CONTRIBUTIONS MADE OR COSTS INCURRED FOR MORE THAN A WEEKLY PERIOD (BUT NOT LESS OFTEN THAN QUAR- TERLY) UNDER PLANS, FUNDS, OR PROGRAMS THAT COVER THE PARTICULAR WEEKLY PERIOD, ARE DEEMED TO BE CONSTRUCTIVELY MADE OR INCURRED DURING SUCH WEEKLY PERIOD SUCH LABORERS AND MECHANICS SHALL BE PAID THE APPROPRIATE WAGE RATE AND FRINGE BENEFITS ON THE WAGE DETERMINATION FOR THE CLASSIFI- CATION OF WORK ACTUALLY PERFORMED, WITHOUT REGARD TO SKILL, EXCEPT AS PROVIDED AT 29 C F R § 5 5(a)(4), LABORERS OR MECHANICS PERFORMING WORK IN MORE THAN ONE CLASSIFICATION MAY BE COMPENSATED AT THE RATE SPECIFIED FOR EACH CLASSIFI- CATION FOR THE TIME ACTUALLY WORKED THEREIN PROVIDED, THAT THE EMPLOYER'S PAYROLL RECORDS ACCURATELY SET FORTH THE TIME SPENT IN EACH CLASSIFICATION IN WHICH WORK IS PERFORMED THE WAGE DETERMINATION (INCLUDING ANY ADDI- TIONAL CLASSIFICATION AND WAGE RATES CONFORMED UNDER 29 C F R § 5 5(a) (1) (n) AND THE DAVIS-BACON POSTER (WH-1321) SHALL BE POSTED AT ALL TIMES BY THE CONTRACTOR AND ITS SUBCON- TRACTORS AT THE SITE OF THE WORK IN A PROMINENT AND ACCES- SIBLE PLACE WHERE IT CAN BE EASILY SEEN BY THE WORKERS (b) 1 THE CONTRACTING OFFICER SHALL REQUIRE THAT ANY CLASS OF LABORERS OR MECHANICS THAT IS NOT LISTED IN THE WAGE DETERMINATION AND THAT IS TO BE EMPLOYED UNDER THE CONTRACT SHALL BE CLASSIFIED IN CONFORMANCE WITH THE WAGE DETERMINATION THE CONTRACTING OFFICER SHALL APPROVE AN AAA032AD ADDITIONAL CLASSIFICATION AND WAGE RATE AND FRINGE BENEFITS THEREFOR ONLY WHEN THE FOLLOWING CRITERIA HAVE BEEN MET a THE WORK TO BE PERFORMED BY THE CLASSIFICA- TION REQUESTED IS NOT PERFORMED BY A CLASSIFICATION IN THE WAGE DETERMINATION, AND b THE CLASSIFICATION IS UTILIZED IN THE AREA BY THE CONSTRUCTION INDUSTRY, AND c THE PROPOSED WAGE RATE, INCLUDING ANY BONA FIDE FRINGE BENEFITS, BEARS A REASONABLE RELATIONSHIP TO THE WAGE RATES CONTAINED IN THE WAGE DETERMINATION 2 IF THE CONTRACTOR AND THE LABORERS AND MECHANICS TO BE EMPLOYED IN THE CLASSIFICATION (IF KNOWN), OR THEIR REPRESENTATIVES, AND THE CONTRACTING OFFICER AGREE ON THE CLASSIFICATION AND WAGE RATE (INCLUDING THE AMOUNT DESIGNATED FOR FRINGE BENEFITS WHERE APPROPRIATE), A REPORT OF THE ACTION TAKEN SHALL BE SENT BY THE CONTRACTING OFFICER TO THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, EMPLOYMENT STANDARDS ADMINISTRATION, U S DEPARTMENT OF LABOR, WASHINGTON, D C 20210 THE ADMINISTRATOR, OR AN AUTHORIZED REPRESENTATIVE, WILL APPROVE, MODIFY, OR DISAPPROVE EVERY ADDITIONAL CLASSIFICATION ACTION WITHIN 30 DAYS OF RECEIPT AND SO ADVISE THE CONTRACTING OFFICER OR WILL NOTIFY THE CONTRACTING OFFICER WITHIN THE 30-DAY PERIOD THAT ADDITIONAL TIME IS NECESSARY 3 IN THE EVENT THE CONTRACTOR, LABORERS OR ME- CHANICS TO BE EMPLOYED IN THE CLASSIFICATION OR THEIR REPRESENTATIVES, AND THE CONTRACTING OFFICER DO NOT AGREE ON THE PROPOSED CLASSIFICATION AND WAGE RATE (INCLUDING THE AMOUNT DESIGNATED FOR FRINGE BENEFITS, WHERE APPROPRIATE), THE CONTRACTING OFFICER SHALL REFER THE QUESTIONS INCLUDING THE VIEWS OF ALL INTERESTED PARTIES AND THE RECOMMENDATION OF THE CONTRACTING OFFICER, TO THE ADMINISTRATOR FOR DETERMINATION THE ADMINISTRATOR, OR AN AUTHORIZED REPRESENTATIVE, WILL ISSUE A DETERMINATION WITHIN 30 DAYS OF RECEIPT AND SO ADVISE THE CONTRACTING OFFICER OR WILL NOTIFY THE CONTRACTING OFFICER WITHIN THE 30-DAY PERIOD THAT ADDITIONAL TIME IS NECESSARY 4 THE WAGE RATE (INCLUDING FRINGE BENEFITS WHERE APPROPRIATE) DETERMINED PURSUANT TO 29 C F R § 5 5(a) 0) (1) (B) OR 29 C F R § 5 5(a) 0) (1) (C), SHALL BE PAID TO ALL WORKERS PERFORMING WORK IN THE CLASSIFICATION UNDER THIS CONTRACT AAA032AD FROM THE FIRST DAY ON WHICH WORK IS PERFORMED IN THE CLASSIFICATION (¢) WHENEVER THE MINIMUM WAGE RATE PRESCRIBED IN THE CONTRACT FOR A CLASS OF LABORERS OR MECHANICS INCLUDES A FRINGE BENEFIT WHICH IS NOT EXPRESSED AS AN HOURLY RATE, THE CONTRACTOR SHALL EITHER PAY THE BENEFIT AS STATED IN THE WAGE DETERMINATION OR SHALL PAY ANOTHER BONA FIDE FRINGE BENEFIT OR AN HOURLY CASH EQUIVALENT THEREOF (d) IF THE CONTRACTOR DOES NOT MAKE PAYMENTS TO A TRUSTEE OR OTHER THIRD PERSON, THE CONTRACTOR MAY CONSIDER AS PART OF THE WAGES OF ANY LABORER OR MECHANIC THE AMOUNT OF ANY COSTS REASONABLY ANTICIPATED IN PROVIDING BONA FIDE FRINGE BENEFITS UNDER A PLAN OR PROGRAM, PROVID- ED, THAT THE SECRETARY OF LABOR HAS FOUND, UPON THE WRITTEN REQUEST OF THE CONTRACTOR, THAT THE APPLICABLE STANDARDS OF THE DAVIS-BACON ACT HAVE BEEN MET THE SECRETARY OF LABOR MAY REQUIRE THE CONTRACTOR TO SET ASIDE IN A SEPARATE ACCOUNT ASSETS FOR THE MEETING OF OBLIGATIONS UNDER THE PLAN OR PROGRAM 2 WITHHOLDING UMTA SHALL UPON ITS OWN ACTION OR UPON WRITTEN REQUEST OF AN AUTHORIZED REPRESENTATIVE OF THE DEPARTMENT OF LABOR WITHHOLD OR CAUSE TO BE WITHHELD FROM THE CONTRACTOR, UNDER THIS AGREEMENT OR ANY OTHER FEDERAL CONTRACT WITH THE SAME AGENCY OR ANY OTHER FEDERALLY-ASSISTED CONTRACT SUBJECT TO DAVIS-BACON PREVAIL- ING WAGE REQUIREMENTS, WHICH IS WITHHELD BY THE SAME PRIME CONTRACTOR, SO MUCH OF THE ACCRUED PAYMENTS OR ADVANCES AS MAY BE CONSIDERED NECESSARY TO PAY LABORERS AND MECHANICS, INCLUDING APPRENTICES, TRAINEES, AND HELPERS, EMPLOYED BY THE CONTRACTOR OR ANY SUBCONTRACTOR THE FULL AMOUNT OF WAGES REQUIRED BY THE CONTRACT IN THE EVENT OF FAILURE TO PAY ANY LABORER OR MECHANIC, INCLUDING ANY APPRENTICE, TRAINEE, OR HELPER, EMPLOYED OR WORKING ON THE SITE OF THE WORK (OR UNDER THE UNITED STATES HOUSING ACT OF 1937 OR UNDER THE HOUSING ACT OF 1949 IN THE CONSTRUCTION OR DEVELOPMENT OF THE PROJECT), ALL OR PART OF THE WAGES REQUIRED BY THE CONTRACT, UMTA MAY, AFTER WRITTEN NOTICE TO THE CONTRACTOR, SPONSOR, APPLICANT, OR OWNER, TAKE SUCH ACTION AS MAY BE NECESSARY TO CAUSE THE SUSPENSION OF ANY FURTHER PAYMENT, ADVANCE, OR GUARANTEE OF FUNDS UNTIL SUCH VIOLATIONS HAVE CEASED 3 PAYRO!.I ~q AND BASIC RECORDS (a) PAYROLLS AND BASIC RECORDS RELATING THERETO SHALL BE MAINTAINED BY THE AAA032AD CONTRACTOR DURING THE COURSE OF THE WORK AND PRESERVED FOR A PERIOD OF THREE YEARS THEREAFTER FOR ALL LABORERS AND MECHANICS WORKING AT THE SITE OF THE WORK (OR UNDER THE UNITED STATES HOUSING ACT OF 1937, OR UNDER THE HOUSING ACT OF 1949, IN THE CONSTRUCTION OR DEVELOPMENT OF THE PROSECT) SUCH RECORDS SHALL CONTAIN THE NAME, ADDRESS, AND SOCIAL SECURITY NUMBER OF EACH SUCH WORKER, HIS OR HER CORRECT CLASSIFICATION, HOURLY RATES OF WAGES PAID (INCLUDING RATES OF CONTRIBUTIONS OR COSTS ANTICIPATED FOR BONA FIDE FRINGE BENEFITS OR CASH EQUIVALENTS THEREOF OF THE TYPES DESCRIBED IN SECTION l(b) (2) (B) OF THE DAVIS-BACON ACT), DAILY AND WEEKLY NUMBER OF HOURS WORKED, DEDUCTIONS MADE AND ACTUAL WAGES PAID WHENEVER THE SECRETARY OF LABOR HAS FOUND UNDER 29 C F R § 5 5(a) (1) (iv) THAT THE WAGES OF ANY LABORER OR MECHANIC INCLUDE THE AMOUNT OF ANY COSTS REASONABLY ANTICIPATED IN PROVIDING BENEFITS UNDER A PLAN OR PROGRAM DESCRIBED IN SECTION l(b) (2) (B) OF THE DAVIS-BACON ACT, THE CONTRACTOR SHALL MAINTAIN RECORDS WHICH SHOW THAT THE COMMITMENT TO PROVIDE SUCH BENEFITS IS ENFORCE- ABLE, THAT THE PLAN OR PROGRAM IS FINANCIALLY RESPONSIBLE, AND THAT THE PLAN OR PROGRAM HAS BEEN COMMUNICATED IN WRITING TO THE LABORERS OR MECHANICS AFFECTED, AND RECORDS WHICH SHOW THE COSTS ANTICIPATED OR THE ACTUAL COSTS INCURRED IN PROVIDING SUCH BENEFITS CONTRACTORS EMPLOYING APPRENTICES OR TRAINEES UNDER APPROVED PROGRAMS SHALL MAINTAIN WRITTEN EVIDENCE OF THE REGISTRATION OF APPREN- TICESHIP PROGRAMS AND CERTIFICATION OF TRAINEE PROGRAMS, THE REGISTRATION OF THE APPRENTICES AND TRAINEES, AND THE RATIOS AND WAGE RATES PRESCRIBED IN THE APPLICABLE PRO- GRAMS (b) 1 THE CONTRACTOR SHALL SUBMIT WEEKLY FOR EACH WEEK IN WHICH ANY CONTRACT WORK IS PERFORMED A COPY OF ALL PAYROLLS TO UMTA IF UMTA IS A PARTY TO THE CONTRACT, BUT IF UMTA IS NOT SUCH A PARTY, THE CONTRACTOR WILL SUBMIT THE PAYROLLS TO THE APPLICANT, SPONSOR, OR OWNER, AS THE CASE MAY BE, FOR TRANSMISSION TO UMTA THE PAYROLLS SUBMITTED SHALL SET OUT ACCURATELY AND COMPLETELY ALL OF THE INFORMATION REQUIRED TO BE MAINTAINED UNDER 29 C F R § 5 5(a) (3) (0 THIS INFORMATION MAY BE SUBMITTED IN ANY FORM DESIRED OPTIONAL FORM WH-347 IS AVAILABLE FOR THIS PURPOSE AND MAY BE PURCHASED FROM THE SUPERINTENDENT OF DOCU- MENTS (FEDERAL STOCK NO 029-005-00014-1), U S GOVERNMENT PRINTING OFFICE, WASHINGTON, D C 20402 THE PRIME CONTRACTOR IS RESPONSIBLE FOR THE SUBMISSION OF COPIES OF PAYROLLS BY ALL SUBCONTRACTORS AAA032AD 2 EACH PAYROLL SUBMITTED SHALL BE ACCOMPA- NIED BY A "STATEMENT OF COMPLIANCE," SIGNED BY THE CONTRAC- TOR OR SUBCONTRACTOR OR HIS OR HER AGENT WHO PAYS OR SUPERVISES THE PAYMENT OF THE PERSONS EMPLOYED UNDER THE CONTRACT AND SHALL CERTIFY THE FOLLOWING (a) THAT THE PAYROLL FOR THE PAYROLL PERIOD CONTAINS THE INFORMATION REQUIRED TO BE MAINTAINED UNDER 29 CFR § 55 (a) (3) (0 AND THAT SUCH INFORMATION IS CORRECT AND COMPLETE, (b) THAT EACH LABORER OR MECHANIC (IN- CLUDING EACH HELPER, APPRENTICE, AND TRAINEE) EMPLOYED ON THE CONTRACT DURING THE PAYROLL PERIOD HAS BEEN PAID THE FULL WEEKLY WAGES EARNED, WITHOUT REBATE, EITHER DIRECTLY OR INDIRECTLY, AND THAT NO DEDUCTIONS HAVE BEEN MADE EITHER DIRECTLY OR INDIRECTLY FROM THE FULL WAGES EARNED, OTHER THAN PERMISSIBLE DEDUCTIONS AS SET FORTH AT 29 C F R PART 3, (c) THAT EACH LABORER OR MECHANIC HAS BEEN PAID NOT LESS THAN THE APPLICABLE WAGE RATES AND FRINGE BENEFITS OR CASH EQUIVALENTS FOR THE CLASSIFICATION OF WORK PERFORMED, AS SPECIFIED IN THE APPLICABLE WAGE DETERMINATION INCORPORATED INTO THE CONTRACT 3 THE WEEKLY SUBMISSION OF A PROPERLY EXECUTED CERTIFICATION SET FORTH ON THE REVERSE SIDE OF OPTIONAL FORM WH-347 SHALL SATISFY THE REQUIREMENT FOR SUBMISSION OF THE "STATEMENT OF COMPLIANCE" REQUIRED BY 29 C F R § 5 5(a) (3) 01) (B) 4 THE FALSIFICATION OF ANY OF THE ABOVE CERTIFICATIONS MAY SUBJECT THE CONTRACTOR OR SUBCONTRAC- TOR TO CIVIL OR CRIMINAL PROSECUTION UNDER 18 U S C § 1001 AND 31USC §231 (c) THE CONTRACTOR OR SUBCONTRACTOR SHALL MAKE THE RECORDS REQUIRED UNDER 29 C F R § 5 5(a) (3) (1) AVAILABLE FOR INSPECTION, COPYING, OR TRANSCRIPTION BY AUTHORIZED REPRESENTATIVES OF UMTA OR THE DEPARTMENT OF LABOR, AND SHALL PERMIT SUCH REPRESENTATIVES TO INTERVIEW EMPLOYEES DURING WORKING HOURS ON THE JOB IF THE CONTRACTOR OR SUBCONTRACTOR FAILS TO SUBMIT THE REQUIRED RECORDS OR MAKE THEM AVAILABLE, UMTA MAY, AFTER WRITTEN NOTICE TO THE CONTRACTOR, SPONSOR, APPLICANT, OR OWNER, TAKE SUCH ACTION AS MAY BE NECESSARY TO CAUSE THE SUSPENSION OF ANY FURTHER AAA032AD PAYMENT, ADVANCE, OR GUARANTEE OF FUNDS FURTHERMORE, FAILURE TO SUBMIT THE REQUIRED RECORDS UPON REQUEST OR MAKE SUCH RECORDS AVAILABLE MAY BE GROUNDS FOR DEBARMENT ACTION PURSUANT TO 29 C F R § 5 12 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 RECOGNIZED BY THE BUREAU, OR IF A PERSON IS EMPLOYED IN HIS OR HER FIRST 90 DAYS OF PROBATIONARY EMPLOYMENT AS AN APPRENTICE IN SUCH AN APPRENTICESHIP PROGRAM, WHO IS NOT INDIVIDUALLY REGISTERED IN THE PROGRAM, BUT WHO HAS BEEN CERTIFIED BY THE BUREAU OF APPRENTICESHIP AND TRAINING OR A STATE APPRENTICESHIP AGENCY (WHERE APPROPRIATE) TO BE ELIGIBLE FOR PROBATIONARY EMPLOYMENT AS AN APPRENTICE THE ALLOWABLE RATIO OF APPRENTICES TO JOURNEYMEN ON THE JOB SITE IN ANY CRAFT CLASSIFICATION SHALL NOT BE GREATER THAN THE RATIO PERMITTED TO THE CONTRACTOR AS TO THE ENTIRE WORK FORCE UNDER THE REGISTERED PROGRAM ANY WORKER LISTED ON A PAYROLL AT AN APPRENTICE WAGE RATE, WHO IS NOT REGISTERED OR OTHERWISE EMPLOYED AS STATED ABOVE, SHALL BE PAID NOT LESS THAN THE APPLICABLE WAGE ON THE WAGE DETER- MINATION FOR THE CLASSIFICATION OF WORK ACTUALLY PER- FORMED IN ADDITION, ANY APPRENTICE PERFORMING WORK ON THE JOB SITE IN EXCESS OF THE RATIO PERMITTED UNDER THE REGIS- TERED PROGRAM SHALL BE PAID NOT LESS THAN THE APPLICABLE WAGE RATE ON THE WAGE DETERMINATION FOR THE WORK ACTUAL- Ly PERFORMED WHERE A CONTRACTOR IS PERFORMING CONSTRUC- TION ON A PROJECT IN A LOCALITY OTHER THAN THAT IN WHICH ITS PROGRAM IS REGISTERED, THE RATIOS AND WAGE RATES (EXPRESSED IN PERCENTAGES OF THE JOURNEYMAN'S HOURLY RATE) SPECIFIED IN THE CONTRACTOR'S OR SUBCONTRACTOR'S REGISTERED PROGRAM SHALL BE OBSERVED EVERY APPRENTICE MUST BE PAID AT NOT LESS THAN THE RATE SPECIFIED IN THE REGISTERED PROGRAM FOR THE APPRENTICE'S LEVEL OF PROGRESS, EXPRESSED AS A PERCENT- AGE OF THE JOURNEYMAN HOURLY RATE SPECIFIED IN THE APPLICA- BLE WAGE DETERMINATION APPRENTICES SHALL BE PAID FRINGE BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE APPREN- TICESHIP PROGRAM IF THE APPRENTICESHIP PROGRAM DOES NOT SPECIFY FRINGE BENEFITS, APPRENTICES MUST BE PAID THE FULL AMOUNT OF FRINGE BENEFITS LISTED ON THE WAGE DETERMINATION AAA032AD FOR THE APPLICABLE CLASSIFICATION IF THE ADMINISTRATOR DETERMINES THAT A DIFFERENT PRACTICE PREVAILS FOR THE APPLICABLE APPRENTICE CLASSIFICATION, FRINGE BENEFITS SHALL BE PAID IN ACCORDANCE WITH THAT DETERMINATION IN THE EVENT THE BUREAU OF APPRENTICESHIP AND TRAINING, OR A STATE APPRENTICESHIP AGENCY RECOGNIZED BY THE BUREAU, WITHDRAWS APPROVAL OF AN APPRENTICESHIP PROGRAM, THE CONTRACTOR WILL NO LONGER BE PERMITTED TO UTILIZE APPRENTICES AT LESS THAN THE APPLICABLE PREDETERMINED RATE FOR THE WORK PERFORMED UNTIL AN ACCEPTABLE PROGRAM IS APPROVED (b) TRAINEES EXCEPT AS PROVIDED IN 29 C F R § 5 16, TRAINEES WILL NOT BE PERMITTED TO WORK AT LESS THAN THE PREDETERMINED RATE FOR THE WORK PERFORMED UNLESS THEY ARE EMPLOYED PURSUANT TO AND INDIVIDUALLY REGISTERED IN A PROGRAM WHICH HAS RECEIVED PRIOR APPROVAL, EVIDENCED BY FORMAL CERTIFICATION BY THE U S DEPARTMENT OF LABOR, EMPLOYMENT AND TRAINING ADMINISTRATION THE RATIO OF TRAINEES TO JOURNEYMEN ON THE JOB SITE SHALL NOT BE GREATER THAN PERMITTED UNDER THE PLAN APPROVED BY THE EMPLOYMENT AND TRAINING ADMINISTRATION EVERY TRAINEE MUST BE PAID AT NOT LESS THAN THE RATE SPECIFIED IN THE APPROVED PROGRAM FOR THE TRAINEE'S LEVEL OF PROGRESS, EXPRESSED AS A PERCENT- AGE OF THE $OURNEYMAN HOURLY RATE SPECIFIED IN THE APPLICA- BLE WAGE DETERMINATION TRAINEES SHALL BE PAID FRINGE BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE TRAINEE PROGRAM IF THE TRAINEE PROGRAM DOES NOT MENTION FRINGE BENEFITS, TRAINEES SHALL BE PAID THE FULL AMOUNT OF FRINGE BENEFITS LISTED ON THE WAGE DETERMINATION UNLESS THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION DETERMINES THAT THERE IS AN APPRENTICESHIP PROGRAM ASSOCIATED WITH THE CORRESPONDING JOURNEYMAN WAGE RATE ON THE WAGE DETERMI- NATION, THAT PROVIDES FOR LESS THAN FULL FRINGE BENEFITS FOR APPRENTICES ANY EMPLOYEE LISTED ON THE PAYROLL AT A TRAINEE RATE WHO IS NOT REGISTERED AND PARTICIPATING IN A TRAINING PLAN APPROVED BY THE EMPLOYMENT AND TRAINING ADMINISTRATION SHALL BE PAID NOT LESS THAN THE APPLICABLE WAGE RATE ON THE WAGE DETERMINATION FOR THE CLASSIFICATION OF WORK ACTUALLY PERFORMED IN ADDITION, ANY TRAINEE PERFORMING WORK ON THE JOB SITE IN EXCESS OF THE RATIO PERMITTED UNDER THE REGISTERED PROGRAM SHALL BE PAID NOT LESS THAN THE APPLICABLE WAGE RATE ON THE WAGE DETERMINA- TION FOR THE WORK ACTUALLY PERFORMED IN THE EVENT THE EMPLOYMENT AND TRAINING ADMINISTRATION WITHDRAWS APPROV- AL OF A TRAINING PROGRAM, THE CONTRACTOR WILL NO LONGER BE PERMITTED TO UTILIZE TRAINEES AT LESS THAN THE APPLICABLE AAA032AD PREDETERMINED RATE FOR THE WORK PERFORMED UNTIL AN ACCEPTABLE PROGRAM IS APPROVED (c) EOUALEMPLOYMENT OPPORTUNITY THE UTILIZATION OF APPRENTICES, TRAINEES, AND JOURNEYMEN UNDER 29 C F R PART 5 SHALL BE IN CONFORMITY WITH THE EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS OF EXECUTIVE ORDER 11246, AS AMENDED, AND 29 C F R PART 30 5 COMPLIANCE WITH COPELAND ACT REOUIREMENTS 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 ~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a) CERTIFICATION OF ELIGIBILITY BY ENTERING INTO THIS AGREEMENT OR A THIRD PARTY CONTRACT FINANCED UNDER THIS AGREEMENT, THE CONTRACTOR CERTIFIES THAT NEITHER IT (NOR HE NOR SHE) NOR ANY PERSON OR FIRM THAT HAS AN INTEREST IN THE CONTRACTOR'S FIRM IS A PERSON OR FIRM INELIGIBLE TO BE AWARDED GOVERNMENT CONTRACTS BY VIRTUE OF SECTION 3 (a) OF THE DAVIS-BACON ACT OR 29 C F R § 5 12(a) (1) (b) NO PART OF THIS CONTRACT SHALL BE SUBCONTRACT- ED TO ANY PERSON OR FIRM INELIGIBLE FOR AWARD OF A GOVERN- MENT CONTRACT BY VIRTUE OF SECTION 3(a) OF THE DAVIS-BACON ACT OR 29CFR §5 12(a)(1) ,~.AA032AD (c) THE PENALTY FOR MAKING FALSE STATEMENTS IS PRESCRIBED IN THE U S CRIMINAL CODE, 18 U S C § 1001 10 OVERTIME REQUIREMENTS NO CONTRACTOR OR SUBCON- TRACTOR CONTRACTING FOR ANY PART OF THE CONTRACT WORK WHICH MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS SHALL REQUIRE OR PERMIT ANY SUCH LABORER OR MECHANIC IN ANY WORK WEEK IN WHICH HE OR SHE IS EMPLOYED ON SUCH WORK TO WORK IN EXCESS OF FORTY HOURS IN SUCH WORK WEEK UNLESS SUCH LABORER OR MECHANIC RECEIVES COMPENSA- TION AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE BASIC RATE OF PAY FOR ALL HOURS WORKED IN EXCESS OF FORTY HOURS IN SUCH WORK WEEK 11 VIOLATION. LIABILITY FOR UNPAID WAGES. LIOUIDATED DAMAGES IN THE EVENT OF ANY VIOLATION OF THE REQUIREMENTS OF 29 C F R § 5 5(b) (I), THE CONTRACTOR AND ANY SUBCONTRACTOR RESPONSIBLE THEREFOR SHALL BE LIABLE FOR THE UNPAID WAGES IN ADDITION, SUCH CONTRACTOR AND SUBCONTRACTOR SHALL BE LIABLE TO THE UNITED STATES (IN THE CASE OF WORK DONE UNDER CONTRACT FOR THE DISTRICT OF COLUMBIA OR A TERRITORY, TO SUCH DISTRICT OR TO SUCH TERRITORY) FOR LIQUIDATED DAMAGES SUCH LIQUIDATED DAMAGES SHALL BE COMPUTED WITH RESPECT TO EACH INDIVIDUAL LABORER OR MECHANIC, INCLUDING WATCHMEN AND GUARDS, EMPLOYED IN VIOLATION OF 29 C F R § 5 5(b) (1) IN THE SUM OF $10 FOR EACH CALENDAR DAY ON WHICH SUCH INDIVIDUAL WAS REQUIRED OR PERMITTED TO WORK IN EXCESS OF THE STAN- DARD WORK WEEK OF FORTY HOURS WITHOUT PAYMENT OF THE OVERTIME WAGES REQUIRED BY 29 C F R § 5 5(b) (1) 12 WITHHOLDING FOR UNPAID WAGES AND LIOUIDATED DAMAGES UMTA OR THE AGENCY SHALL UPON ITS OWN ACTION OR UPON WRITTEN REQUEST OF AN AUTHORIZED REPRESENTATIVE OF THE DEPARTMENT OF LABOR WITHHOLD OR CAUSE TO BE WITHHELD, FROM ANY MONEYS PAYABLE ON ACCOUNT OF WORK PERFORMED BY THE CONTRACTOR OR SUBCONTRACTOR UNDER ANY SUCH CONTRACT OR ANY OTHER FEDERAL CONTRACT WITH THE SAME PRIME CON- TRACTOR, OR ANY OTHER FEDERALLY-ASSISTED CONTRACT SUBJECT TO THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT, WHICH IS HELD BY THE SAME PRIME CONTRACTOR, SUCH SUMS AS MAY BE DETERMINED TO BE NECESSARY TO SATISFY ANY LIABILITIES OF SUCH CONTRACTOR OR SUBCONTRACTOR FOR UNPAID WAGES AND LIQUIDATED DAMAGES AS PROVIDED IN THE CLAUSE SET FORTH AT 29CFR §55(b)(2) 13 ~ THE CONTRACTOR OR SUBCONTRACTOR SHALL INSERT IN ANY SUBCONTRACTS THE CLAUSES SET FORTH IN AAA032AD SUBSECTIONS 116 a (1) THROUGH (12) OF PART II OF THIS AGREEMENT AND ALSO A CLAUSE REQUIRING THE SUBCONTRACTORS TO INCLUDE THESE CLAUSES IN ANY LOWER TIER SUBCONTRACTS THE PRIME CONTRACTOR SHALL BE RESPONSIBLE FOR COMPLIANCE BY ANY SUBCONTRACTOR OR LOWER TIER SUBCONTRACTOR WITH THE CLAUSES SET FORTH IN SUBSECTIONS 116 a (1) THROUGH 116 a (12) OF PART II OF THE CITY'S AGREEMENT WITH THE GOVERNMENT Nonconstructlon Contracts Pursuant to the regulatxons set forth at 29 C F R Part 5, the followmg provisions shall be incorporated m 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 29CFR § 5 1 THE CON- TRACTOR OR SUBCONTRACTOR SHALL MAINTAIN PAYROLLS AND BASIC PAYROLL RECORDS DURING THE COURSE OF THE WORK AND SHALL PRESERVE THEM FOR A PERIOD OF THREE YEARS FROM THE COMPLETION OF THE CONTRACT FOR ALL LABORERS AND MECHAN- ICS, INCLUDING GUARDS AND WATCHMEN, WORKING ON THE CONTRACT SUCH RECORDS SHALL CONTAIN THE NAME AND ADDRESS OF EACH SUCH EMPLOYEE, SOCIAL SECURITY NUMBER, CORRECT CLASSIFICATIONS, HOURLY RATES OF WAGES PAID, DAILY AND WEEKLY NUMBER OF HOURS WORKED, DEDUCTIONS MADE, AND ACTUAL WAGES PAID THE RECORDS TO BE MAINTAINED UNDER THIS CLAUSE SHALL BE MADE AVAILABLE BY THE CONTRACTOR OR SUB- CONTRACTOR FOR INSPECTION, COPYING, OR TRANSCRIPTION BY AUTHORIZED REPRESENTATIVES OF UMTA, DOT, OR THE DEPARTMENT OF LABOR, AND THE CONTRACTOR OR SUBCONTRACTOR WILL PERMIT SUCH REPRESENTATIVES TO INTERVIEW EMPLOYEES DURING WORKING HOURS ON THE JOB W Environmental. Resource. Energy Protection. and Conservation Reomrements 1 The National Envutonmental Policy Act of 1969, as amended, 42 U S C §§ 4321 et ~eq,, Section 14 of the Urban Mass Transportation Act of 1964, as amended, 49 U S C app §§ 1601 et seq,, the Council on Environmental Quality regulations, 40 C F R Part 1500 et seq,, and the FHWA/UMTA regulation, "Environmental Impact and Related Procedures," 23 C F R Part 771, as amended, are applicable to the Project 2 The Agency shall comply with the provisions of the Clean Air Act, as amended, 42 U S C §§ 1857 et sea., the Federal Water Pollution Control Act, as amended, 33 U S C §§ 1251 et se~., and unplementmg regulations, ~n the facilities that are involved in the Project for which Federal assistance is given The Agency shall ensure that the facfimes under AAA032AD ownerslup, lease or supervision, whether dtrcctly or unde~ contract, that wtll be utilized tn the accomphshment of the ProJect are not hsted on the Environmental Protection Agency (EPA) Ltst of Vtolatmg Facthties Contracts, subcontracts, and sub-grants of amounts tn excess of $100,000 shall contain a provts~on reqmnng comphance w~th all apphcable standards, orders, or reqmrements issued pursuant to Federal statute or regulation The Agency and any third party contractor thereof shall be responsible for reporting any vtolat~ons to C~ty and UMTA and to the EPA Assistant Admnustrator for Enfomement In addmon, the Agency shall noUfy City and UMTA of the receipt of any commumcatton from the D~rector of the EPA Office of Federal Actiwtles indicating that a facility to be utthzed m the Project ts under consideration for hstmg by EPA 3 No facihtles or eqmpment shall be acqutred, constructed, or anproved as a part of the Project unless the Agency obtains sausfactory assurances that they are (or wtll be) designed and equipped to lnmt mr pollntlon as provtded tn accordance w~th the following EPA regulations "Control of A~r Pollution from Motor Vehtcles and Motor Vehicle Engines," 40 C F R Part 85, "Control of A~r Pollution from New Motor Vetncles and New Motor Vehtcle Engines, Test Procedures for Light-Duty Vehicles and Lxght-Duty Trucks and Select,ye Enforcement Auditing of New Light-Duty Velucles, L~ght-Duty Trucks and Heavy-Duty Engines," 40 C F R Part 86, and "Fuel Economy of Motor Vetncles," 40 C F R Part 600, tn accordance w~th applmable federally-approved State Implementatmn Plan(s) (m particular, the Transportation Control Measures), and m accordance wxth appropriate UMTA d~rect~ves and all other apphcable standards 4 No pubhcly owned land from a park, recreation area, or wtldhfe or waterfowl refuge of national, State, or local s~gmficance as determined by the Federal, State, or local offictals having jurlsdmUon thereof, or any land from an htstonc stte of national, State, or local s~gmficance may be used for the ProJect unless specffic findings required under 49 U S C § 303 are made by the Department of Transportauon 5 The Agency shall assist the Government (UMTA) to comply w~th sectxon 106 of the National Historic Preservauon Act mvolwng h~stonc and archaeologmal preservatton by (1) Consulting the State Historic PreservaUon Officer on the conduct of mvemgatlons, m accordance with Advisory Council on Historic Preservation regulattons, "Protection of Historic and Cultural Properties," 36 C F R Part 800, to ~denttfy properties and resources listed m or ehglble for inclusion m the National Register of Htstonc Places that may be affected by the ProJect, and notffymg the Government (UMTA) of the existence of any such properties, and (2) Complying with all Federal reqmrements to avoid or mmgate adverse effects upon such properties 6 The Agency and its third party contractors shall comply with mandatory standards and policies relating to energy efficiency that are contained m apphcable State energy conservation plans issued m comphance with the Energy Policy and Conservation Act, 42 U S C §§ 6321 et sea_ AAA032AD 7 Should the proposed Project cause adverse environmental effects, the Agency shall take all reasonable steps to mmumze such effects pursuant to 49 U S C app § 1610, other applicable statutes, and the procedures set forth m 23 C F R Part 771 The Agency shall undertake all envuconmantal m~ttgatton measures that may be identified as commitments m applicable environmental documents (such as envlronmental assessments, environmental u'npact statements, memoranda of agreements, and statements requtred by 49 U S C § 303) and with any conditions tmposed by the Government as part of a finding of no slgmf~cant nnpact or a record of decision, all such mitigation measures are incorporated m and made part of this Agreement by reference In the event that some or all m~tlgatlon measures are deferred, once such measures are agreed upon by the Government, City and the Agency, those mitigation methods subsequently determined will be incorporated into flus Agreement Such mitigation measures may not be modified or withdrawn without the express written approval of the Government 8 In carrying out the Project, the Agency shall make all appropriate efforts to foster the use of fly ash, substanUally m compliance with EPA regulations "Guldehne 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 m 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 regulaUons, "Umform Relocatmn and Real Property Acqmsmon Regulatton for Federal and Federally Assisted Programs," 49 C F R Part 24 2 Agency shall comply with the flood insurance purchase requtrements of section 102(a) of the Flood Disaster Protection Act of 1973, 42 U S C § 4012(a), w~th respect to any construction or acquisition Project 3 Agency shall comply with the bus testing requirements as set forth ~n section 12(h) of the Urban Mass Transportation Act of 1964, as amended, 49 U S C app § 1608(h), and any unplementmg regulations that may be issued thereunder 4 Agency shall comply with any regulaUons that may be issued to unplement section 120) of the Urban Mass Transportation Act, of 1964, as amended, 49 U S C app § I6080) 5 If any ~nventlon, unprovement, or discovery of the Agency or any of its flurd party contractors is conceived or first actually reduced to practice m the course of or under th~s Pro3eet, which invention, Lraprovement, or discovery may be patentable under the laws of the Umted States of America or any foreign country, the Agency shall ~mmedlately notify the Government (UMTA) and provide a detailed report The rights and responsfluht~es of the Agency, flurd party contractors, the C~ty and the Government with respect to such invention, tmprovement, or discovery will be determined in accordance with applicable Federal laws, regulattons, policies, and any wmver thereof AAA032AD 6 I~hts m Data a The term "subject data" as used hereto means recorded reformation, whether or not copyrighted, that is dehvered or specified to be dehvered under flus Agreement The term includes grapbac or pactonal dehneat~ons m media such as drawings or photographs, text m specifications or related performance or design-type documents, machine forms such as punched cards, magneuc tape, or computer memory prmtouts, and mformauon retained ~n computer memory Examples mclude, but are not lnmted to computer software, engineering drawings and associated lists, spec~fieauons, standards, process sheets, manuals, techmcal repons, catalog ~tem ~dent~ficaUons, and related ~nformaUon The term does not include financial repons, cost analyses, and smafiar mformaUon incidental to Project admlmstranon b The followmg restncuons apply to all subject data first produced ~n the performance of flus Agreement (1) Except for ~ts own mtemal use, the Agency may not pubhsh or reproduce such data m whole or In pan, or in any manner or form, nor may the Agency authorize others to do so, w~thout the written consent of the Caty and the Government, until such txme as the Government may have either released or approved the release of such data to the pubhc, th~s restncnon on pubhcauon, however, does not apply to Agreements w~th academic msnmt~ons (2) As anthor~zed by 49 C F R Pan 18 34, the C~ty and the Government (UMTA) reserve a royalty-free, non-exclusive and ~rrevocable hcense to reproduce, publish or otherwase use, and to authorize others to use, for Federal Government purposes (a) Any work developed under a grant, cooperative agreement, sub- gram, sub-agreement, or flurd party contract, ~rrespecuve of whether or not a copyright has been obtained, and (b) Any rights of copyright to which a Agency, sub-reclp~ent, or a flurd party contractor purchases ownersbap with Federal assistance c Agency understands and agrees that, ~n addmon to the rights set forth ~n Subsection 119 b (2) of Pan II of flus Agreemem, UMTA may make available to any UMTA recipient, sub-grantee, sub-recipient, flurd party contractor, or flurd party subcontractor, e~ther UMTA's heense m the copyright to the "subject data" derived under tlus Agreemem or a copy of the "subject data" first produced under this Agreement d The C~ty and Agency shall mdemmfy, save and hold harmless the Govern- mere, ~ts officers, agents, and employees acting w~th~n the scope of their official duties against any habfilty, mctudmg costs and expenses, resulting from any willful or mtem~onal wolat~on by the Agency of proprietary rights, copyrights, or right of privacy, ansmg out of the pubhcat~on, translatlon, reproduction, dehvery, use, or d~sposmon of any data furmshed under th~s Agreement AAA032AD e Nothing contained m this clause shall Lmply a hcense to the C~ty or Government under any patent or be construed as affecting the scope of any hcense 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 apphcable to material furmshed to the Agency by the U S Government and incorporated tn the work furmshed under the Agreement, provided that such incorporated material ts identified by the Agency at the ttme of dehvery of such work g In the event that the Project, whtch ts the subject of this Agreement, ts not completed, for any reason whatsoever, all data developed under that ProJect shall become subject data as def'med m Subsection 119 a of Part II of the Ctty's Agreement with the Government and shall be delivered as the Government may threct h The reqmrements of Subsections a through g of this Section shall be included tn all third party contracts of the Agency under thts Project 7 Privacy. Should the Agency, or any or its third party contractors, sub-grantees, sub- recipients or their employees admuuster any system of records on behalf of the Federal Govern- ment, the Privacy Act of 1974, 5 U S C § 552a (the Act), unposes mformaUon restrictions on the party admmastermg the system of records a For purposes of the Privacy Act, when the Agreement tnvolves the operation of a system of records on tndlvlduals to accomplish a Government function, the Agency and any third party contractors, sub-grantees, sub-recipients and their employees revolved thereto are considered to be Government employees with respect to the Government function The reqmrements of the Act, ~ncludmg the cxwl and crunmal penalties for wolattons of the Act, apply to those individuals involved Failure to comply wtth the terms of the Act will make this Agreement subject to termlnatlon b As used herein (1) "Operatton of a system of records" means performance of any of the acttvlttes associated with malntalmng the system of records on behalf of the Government mcluthng the collection, use and thssemmatlon of records (2) "Record" means any item, collection, or grouping of mformatton about an individual that Is mamtamed by the Agency on behalf of the Government including, but not 1Lrmted to, his or her education, financial transacttons, medical history, and crmamal or employment history and that contains his or her name, or the identifying number, symbol, or other tdentlfymg partlcular assigned to the mdlwdual, such as a f'mger or votce pnnt or a photograph (3) "System of records" on lndivtduals means a group of any records under the control of the Agency on behalf of the Government from which mformation is retrtevefl by the name of the mthvldual or by some identifying number, symbol or other tdentlfymg particular assigned to the tnthvldual AAA032AD Y GENERAL PROVISIONS a Bonus or Commission. The Agency warrants that it has not paid, and also agrees not to pay, any bonus or commission for the purpose of obtaining approval of its application for the financml assistance hereunder b State or Territorial Law. Except to the extent that a Federal statute or regulation conflicts with State or temtor~al law, nothing m the Agreement shall require the Agency to observe or enforce compliance with any provision thereof, perform any other act, or do any other thing in contravenuon of any applicable State or territorial law, however, if any of the provisions of the Agreement molate any applicable State or territorial law, or ff comph- ance with the provisions of the Agreement would require the Agency to violate any applicable State temtonal law, the Agency shall at once notify the Government (UMTA) m wrmng In order that appropriate arrangements may be made by the Government and the Agency to the end that the Agency may proceed as soon as possible with the ProJect c Records The Agency will, for each local fiscal year ending on or after July 1, 1978, conform to the reporting system and the umform system of accounts and records to the extent reqmred 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 apphcabte regulations "Umform System of Accounts and Records and Reporting System," set forth at 49 C F R Part 630 d Severabihtv If any provis~on 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 reqmrements of applicable law IN WITNESS W,H~,REOF, the pa~les_ do i~0[eby affix their signatures and enter into this Agreement as of the ,/~ ' day of ~t~.-~, 1997 CITY OF DENTON, TEXAS JACKt~dlLLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY AAA032AD APPROVED AS TO LEGAL FORM OFFICE OF THE CITY ATTORNEY AGENCY DIRECTOR ATTEST BY AAA032AD AAA032AD