1995-130 NOTE: First Amendment to Agreement (97-118) is attached.
NOTE: Change Order to the First Amendment (2000-115) is attached.
ORDINANCE NO. ?~--/~('J
AN ORDINANCE ACCEPTING A COMPETITIVE SEALED PROPOSAL AND AWARDING
A CONTRACT FOR THE PURCHASE OF MATERIALS, EQUIPMENT, SUPPLIES OR
SERVICES; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City has solicited, received and tabulated
competitive sealed proposals for the purchase of necessary
materials, equipment, supplies or services in accordance with the
procedures of state law and City ordinances; and
WHEREAS, the City Manager or a designated employee has
reviewed and recommended that the herein described proposals are
the best responsible proposals for the materials, equipment,
supplies or services as shown in the "Proposals" submitted
therefor; and
WHEREAS, the City Council has provided in the City Budget for
the appropriation of funds to be used for the purchase of the
materials, equipment, supplies or services approved and accepted
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. That the numbered items in the following numbered
bids for materials, equipment, supplies, or services, shown in the
"Proposals" attached hereto, are hereby accepted and approved as
being the best responsible proposal for such items:
RFSP ITEM
NUMBER NO. VENDOR AMOUNT
1762 ALL SPAN, INC. $430,000.00
SECTION II. That by the acceptance and approval of the above
numbered items of the submitted proposals, the City accepts the
offer of the persons submitting the proposals for such items and
agrees to purchase the materials, equipment, supplies or services
in accordance with the terms, specifications, standards, quantities
and for the specified sums contained in the Invitations, Proposals,
and related documents.
SECTION III. That should the City and persons submitting
approved and accepted items and of the submitted proposals wish to
enter into a formal written agreement as a result of the
acceptance, approval, and awarding of the proposal, the City
Manager or his designated representative is hereby authorized to
execute the written contract which shall be attached hereto;
provided that the written contract is in accordance with the terms,
conditions, specifications, standards, quantities and specified
sums contained in the Proposal and related documents herein
approved and accepted.
SECTION IV. That by the acceptance and approval of the above
numbered items of the submitted proposals, the City Council hereby
authorizes the expenditure of funds therefor in the amount and in
accordance with the approved proposal or pursuant to a written
contract made pursuant thereto as authorized herein.
SECTION V. That this ordinance shall become effective
immediately upon its passage an~oval.,~.~,
PASSED AND APPROVED this /~ day--'r"- of ~~ , 1995.
BOB CASTLEBERRY, MAY~
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
DATE: JULY 18, 1995
CITY COUNCIL REPORT
TO: Mayor and Members of the City Council
FROM: Lloyd V. Harrell, City Manager
SUBJECT: RFSP # 1762 - PUBLIC TRANSPORTATION
RECOMMENDATION: We recommend this RFSP #1762 be awarded to the sole
respondent, SPAN, Inc.
S~RY: The purpose of this request for sealed proposal is to select a company
to perform public transportation in the Denton urbanized area. The length of the
contract is a minimum of one year with a maximum of three years. The contract
covers both fixed route service and response to service-on-demand one way trips.
SPAN, Inc. has agreed to all terms and conditions of the RFSP which basically
covered the existing five fixed routes and one-way trips on the demand response
system throughout the city limits of Denton.
SPAN is currently providing the outlined services and under this agreement no major
changes wili occur.
BACKGROUND: Cover letter submitted June 29, 1995 by SPAN, Inc.
PROGRAMS, DEPARTMENTS OR GROUPS AFFECTED: Public Transportation and
the Citizens of Denton.
FISCAL IMPACT: This service is funded by a grant from the Federal Transit
Administration (FTA), a grant from the Texas Department of Transportation
(TxDOT), and a local match by the City of Denton. The matching portions of the
grant from FTA and TxDOT are allocated in the following proportions:
FEDERAL STATE LOCAL
OPERATING 50 % 25 % 25 %
Under the formula, the FTA will fund 50% or $215,000 while TxDOT and the City of
Denton will fund 25% each or $107,500 respectively. The total cost for operations is
approximately $430,000.
espectfully submitted.:
~/ LI---~-~. Harre~I~
City Manager
Name: Tom D. Shaw, C.P.M.
Title: Purchasing Agent
AGENDA. 612
SPAN 1800 MALONE, DENTON, TEXAS 76201-1746 -- PHONE 817/382-2224
TRANSPORTATION: 817/382-1900 FAX 817/383-8433
June 29, 1995
Tom D. Shaw, Purchasing Agent
City of Denton
901-B Texas Street
Denton, Texas 76201
Dear Mr. Shaw,
Thank you for the invitation to bid on the RFSP # 1762 - Public
Transportation.
SPAN is proud of the pioneering role that it has played in public
transportation in the City of Denton and in Denton County. Our
experience in public transportation is extensive and the people
of Denton benefit from that experience. The first few years of
the service has grown rapidly both in quantity and in quality.
We have plans with the City of Denton to continue those patterns
of growth.
Denton already has an advantage over many other cities in Texas
because of the present system. We expect to see further develop-
ments in public transportation that will contribute to the
economic growth of the city and its quality of life. We already
hear from people who tell us they decided to move to Denton or to
remain in Denton because of the transportation services.
SPAN has extensive assets to provide all the service needed. Our
vehicles are not only numerous but they are kept in good
operating condition.
Our centrally-located facilities enable us to cover the city and
to perform all of our work efficiently.
SPAN is now in its third decade and its financial stability is
demonstrated by its continous service and broad public support.
A copy of our most recent audited statement is enclosed.
As noted elsewhere in these documents, SPAN does accept the
agreement that is proposed in Exhibit "B".
Greater Lewisville ~'~'® United Way of
United Way, Inc. Denton County, Inc.
SPAN has a long and admirable record of serving the people of
Denton. It has always gone to great lengths to determine the
needs of the people it serves and to design programs that meet
those needs. It has always sought responses from people and
responded to them.
Among the Directors, Advisory Council members, and staff of SPAN
-- both now and in the past -- are many of the community leaders
of Denton. SPAN was started by people in Denton who recognized
local needs and created an organization to meet those needs.
SPAN has always been deeply rooted in Denton. Its only reason
for existence is to serve. It is not an organization that has
only a fleeting or temporary in Denton for its own profit. That
will continue to be the way SPAN operates.
With these submissions SPAN is proposing to provide public trans-
portation services for the city of Denton, both demand/responsive
and fixed route.
Sincerely,
A1 Murdock
Executive Director
cc: Joseph Portugal
AAA032AD
AGREEMENT BETWEEN THE
CITY OF DENTON, TEXAS AND
INC.
This Agreement is hereby entered into by and between the City of Denton, Texas, a
Home Rule Municipal Corporation, (hereinafter referred to as City) and
(hereinafter referred to as Agency); and
WHEREAS, the City Manager has determined that the Agency is the transportation
provider for the City and provides a needed service to citizens of the City and the City Council
has provided for funds in its budget for the purpose of paying for contractual services as well
as providing for eligible Federal Transit Administration funds; and
WHEREAS, the City has received grants from the Federal Transit Administration and
the Texas Department of Transportation to provide public transportation in the Denton urbanized
area and wishes to contract with St?alt n~c. to provide such services;
NOW, THEREFORE, the parties hereto mutually agree as follows:
I. SCOPE OF SERVICES
The Agency shall in a satisfactory and proper manner perform the following Project:
undertake and complete the Project, and provide for the use of the Project facilities or
equipment, substantially as described in City's Application for Federal funding, which is
incorporated herein by reference, filed with and approved by the U. S. Government, and in
accordance with the terms and conditions of this Agreement, including:
A. Providing transportation within the city limits for persons sixty years old or older
and persons with disabilities during the hours of 7:00 a.m. to 7:00 p.m., Monday through Friday
and Saturdays from 10:00 a.m. to 6:00 p.m. On holidays, SPAN shall be allowed to operate
regularly scheduled Saturday service or such schedule that may be agreed upon by the
City Manager of Denton and the Executive Director of SPAN. The holiday schedule selected
shall be published by SPAN and the City of Denton at least two (2) weeks prior to the scheduled
change.
B. Charging a fee to each passenger with a disability One Dollar and Fifty Cents ($1.50)
for every one-way trip on the demand response system provided to that passenger.
C. Providing transportation services within the city limits to the general public on five
fixed routes, as outlined in Section I.A. hereof, for seventy-five ($.75) for each one way trip,
with a free transfer. (Ref. Exhibit "A" Trolley Schedule)
D. Changing a fee to each person 60 years of age and older and all persons with
disabilities eligible under the "Americans with Disabilities Act" no more than half price fare on
the public fixed route system.
E. Before amending its fares, Agency shall send notice to City informing it of the
proposed amendment. The City shall consider whether it shall approve the amendment. If the
City does not take action to approve or disapprove the proposed fare within 60 days, it shall be
deemed to have approved the proposed fare.
F. Agency may contract with other persons or companies in accordance with the terms
and conditions of this agreement to provide the services specified herein during times when
Agency does not operate. Transportation services provided by such subcontractees shall be in
accordance with the terms and conditions of this Agreement.
H. OBLIGATIONS OF AGENCY
In consideration of the receipt of funds from the City, Agency agrees to the following
terms and conditions:
A. It will establish a separate bank account for deposit of funds paid to the Agency by
the City and the only expenditures from this account, until such time as said funds are
exhausted, shall be for those expenses listed in the scope of services as provided for herein.
Agency shall not commingle funds received from other sources in this account and shall not
utilize these funds for any other purpose.
B. It will establish, operate, and maintain an account system for this program that will
allow for a tracing of funds and a review of the financial status of the project and will permit
authorized officials for the City of Denton to review its books at any time.
C. It will comply with all federal statutes and regulations promulgated thereunder
applicable to the Agency.
D. It will comply with all provisions of the current annual contract between the City and
State Department of Transportation, approved by the City of Denton on August 16, 1994, a copy
of which is attached hereto as Exhibit "C" and incorporated by reference herein.
E. It will reduce to writing all of its rules, regulations and policies, such as drug testing,
training procedures, grievance policies, and compliance with the Americans with Disabilities
Act, and file a copy with the City's Executive Director of Finance or her authorized
representative along with any amendments, additions, or revisions whenever adopted.
F. It will not enter into any contracts that would encumber the City funds for a period
that would extend beyond the term of this Agreement.
G. At the discretion of the City, the Agency may be required to refund the balance of
the special account to the City of Denton at the end of the Agency's fiscal year.
H. It will promptly pay all bills when submitted unless there is a discrepancy in a bill;
any errors or discrepancies in bills shall be promptly reported to the Executive Director of
Finance or their authorized representative for further direction.
PAGE 2
I. It will appoint a representative who will be available to meet with the Executive
Director of Finance and other City officials when requested.
J. It will indemnify and hold harmless the City from any and all claims and suits arising
out of the activities of the Agency, its employees, or contractors and save and hold the City
haniiless from all liability, including costs, expenses and attorneys fees, for or on account of,
any claims, audit exceptions, suits, or damages of any character whatsoever resulting in whole
or in part from the performance or omission of any act of any employee, agent or representative
of the Agency, whether or not such claim arises from the sole negligence of City.
K. It will submit to the City copies of year-end audited financial statements in
accordance with the provisions hereof. It shall also submit to the City an annual report to
include year-end statistics of the number of riders, fixed route by route, final financial data and
other q~antitative data enumerating milestones and accomplishments. The infon~ation in these
reports should be as of September 30, 1996, 1997 and 1998, and should be submitted to the City
no later than November 15, 1996, 1997 and 1998.
L. It will maintain liability insurance in amounts not less than the statutorily required
worker's compensation insurance, $500,000 in automobile liability insurance coverage, and
$1,000,000 in general liability insurance coverage. It will name the City of Denton, Texas and
the State of Texas as additional insureds on liability policies and shall provide City with
certificates evidencing such coverage. Said policies shall not be cancelable unless 30 days
written notice is given to City before cancellation.
M. Agency shall submit its grant funds for the upcoming year no later than December
31, 1995.
N. Agency shall anticipate and be actively involved in public hearings on the grant
proposal, as required by the American with Disabilities Act and ridership input for system and
route changes, at such times as required by law.
O. All requests for reimbursement shall include documentation of expenditures as
required by City's Executive Director for Finance. Invoice copies shall be included for each
expense, and the expenses shall be summarized by budget line item. Farebox revenue receipt
figures shall be included in each billing statement, and documentation shall be provided to
support such figures.
P. Agency shall submit to the City copies of each accident report, the Police accident
report, Agency accident report and indication of drug policy action taken as soon as possible
after the accident. A review of accidents will be conducted quarterly with the assistance of the
City's Risk Manager.
Q. Agency shall submit evidence of compliance with various federal and state
regulations pursuant to City's request.
R. The Agency agrees:
PAGE 3
1. To comply with the Privacy Act of 1974, 5 U.S.C. § 552a and regulations
thereunder, when peffom~ance under the Project involves the design, development, or operation
of any system of records on individuals to be operated by the Agency, its third party contractors,
sub-grantees, sub-recipients, or their employees to accomplish a Government function;
2. To notify the Government when the Agency or any of its third party
contractors, sub-grantees, sub-recipients, or their employees anticipates operating a system of
records on behalf of the Government in order to implement the Project, if such system contains
information about individuals retrievable by the individual's name or other identifier assigned
to the individual. A system of records subject to the Act may not be used in the performance
of this Agreement until the necessary and applicable approval and publication requirements have
been met. The Agency, its third party contractors, sub-grantees, sub-recipients, and their
employees agree to correct, maintain, disseminate, and use such records in accordance with the
texms of the Act, and to comply with all applicable terms of the Act;
3. To include in every solicitation and in every third party contract, sub-grant,
and sub-agreement when the performance of work under that proposed third party contract, sub-
grant, or sub-agreement may involve the design, development, or operation of a system of
records on individuals to be operated under that third party contract, sub:grant, or sub-agreement
to accomplish a Government function, a Privacy Act notification informing the third party
contractor, sub-grantee, or sub-recipient that it will be required to design, develop, or operate
a system of records on individuals to accomplish a Government function subject to the Privacy
Act of 1974, 5 U.S.C. § 552a, and Federal agency regulations, and that a violation of the Act
may involve the imposition of criminal penalties; and
4. To include the text of Subsections 125.c (1) through 125.c (4) of Part II of the
City's Agreement with the Government, in all third party contracts, sub-grants, and sub-
agreements under which work for this Agreement is performed or which is awarded pursuant
to this Agreement or which may involve the design, development, or operation of such a system
of records on behalf of the Government.
S. Prohibition of Drugs. The Agency agrees to comply with the following regulations:
IJMTA regulations, uControl of Drug Use in Mass Transportation Operations," 49 C.F.R. Part
653; Department of Transportation regulations, "Drug-Free Workplace Requirements (Grants),"
49 C.F.R. Part 29, Subpart F; and Department of Transportation regulations, "Procedures for
Transportation Workplace Drug Testing Programs," 49 C.F.R. Part 40, and "Qualification of
Drivers," 49 C.F.R. Part 391, Subpart h.
Agency shall obtain from its third party contractors, sub-grantees, and sub-recipients
certifications required by Department of Transportation regulations, "Government-wide
Debarment and Suspension (Non-procurement)," 49 C.F.R. Part 29, and otherwise comply with
the requirements of those regulations.
T. Agency acknowledges that if it makes a false, fictitious, or fraudulent claim,
statement, submission, or certification to the Government in connection with this Project, the
Government reserves the right to pursue the procedures and impose on the Agency the penalties
PAGE 4
of 18 U.S.C. § 1001, 31 U.S.C. §§ 231 and 3801 et seq., and/or 49 U.S.C. app. § 1607(h),
and may be deemed by the Government to be appropriate. The terms of Department of
Transportation regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, are applicable
to this Project.
Ill. TIME OF PERFORMANCE
The services funded by the City shall be undertaken by the Agency within the following
time frame:
(Date of Award) through September 30, 1999.
IV. METHOD OF PAYMENT
A. Payment by the City for services provided hereunder shall be requested by the
Agency by letter addressed to: City of Denton, 215 East McKinney, Denton, Texas 76201, Attn:
City Manager's Office.
B. Agency shall make each request for payment in accordance with the provisions herein
and all requests for payment shall be submitted to the City Manager.
C. The City shall submit a request for payment to the FTA. Within three (3) working
days of receiving reimbursement from the FTA, the City shall send payment to the Agency.
D. It is expressly understood and agreed that (i) the funds payable under this Agreement
are subject to receipt of monies from the State of Texas and the FTA. Should the funds be
curtailed, or should the City be required to curtail its funding, City shall have the right to
terminate this Agreement immediately without penalty. In no event under the temps of this
Agreement will the total compensation to be paid exceed the amount of the City's FTA and State
grants, as outlined in the City's contracts with the State and the FTA.
It is expressly understood that this contract in no way obligates the General Fund or
any other monies or credits of the City of Denton.
E. The City shall not be obligated or liable under this contract to any party other than
the Agency for payment of any monies or provision of any goods or services.
V. EVALUATION
The Agency agrees to participate in an implementation and maintenance system whereby
its services can be continuously monitored. The Agency agrees to make available its financial
records for review by the City at the City's discretion. In addition, the Agency agrees to
provide the City copies of the following data and reports:
A. All external or internal audits. Agency shall submit a copy of the annual independent
audit to City within ten (10) days of receipt.
PAGE 5
B. All external or internal evaluation reports.
C. Agency shall submit quarterly financial statements to City in January, April, July,
and September. Each statement shall include expenses and income for the preceding quarter and
shall identify the number of participants in each transportation program the agency operates.
Agency shall submit such statements not later than the fifteenth day of the month following the
end of each quarter.
VI. DIRECTORS' MEETINGS
During the term of this Agreement, the Agency shall cause to be delivered to the City
copies of all notices of meetings of its Board of Directors, setting forth the time and place
thereof. Such notice shall be delivered to the City in a timely manner to give adequate notice,
and shall include an agenda and a brief description of the matters to be discussed. Agency
understands and agrees that City representatives shall be afforded access to all Board of
Directors' meetings.
Minutes of all meetings of the Agency's governing body shall be submitted to the City
within ten (10) working days of approval.
VH. SUSPENSION OR TERMINATION
The City may suspend or terminate this Agreement and payments to the Agency, in whole
or part, for cause. Cause shall include but not be limited to the following:
A. Agency's improper, misuse, or inept use of funds;
B. Agency's failure to comply with the terms and conditions of this Agreement;
C. Agency's submission of data or reports that are incorrect or incomplete in any
material respect;
D. Appointment of a trustee, receiver or liquidator for all or a substantial part of the
Agency's property, or institution of bankruptcy, reorganization, rearrangement of or liquidation
proceedings by or against the Agency; or
E. If for any reason the carrying out of this Agreement is rendered impossible or
infeasible.
In case of suspension, the City shall advise the Agency, in writing, as to conditions
precedent to the resumption of funding and specify a reasonable data for compliance.
In case of termination, the Agency will remit to the City any unexpended City funds.
Acceptance of these funds shall not constitute a waiver of any claim the City may otherwise have
arising out of this Agreement.
PAGE 6
VIIL EQUAL OPPORTUNITY
A. Agency will submit for City approval a written plan for compliance with the Equal
Employment and Affirmative Action Federal provisions, within one hundred twenty (120) days
of the effective date of this Agreement.
B. Agency shall comply with all applicable equal employment opportunity and
affu'mative action laws or regulations.
C. Agency will furnish all information and reports requested by the City, and will
pemdt access to its books, records, and accounts for purposes of investigation to ascertain
compliance with local, state and Federal rules and regulations.
D. In the event of the Agency's non-compliance with the Federal non-discrimination
requirements, the Agreement may be cancelled, terminated, or suspended in whole or in part,
and the Agency may be barred from further contracts with the City.
IX. CONFLICT OF INTEREST
A. The Agency covenants that neither it nor any member of its governing body presently
has any interest, direct or indirect, which would conflict in any manner or degree with the
performance of services required to be performed under this Agreement. The Agency further
covenants that in the performance of this Agreement, no person having such interest shall be
employed or appointed as a member of its governing body.
B. The Agency further covenants that no member of its governing body or its staff,
subcontractors or employees shall possess any interest in or use his position for a purpose that
is or gives the appearance of being motivated by desire for private gain for himself, or others,
particularly those with which he has family, business, or other ties.
C. No officer, member, or employee of the City and no member of its governing body
who exercises any function or responsibilities in the review or approval of the undertaking or
carrying out of this Agreement shall (1) participate in any decision relating to the Agreement
which affects his personal interest or the interest in any corporation, partnership, or association
in which he has direct or indirect interest; or (2) have any interest, direct or indirect, in this
Agreement or the proceeds thereof.
X. NEPOTISM
Agency shall not employ in any paid capacity any person who is a member of the
immediate family of any person who is currently employed by Agency, or is a member of
Agency's governing board. The term "member of immediate family" includes: wife, husband,
son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, step-parent,
step-child, half-brother and half- sister.
PAGE 7
XI. SPECIAL CONDITIONS
A. Agency agrees to undertake, carry out, and complete the Project consistent with thc
temps and conditions determined by the Secretary of Labor to be fair and equitable to protect
the interests of employees affected by the Project and meet requirements of Section 13(c) of
Federal Transit Act, as amended, 49 U.S.C. App. Section 1609(c), and Department of Labor
(DOL) guidelines set forth in 29 C.F.R. Part 215. These temps and conditions are identified in
the letter of certification from DOL to FTA whose date is set forth in the Notification of Grant
Approval to the City. The Agency agrees to carry out the Grant in compliance with the con-
ditions stated in that DOL letter. That letter and any documents cited in the letter are
incorporated herein by reference and made part of this Grant.
B. Agency agrees to comply with the requirements of Section 8 of the Federal Transit
Act, as amended, 49 U.S.C. App. Section 1607, and any implementing regulations that may be
issued thereunder.
C. Agency agrees that it will utilize its administrative process to solicit and consider
public comment prior to raising fares or implementing a major reduction of service.
D. Agency agrees that the Federal Government and the City may, at least annually and
more frequently in its discretion, either conduct or require the Agency to have independently
conducted, reviews and audits as the Government may deem appropriate pursuant to the
provisions of Section 9(g) of the Federal Transit Act, as amended, 49 U.S.C. App. Section
1607a(g), and any regulations or guidelines that may be issued by the Government.
E. Agency agrees and assures that the rates charged elderly and handicapped persons
during nonpeak hours for transportation utilizing or involving the facilities and equipment
fmanced pursuant to this Agreement will not exceed one-half of the rates generally applicable
to other persons at peak hours, whether the operation of such facilities and equipment is by the
Agency or is by another entity under lease or otherwise. The Agency agrees and assures that
it will give the rate required herein to any person presenting a Medicare card duly issued to that
person pursuant to Title II or Title XVIII of the Social Security Act.
F. Agency agrees to comply with applicable Buy America statutory and regulatory
provisions. The Agency may, without prior approval, procure an associated capital maintenance
item eligible under Section 90) of the Federal Transit Act, 49 U.S.C. App. Section 1607a0),
by contract directly with the original manufacturer or supplier of the item to be replaced,
provided that the Agency first certifies in writing to the Government that: (1) such manufacturer
or supplier is the only source of such item; and (2) the price of such item is no higher than the
price paid for such item by like customers.
G. Agency shall implement a project management plan, as approved by the Federal
Government, in accordance with the requirements of Section 23 of the Federal Transit Act, as
amended, 49 U.S.C. App. Section 1619, and any implementing regulations that may be there-
under.
PAGE 8
XH. ADDITIONAL COVENANTS OF AGENCY
A. Definitions. As used in this section:
1. ~ means any Grant Agreement or cooperative Agreement.
2. Application means the signed and dated proposal as may be amended for
Federal financial assistance for the Project, together with all explanatory, supporting, and
supplementary documents heretofore filed with and accepted and approved by the Government
(UMTA) by or on behalf of the Agency.
3. At~oroval. Authorization. Concurrence. Waiver means a conscious written act
by an authorized official of the UMTA and City granting pexnfission to the Agency to perfoaii
or omit an action pursuant to this Agreement, which action may not be performed or omitted
without such permission. An approval, authorization, concurrence, or waiver pe/afitfing the
perfo~'mance or omission of a specific action shall not constitute permission to perfo~a~ or omit
other similar actions unless such permission is clearly stated. Oral permission or interpretations
have no legal force or effect.
4. ],[IffT.~k~ includes the most recent circulares, notices, and orders that
present infot~iiation about UMTA programs, application processing procedures, and guidance
for administering approved Projects; there are also Department of Transportation directives that
may be applicable to the Project.
5. GOVernment means the United States of America, or its cognizant agency, the
Department of Transportation (DOT), or its operating administration, the Urban Mass
Transportation Administration (UMTA), used herein interchangeably.
6. Ma~$ Trans_nortation includes public transportation and means transportation
by bus, rail or other conveyance, either publicly or privately owned, that provides general or
special transportation service (but not including school bus, charter or sightseeing service) to the
public on a regular and continuing basis.
7. Project means the task or set of tasks provided for in the Project Budget which
the Agency undertakes to perform pursuant to this Agreement.
8. Project or Program Budget means the most recently dated statement, approved
by the Government, of the estimated total cost of the Project or Program, the items to be
deducted from such total in order to calculate the estimated net Project cost, the maximum
amount of Federal assistance for which the Agency, through the City, is currently eligible, the
specific items (including contingencies and relocation) for which the total may be spent, and the
estimated cost of each of such items.
9. Secretary_ means Secretary of the Department of Transportation or his or her
duly authorized designee.
PAGE 9
10. UMTA means the Urban Mass Transportation Administration of the U.S.
Department of Transportation.
11. ~i~y means City of Denton, Texas.
B. In thc performance of its obligations pursuant to this Agreement, the Agency agrees
to comply with all applicable provisions of Federal, State, and local laws, regulations, and
UMTA directives. The Agency understands and agrees that Federal laws, regulations, policies,
and related administrative practices in force and made applicable to this Agreement on the date
of execution may be modified from time to time, and that the most recent of such provisions will
govern administration of this Agreement at any particular time, except if there is sufficient
evidence in the Agreement of a contrary intent. Such contrary intent might be evidenced by
express language in any amendments to the Agreement. Likewise, new Federal laws, regula-
tions, policies and administrative practices may be established after the date of execution and
thereafter be applied to this Agreement. As may be necessary to achieve compliance with these
requirements, the Agency shall include notice of such requirements in all third party contracts,
sub-grants, and other sub-assistance agreements financed with Government (UMTA) assistance.
All limits or sta~d_a_rds set forth in this Agreement to be observed in the performance of the
Project are minimum requirements. If there is a conflict between Federal and State or local
requirements, the Agency shall inform the City and the Government (tJMTA) in order that an
appropriate resolution may be arranged.
C. Agency shall submit to the City such data, reports, records, contracts, and other
documents relating to the Project as the City may, during the course of the Project and for three
years thereafter, require. The Agency shall retain intact, for three years following Project close-
out, all Project documents, financial records, and supporting documents and make these records
available to the City as the City may require.
D. Agency shall immediately notify the City of any change in law, conditions, or any
other event that may significantly affect its ability to perform the Project in accordance with the
texnis of this Agreement. In addition, the Agency shall immediately notify the City of any
decision pertaining to the Agency's conduct of litigation that may affect the City's interests in
the Project or the City's administration or enforcement of applicable Federal laws or regulations.
Before the Agency may join the City as a named party to litigation, for any reason, the Agency
agrees to first inform the City; this proviso applies to any type of litigation whatsoever, in any
forum.
E. Absent the express, written consent of the Government or the City and notwithstand-
ing any concurrence by the Government in or approval of the award of any contract or
subcontract or the solicitation thereof, neither the Government nor the City shall be subject to
any obligations or liabilities by contractors of the City or their subcontractors or any other
person not a party to this Agreement in connection with the performance of this Project.
F. Agency shall prepare and maintain a Project Budget. A copy of the said budget shall
be submitted to the City by March 1 of each year. The Agency shall carry out the Project and
shall incur obligations against and make disbursements of Project funds only in confot~fity with
PAGE 10
the latest approved budget for the Project. The Project Budget may be revised, from 'time to
time, to the extent permitted by and in conformance with the requirements of the Government.
G. Agency shall establish and maintain either a separate set of accounts or accounts,
within the framework of an established and approved accounting system, for the Project in a
manner consistent with 49 C.F.R. § 18.20, or OMB Circular A-110, as amended, as may be
applicable.
H. Consistent with the provisions of 49 C.F.R. § 18.21, or OMB Circular A-Il0, as
amended, as may be applicable, the Agency shall record in the Project Account, and deposit in
a bank or trust company all Project payments it receives from the City pursuant to this
Agreement and all other funds provided for, accruing to, or otherwise received on account of
the Project, (Project Funds). A separate bank account may be required when drawdowns are
made by letter of credit. The Agency is encouraged to use banks that are owned at least 50
percent by minority group members.
I. Expenditures made by the Agency shall be reimbursable as allowable costs to the
extent that they meet all the requirements set forth below. They must:
1. Conform with the Project Description and the Project Budget and all other
terms of the Agreement;
2. Be necessary in order to accomplish the Project;
3. Be reasonable in amount for the goods or services purchased;
4. Be actual net costs to the Agency (i.e., the price paid minus any refunds,
rebates, or other items of value received by the Agency that have the effect of reducing the cost
actually incurred, excluding Program Income);
5. Be incurred (and be for work performed) after the date of this Agreement,
unless specific authorization from the Government CLIMTA) or the City to the contrary is
received;
6. Unless permitted otherwise by Federal statute or regulation, conform with
Federal guidelines or regulations and Federal cost principles as set forth in the standards of
OMB Circular A-122, Revised, "Cost Principles for Nonprofit Organizations,' and the standards
of 48 C.F.R. Part 31 are applicable;
7. Be satisfactorily documented; and
8. Be treated uniformly and consistently under accounting principles and
procedures approved and prescribed by the Government or City for the Agency; and those
approved or prescribed by the Agency for its contractors.
PAGE 11
J. All costs charged to the Project, including any approved services contributed by thc
Agency or others, shall be supported by properly executed payrolls, time records, invoices,
contracts, or vouchers evidencing in detail the nature and propriety of the charges. The Agency
shall also maintain accurate records of all Project Funds derived from the implementation of the
Project.
K. Any check or order drawn by the Agency with respect to any item that is or will be
chargeable against the Project Account will be drawn only in accordance with a properly signed
voucher then on file in the office of the Agency stating in proper detail the purpose for which
such check or order is drawn. Ail checks, payrolls, invoices, contracts, vouchers, orders, or
other accounting documents pertaining in whole or in part to the Project shall be clearly
identified, readily accessible, and, to the extent feasible, kept separate and apart from all other
such documents.
L. The Agency shall permit the Secretary and the Comptroller General of the United
States, or any of their duly authorized representatives to inspect all work, materials, payrolls,
and other data and records with regard to the Project, and to audit the books, records, and
accounts of the Agency and its contractors with regard to the Project. In the case of contracts
awarded under other than competitive bidding procedures as defined by the Secretary of
Transportation, the Agency shall require those contractors to per~iiit the Secretary of
Transportation and the Comptroller General of the United States, or any of their duly authorized
representatives to inspect all work, materials, payrolls, and other data and records with regard
to the Project, and to audit the books, records, and accounts pertaining to such contracts with
regard to the Project. If the City is found to be responsible for meeting the audit requirements
of 49 C.F.R. § 18.26 and OMB Circular A-128 or any revision or supplement thereto, the
Agency shall comply with these requests. The Agency is responsible for obtaining any audits
required by the Government (UMTA). Closeout of the Project will not alter the Agency's audit
responsibilities.
1. The Agency shall report its cash disbursements and balances in a timely manner
as required by the City or Government.
2. The Agency shall provide for effective control and accountability for all Project
funds consistent with Federal requirements and procedures for use of the letter of credit.
3. The Agency shall impose on its sub-rccipients all applicable requirements of
Subsections 105.b. (1) (a), Co), and (c) of Part II of this Agreement.
M. Neither the Agency nor any sub-recipient may use Federal assistance funds for
publicity or propaganda purposes designed to support or defeat legislation pending before
Congress.
N. Agency agrees that:
PAGE 12
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.
2. Upon notice by the Government (UMTA) to the City of specific amounts due
the Government, the Agency shall promptly remit any excess payment of amounts or disallowed
costs to the Government (UMTA), including any interest due thereon.
O. The Agency recognizes that the Government (UMTA) reserves the right to deobligate
unspent Federal funds prior to Project closeout, if such occurs, City may terminate this
Agreement without penalty.
P. Agency agrees that, upon written notice, the City may suspend or terminate all or
part of the financial assistance provided herein if the Agency is, or has been, in violation of the
temis of this Agreement, or if the Government or the City determines that the purposes of the
statute under which the Project is authorized would not be adequately served by continuation of
Federal financial assistance for the Project. Any failure to make reasonable progress or other
violation of the Agreement that significantly endangers substantial performance of the Project
shall be deemed to be a breach of this Agreement. If the Agency's failure either to make
adequate progress or to make reasonable use of the Project real property, facilities, or
equipment, or to honor the te, ms of this Agreement is determined by the City to be willful or
unreasonable, the City reserves the right to require the Agency to refund to the City the entire
amount of Project funds provided by the City or any lesser amount as may be determined by the
City.
Q. Within 30 days of the termination of this Agreement, the Agency shall submit a final
Financial Status Report (Standard Fom~ 269), a certification or summary of Project expenses,
and third party audit reports, as applicable. Agency agrees that either the Government (UMTA)
or an agency designated by the Government (UMTA) will perform a final audit of the Project
to detem-dne the allow ability of costs incurred to determine settlement of the Federal assistance
for the Project in accordance with Part I of this Agreement. If City has made payments to the
Agency in excess of the total amount of the Federal assistance due, the Agency shall promptly
remit to the City that excess and interest as may be required by Subsections 105.b. and 105.e.
of Part II of the City's Agreement with the Government. Project closeout occurs when the City
notifies the Agency and forwards the final Federal assistance payment or when the Agency's
remittance of the proper refund has been acknowledged by the City. Project closeout shall not
invalidate any continuing obligations imposed on the Agency by this Agreement or by the City's
final notification or acknowledgment.
R. The following conditions are applicable to real property, equipment, and supplies
financed under this Agreement:
1. The Agency agrees to observe the property management standards set forth in
49 C.F.R. §§ 18.31, 18.32, and 18.33, or OMB Circular A-Il0, Attachment N, as appropriate,
as now or hereafter amended, and any guidelines or regulations that the Government may issue.
Exceptions to the requirements of 49 C.F.R. §§ 18.31, 18.32, and 18.33, and to OMB Circular
PAGE 13
A-II0, Attachment N must be specifically approved by the City. The City reserves the right
to require the Agency to transfer title to any equipment financed with Federal assistance made
available by this Agreement as set forth in 49 C.F.R. § 18.32(g) or OMB Circular A-110,
Attachment N, as may be appropriate. The City also reserves the right to direct the disposition
of real property or equipment financed with Federal assistance funds made available under this
Agreement, as set forth in 49 C.F.R. §§ 18.31 and 18.32 or OMB Circular A-110, Attachment
N, as may be applicable.
2. The Agency agrees to maintain the Project real property, equipment, and
supplies in good operating order, and in accordance with any guidelines, directives, or
regulations that [IMTA may issue. If, during the period, any Project real estate, equipment, or
supplies are not used in mass transportation service, whether by planned withdrawal, misuse or
casualty loss, the Agency shall immediately notify the City. Unless otherwise approved, the
Agency shall remit to the City a proportional amount of the fair market value, if any, of the real
property, equipment, or supplies whose aggregate value exceeds $5,000, which value shall be
determined on the basis of the ratio of the Federal assistance awarded by the Government to the
actual cost of the Project. The following guidelines shall be followed in determining the fair
market value. Unless otherwise approved in writing by UMTA, the fair market value of
equipment and supplies will be the value of that property at the time immediately before the
reason occurred that prompted the decision to withdraw that property from transit use. For
example, in the event of loss of or damage to the property by casualty or fire, the fair market
value of the property will be calculated immediately before the loss or damage, irrespective of
the extent of insurance coverage. In the case of equipment and supplies, fair market value shall
be based on straight line depreciation of the equipment and supplies, based on the industry
standard for useful life, irrespective of the reason for withdrawal of that property from transit
use. In the case of real property, the fair market value shall be determined by competent
appraisal based on an appropriate date as determined by the Government consistent with the
standards of 49 C.F.R. Part 24. The City, however, reserves the right to require another
method of valuation to be used if the Government (UMTA) finds that special circumstances so
require to assure the protection of the Federal investment. In unusualcircumstances, theAgency
may request that another reasonable method of determining fair market value be used, including
but not limited to accelerated depreciation, comparable sales, or established market values. In
determining whether to approve an alternate method, the City may consider any action taken,
omission made or unfortunate occurrence suffered by the Agency with respect to the preservation
or conservation of the value of the real property, equipment, or supplies that, for any reason,
have been withdrawn from service.
3. The Agency further agrees that the Project real property, equipment, and
supplies shall be used for the provision of mass transportation service within the area and in the
manner set forth in the Project Description. Should the Agency unreasonably delay in or refrain
from using Project real estate or equipment, in the manner set forth in the Project Description,
the City reserves the right to require the Agency to return the entire amount of the Federal
assistance expended on that real estate or equipment. The Agency shall keep satisfactory records
with regard to the use of the real property, equipment, and supplies, and submit to the City upon
request such information as may be required to assure compliance with this Section and shall
immediately notify the City in all cases in which Project real property, equipment, or supplies
PAGE 14
are used in a manner substantially different from what is set forth in the Project Description.
The City reserves the right to require the Agency to restore Project real property, equipment,
or supplies or pay for damage to Project real property, equipment, or supplies as a result of
abuse or misuse of such property with the Agency's knowledge and consent.
S. Agency may not execute any transfer of title, lease, lien, pledge, mortgage,
encumbrance, contract, grant anticipation note, alienation, or other obligation that in any way
affects the Federal interest in any Project real property or equipment, nor may the Agency
obligate itself, in any other manner, to any third party with respect to Project real property or
equipment, unless such transfer of rifle, lease, lien, pledge, mortgage, encumbrance, contract,
grant anticipation note, alienation, or other obligation is expressly authorized in writing by the
City and Government (UMTA); nor may the Agency, by any act or omission, adversely affect
the Federal interest or impair the Agency's continuing control over the use of Project real
property or equipment.
T. Civil Rights
I. Equal Employment Opportunity - The following requirements are applicable
to the Project:
(a) In connection with Project implementation, the Agency may not
discriminate against any employee or applicant for employment because of race, color, age,
cr~,x~q, sex, or national origin. The Agency shall take affirmative action to ensure that applicants
are employed, and that employees are treated during employment, without regard to their race,
color, religion, sex, age, or national origin. Such action shall include, but not be limited to, the
following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising,
layoff or termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship. The Agency shall insert the foregoing provision (modified only to
show the particular contractual relationship) in all of its contracts in connection with the develop- '
merit or operation of the Project, except contracts for standard commercial supplies or raw
materials and construction contracts, and shall require all such contractors to insert a similar
provision in all subcontracts, except subcontracts for standard commercial supplies or raw
materials.
(b) If, as a condition of assistance, the Agency has submitted, and the City
has approved, an equal employment opportunity program that the Agency agrees to carry out,
such program is incorporated into this Agreement by reference. Such program shall be treated
as a contractual obligation; and failure to carry out the terms of that equal employment
opportunity program shall be treated as a violation of this Agreement. Upon notification to the
Agency of its failure to carry out the approved program, the Government or the City will impose
such remedies as it may deem appropriate, which remedies may include termination of financial
assistance as set forth in Section 106 of Part II of the City's Agreement with the Government
or other measures that may affect the ability of the Agency to obtain future financial assistance
under the Urban Mass Transportation Act of 1964, as amended, or title 23, United States Code
(Highways).
PAGE 15
2. $~nalk Minori _ty and Women's Business Enterprise. The following provisions
are applicable to the Project:
(a) The Agency shall be responsible for meeting the requirements regarding
participation by minority business enterprises (MBE) in Department of Transportation programs
set forth at 49 C.F.R. Part 23. Pursuant to the requirements of 49 C.F.R. § 23.43, the
following clauses must be inserted in each third party contract:
(i) pQLICY. IT IS THE POLICY OF THE DEPARTMENT OF TRANS-
PORTATION THAT MINORITY BUSINESS ENTERPRISES, AS DEFINgT) 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.
(ii) 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 FINANCF~D IN WHOLE OR IN PART WITH FF~DERAL FUNDS
PROVIDED UNDER THIS AGREEMENT. IN THIS REGARD ALL AGENCIES
AND CONTRACTORS SHALL TAKE ALL NECESSARY AND REASONABLE
STEPS IN ACCORDANCE WITH 49 C.F.R. PART 23 TO ENSURE THAT
MINORITY BUSINESS ENTERPRISES HAVE THE MAXIMUM OPPORTUNITY
TO COMPETE FOR AND PERFORM CONTRACTS. AGENCY AND ITS
CONTRACTORS SHALL NOT DISCRIMINATE ON THE BASIS OF RACE,
COLOR, NATIONAL ORIGIN OR SEX IN THE AWARD AND PERFORMANCE
OF CONTRACTS ASSISTED BY THE DEPARTMENT OF TRANSPORTATION.
(b) The Agency shall advise each sub-recipient, contractor, and subcontractor
that failure to carry out the requirements set forth in 49 C.F.R. § 23.43(a) shall constitute a
breach of contract and, after the notification of the Department of Transportation, may result in
termination of the Agreement or contract by the Agency or such remedy as the Agency deems
appropriate.
(c) The Agency shall take action concerning lessees as follows:
(i) The Agency shall not exclude MBEs from participation in business
opportunities by entering into long-term, exclusive agreements with non-MBEs for the operation
of major transportation-related activities for the provision of goods and services to the facility
or to the public on the facility.
(ii) If the Agency is required to submit affirmative action programs
under 49 C.F.R. § 23.41(a)(2) or 49 C.F.R. § 23.41(a)(3) and has business opportunities for
lessees, it shall submit for approval to the Department of Transportation with its programs
PAGE 16
overall goals for the participation as lessees of fitais owned and controlled by MBEs. These
goals shall be for a specified period of time and shall be based on the factors listed in 49 C.F.R.
§ 23.4:5 (g)(5). The Agency shall review these goals at least annually, and whenever they
expire, analyzing projected versus actual MBE participation during the period covered by the
review and any changes in factual circumstances affecting the selection of goals. Following each
review, the Agency shall submit new overall goals to the Department of Transportation for
approval. If Agency fails to meet its goals for MBE lessees, it shall demonstrate to the City and
the Government in writing that it made reasonable efforts to meet the goals.
(iii) Except as provided in this section, the Agency is required to include
lessees in affmmafive action programs. Lessees themselves are not subject to the requirements
of this Part, except for the requirement under 49 C.F.R. § 23.7 that lessees avoid discrimination
against MBEs.
3. Title VI Civil Rights Act of 1964. The Agency shall comply and shall assure
the compliance by contractors and subcontractors under this Project with all requirements of
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; Department of Transportation
regulations, "Nondiscrimination in Federally-Assisted Programs of the Department of
Transportation - Effectuafion of Title VI of the Civil Rights Act," 49 C.F.R. Part 21; and the
Assurance by the Agency pursuant thereto.
4. Nondiscrimination on the Basis of Handicap. The Agency shall ensure that all
£uted facility construction or alteration and all new equipment included in the Project shall
comply with Department of Transportation regulations, 'Nondiscrimination on the Basis of
Handicap in Programs and Activities, Receiving or Benefitting from Federal Financial
Assistance," 49 C.F.R. Part 27, and UMTA regulations, 'Transportation for Elderly and
Handicapped Persons," 49 C.F.R. Part 609, and any amendments thereto that may be issued.
5. Competition in Procurement. The Agency agrees to comply with the
Procurement Standards requirements set forth at 49 C.F.R. § 18.36 or OMB Circular A-Il0,
Attachment O, as may be applicable; and with any supplementary directives or regulations
including UMTA Circular 4220. lB; and any revisions thereof, as may be applicable. UMTA
reserves the right to review the Agency's technical specifications and requirements, where such
review is necessary for proper Project administration. The Agency further agrees that, notwith-
standing the requirements of Section 121 of Part II of the City's Agreement with the
Government, no Federal funds shall be used to support procurements utilizing exclusionary or
discriminatory specifications.
6. FQrce Account. The City and Government (UMTA) reserves the right to
determine the extent of its participation in force account costs.
7. Settlement of Third Party Contract Disputes or Breaches. The U.S. Government
has a vested interest in the settlement of any dispute, default, or breach involving any federally-
assisted third party contract. Agency agrees that the Government retains the right to a
proportionate share, based on the percentage of the Federal share committed to the Project, of
any proceeds derived from any third party recovery. Therefore the Agency shall avail itself of
PAGE 17
all legal rights available under any third party contract. The Agency shall notify the City and
Government of any current or prospective litigation or major disputed claim pertaining to any
third party contract. The City and Government reserves the right to concur in any compromise
or settlement of any claim by the Agency involving any third party contract. If the third party
contract contains a liquidated damages provision, any liquidated damages recovered shall be
credited to the Project account involved unless the Government permits otherwise. In the event
the Agency wishes to join the Government as a named party to litigation, for any reason, the
Agency agrees to inform the City Government before doing so; this proviso applies to any type
of litigation whatsoever, in any forum.
8. Ethics. The Agency shall maintain a written code or standards of conduct that
shall govern the performance of its officers, employees, board members, or agents engaged in
the award and administration of contracts supported by Federal funds. Such code or standards
shall provide that no employee, officer, board member, or agent of the Agency may participate
in the selection, award, or administration of a contract supported by Federal funds if a conflict
of interest, real or apparent, would be involved. Such a conflict would arise when any of the
parties set forth below has a financial or other interest in the firm selected for award:
(i) The employee, officer, board member, or agent;
(ii) Any member of his or her immediate family;
(iii) His or her partner; or
(iv) An organization that employs, or is about to employ, any of the above.
The code or standards shall also provide that the Agency's officers, employees, board
members, or agents may neither solicit nor accept gratuities, favors or anything of monetary
value from present or potential contractors or sub-recipients. The Agency may set minimum
rules where the financial interest is not substantial or the gift is an unsolicited item of nominal
intrinsic value. As permitted by State or local law or regulations, such code or standards shall
provide for penalties, sanctions, or other disciplinary actions for violations by the Agency's
officers, employees, board members, or agents, or by contractors or sub-recipients or their
agents.
9. Interest of Members of or Delegates to Congress. No member of or delegate
to the Congress of the United States shall be admitted to any share or part of this Project or to
any benefit therefrom.
U. CONSTRUCTION CONTRACTS
The following provisions are applicable to federally assisted construction contracts:
1. Nondiscrimination. Pursuant to the regulations of the Secretary of Labor at
41 C.F.R. §§ 60-1.4(b)(1) and 60-1.4(c):
PAGE 18
(a) The Agency hereby agrees that it will incorporate or cause to be
incorporated into any contract for construction work, or modification thereof, as defmed in the
regulations of the Secretary of Labor at 41 C.F.R. Chapter 60, that is paid for in whole or in
part with funds obtained from the Federal Government or borrowed on the credit of the Federal
Government pursuant to a grant, cooperative agreement, contract, loan, insurance, or g~arantee,
or undertaken pursuant to a Federal program involving the grant, cooperative agreement,
contract, loan, insurance, or guarantee, the following equal opportunity clause:
DURING THE PERFORMANCE OF THIS CONTRACT, THE CONTRACTOR
AGREES AS FOLLOWS:
(i) THE CONTRACTOR WILL NOT DISCRIMINATE AGAINST ANY
EMPLOYEE OR APPLICANT FOR EMPLOYMENT BECAUSE OF RACE,
COLOR, RELIGION, SEX, OR NATIONAL ORIGIN. THE CONTRACTOR
WILL TAKE AFFIRMATIVE ACTION TO ENSURE THAT APPLICANTS ARE
EMPLOYED, AND THAT EMPLOYEES ARE TREATED DURING EMPLOY-
MF~NT WITHOUT REGARD TO THEIR RACE, COLOR, RELIGION, SEX, OR
NATIONAL ORIGIN. SUCH ACTION SHALL INCLUDE, BUT NOT BE
LIM1TED 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 AGREFS TO POST IN CONSPICU-
OUS PLACES, AVAILABLE TO EMPLOYEES AND APPLICANTS FOR
EMPLOYMENT, NOTICES TO BE PROVIDF~D SETTING FORTH THE PRO-
VISIONS OF THIS NONDISCRIMINATION CLAUSE.
(ii) 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.
(iii) THE CONTRACTOR WILL SEND TO EACH LABOR UNION OR
REPRESENTATIVE OF WORKERS WITH WHICH IT HAS A COLLECTIVE
BARGAINING AGREEMENT OR OTHER CONTRACT OR UNDERSTANDING,
A NOTICE TO BE PROVIDED ADVISING THE LABOR UNION OR WORK-
ERS' REPRESENTATIVE OF THE CONTRACTOR'S COMMITMENTS UNDER
SECTION 202 OF EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, AND
SHALL POST COPIES OF THE NOTICE IN CONSPICUOUS PLACES
AVAILABLE TO EMPLOYEES AND APPLICANTS FOR EMPLOYMENT.
(iv) THE CONTRACTOR WILL COMPLY WITH ALL PROVISIONS OF
EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, AND OF THE RULES,
REGULATIONS, AND RELEVANT ORDERS OF THE SECRETARY OF
LABOR.
PAGE 19
(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.
(vi) IN THE EVENT OF THE CONTRACTOR'S NONCOMPLIANCE WITH
THE NONDISCRIMINATION CLAUSES OF THIS AGREEMENT OR WITH
ANY OF SUCH RULES, REGULATIONS, OR ORDERS, THIS AGREEMENT
MAY BE CANCELLED, TERMINATED, OR SUSPENDED IN WHOLE OR IN
PART AND THE CONTRACTOR MAY BE DECLARED INELIGIBLE FOR
FURTHER FEDERAL OR FEDERALLY ASSISTED CONTRACTS IN ACCOR-
DANCE WITH PROCEDURES AUTHORIZED IN EXECUTIVE ORDER 11246
OF SEPTEMBER 24, 1965, AND SUCH OTHER SANCTIONS MAY BE
IMPOSED AND REMEDIES INVOKED AS PROVIDED IN EXECUTIVE
ORDER 11246 OF SEPTEMBER 24, 1965, OR BY RULE, REGULATION, OR
ORDER OF THE SECRETARY OF LABOR, OR AS OTHERWISE PROVIDED
BY LAW.
(vii) 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 UlvlTA 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 prime contractor and
subcontractor shall include in each nonexempt contract the requirements of Subsection 115. a.
(1) (a) through (g) of Part II of this Agreement.
(c) The Agency further agrees that it will be bound by this equal opportunity
clause with respect to its own employment practices when it participates in federally assisted
construction work; provided that if the Agency so participating is a State or local government,
PAGE 20
this equal opportunity clause does not apply to any agency, instrumentality or subdivision of
such government that does not participate in work under the Agreement.
(d) The Agency agrees that it will assist and cooperate actively with UMTA
and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with
the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of
Labor; that it will provide UMTA and the Secretary of Labor such information as they may
require for the supervision of such compliance; and that it will otherwise assist UMTA in dis-
charging its primary responsibility for securing compliance.
(e) The Agency further agrees that it will refrain from entering into any
contract or contract modification subject to Executive Order 11246 of September 24, 1965, as
amended, with any contractor that is debarred from or has not demonstrated eligibility for Gov-
ernment contracts and federally assisted construction contracts pursuant to the Executive Order;
and will carry out such sanctions and penalties for violation of the equal opportunity clause as
may be imposed upon contractors and subcontractors by UMTA or the Secretary of Labor
pursuant to Part II, Subpart D of the Executive Order. In addition, the Agency agrees that if
it fails or refuses to comply with these undertakings, UMTA may take any or all of the
following actions: Cancel, terminate, or suspend in whole or in part this Agreement; refrain
from extending any further assistance to the Agency under the program with respect to which
the failure or refusal occurred until satisfactory assurance of future compliance has been received
from such Agency; and refer the case to the Department of Justice for appropriate legal
proceedings.
2. S_mx:ifications. The Agency hereby agrees that it will incorporate or cause to
be incorporated the specifications set forth below into all Federal or federally assisted
construction contracts, or modifications thereof, in excess of $10,000 to be performed in
geographical areas designated by the Director, Office of Federal Contract Compliance Programs
of the Department of Labor pursuant to the regulations of the Secretary of Labor at 41 C.F.R.
§ 60-4.3 and in construction subcontracts in excess of $10,000 necessary in whole or in part to
the performance of nonconstruction Federal contracts and subcontracts covered under Executive
Order 11246:
STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUC-
TION CONTRACT SPECIFICATIONS (EXECUTIVE ORDER 11246):
(1) AS USED IN THESE SPECIFICATIONS:
(a) "COVERED AREA" MEANS THE GEOGRAPHICAL AREA DE-
SCRIBED IN THE SOLICITATION FROM WHICH THIS CONTRACT
RESULTED;
(b) "DIRECTOR" MEANS DIRECTOR, OFFICE OF FEDERAL
CONTRACT COMPLIANCE PROGRAMS, UNITED STATES DEPARTMENT
OF LABOR, OR ANY PERSON TO WHOM THE DIRECTOR DELEGATES
AUTHORITY;
PAGE 21
(c) UEMPLOYER IDENTIFICATION NUMBERu MEANS THE
FEDERAL SOCIAL SECURITY NUMBER USED ON THE EMPLOYER'S
QUARTERLY FEDERAL TAX RETURN, U.S. TREASURY DEPARTMENT
FORM 941;
(d) "MINORITY" INCLUDES:
(i) BLACK (ALL PERSONS HAVING ORIGINS IN ANY OF
THE BLACK AFRICAN RACIAL GROUPS NOT OF HISPANIC ORIGIN);
(ii) HISPANIC (ALL PERSONS OF MEXICAN, PUERTO
RICAN, CUBAN, CENTRAL OR SOUTH AMERICAN OR OTHER SPANISH
CULTURE OR ORIGIN, REGARDLESS OF RACE);
(iii) ASIAN AND PACIFIC ISLANDER (ALL PERSONS
HAVING ORIGINS IN ANY OF THE ORIGINAL PEOPLES OF THE FAR
EAST, SOUTHEAST ASIA, THE INDIAN SUBCONTINENT, OR THE PACIFIC
ISLANDS); AND
(iv) AMERICAN INDIAN OR ALASKAN NATIVE (ALL
PERSONS HAVING ORIGINS IN ANY OF THE ORIGINAL PEOPLES OF
NORTH AMERICA AND MAINTAINING IDENTIFIABLE TRIBAL AFFILIA-
TIONS THROUGH MEMBERSHIP AND PARTICIPATION OR COMMUNITY
IDENTIFICATION).
(2) WHENEVER THE CONTRACTOR, OR ANY SUBCONTRACTOR AT
ANY TIER, SUBCONTRACTS A PORTION OF THE WORK INVOLVING ANY
CONSTRUCTION TRADE, IT SHALL PHYSICALLY INCLUDE IN EACH
SUBCONTRACT IN EXCESS OF $10,000 THE PROVISIONS OF THESE
SPECIFICATIONS AND THE NOTICE WHICH CONTAINS THE APPLICABLE
GOALS FOR MINORITY AND FEMALE PARTICIPATION AND WHICH IS
SET FORTH IN THE SOLICITATIONS FROM WHICH THIS CONTRACT
RESULTED.
(3) IF THE CONTRACTOR IS PARTICIPATING (PURSUANT TO 41
C.F.R. § 60-4.5) IN A HOMETOWN PLAN APPROVED BY THE U.S.
DEPARTMENT OF LABOR IN THE COVERED AREA, EITHER INDIVIDUAL-
LY OR THROUGH AN ASSOCIATION, ITS AFFIRMATIVE ACTION
OBLIGATIONS ON ALL WORK IN THE PLAN AREA (INCLUDING GOALS
AND TIMETABLES) SHALL BE IN ACCORDANCE WITH THAT PLAN FOR
THOSE TRADES WHICH HAVE UNIONS PARTICIPATING IN THE PLAN.
CONTRACTORS MUST BE ABLE TO DEMONSTRATE THEIR PARTICIPA-
TION IN AND COMPLIANCE WITH THE PROVISIONS OF ANY SUCH
HOMETOWN PLAN. EACH CONTRACTOR OR SUBCONTRACTOR
PARTICIPATING IN AN APPROVED PLAN IS INDIVIDUALLY REQUIRED
TO COMPLY WITH ITS OBLIGATIONS UNDER THE EEO CLAUSE, AND TO
PAGE 22
MAKE A GOOD FAITH EFFORT TO ACHIEVE EACH GOAL UNDER THE
PLAN IN EACH TRADE IN WHICH IT HAS EMPLOYF~ES. 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 IMPLEMF~NT THE SPECIFIC AFFIR-
MATIVE ACTION STANDARDS PROVIDED IN PARAGRAPHS (7) (a)
THROUGH (p) OF THESE SPECIFICATIONS. THE GOALS SET FORTH IN
THE SOLICITATION FROM WHICH THIS CONTRACT RESUL~ 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.
PAGE 23
(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
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 PERSONNF. L
ARE AWARE OF AND CARRY OUT THE CONTRACTOR'S OBLIGATION TO
MAINTAIN SUCH A WORKING ENVIRONMENT, WITH SPECIFIC ATrEN-
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 RECR~ SOURCES, PROVIDE WRITrEN NOTICE
TO MINORITY AND FEMALE RECRUITMENT SOURCES AND TO COMMU-
NITY ORGANIZATIONS WHEN THE CONTRACTOR OR Frs UNIONS HAVE
EMPLOYMENT OPPORTUNITIES AVAILABLE, AND MAINTAIN A RECORD
OF THE ORGANIZATIONS' RESPONSES.
(c) MAINTAIN A CURRENT FILE OF THE NAMES, ADDRESSES
AND TF.I.EPHONE 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 WRITrEN 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.
PAGE 24
(e) DEV~-!.OP ON-THE-lOB TRAINING OPPORTUNITIES AND/OR
PARTICIPATE IN TRAINING PROGRAMS FOR THE AREA WHICH EXPRESS-
LY INCLUDE MINORITIES AND WOMEN, INCLUDING UPGRADING
PROGRAMS AND APPRENTICESHIP AND TRAINEE PROGRAMS R~.EVANT
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)Co) ABOVE.
(f) DISSEMINATE THE CONTRACTOR'S EEO POLICY BY
PROVIDING NOTICE OF THE POLICY TO UNIONS AND TRAINING
PROGRAMS AND REQUESTING THEIR COOPERATION IN ASSISTING THE
CONTRACTOR IN MEETING rrsEEO 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 EFO
POLICY AND AFFIRMATIVE ACTION OBLIGATIONS UNDER THESE
SPECIFICATIONS WITH ALL EMPLOYEES HAVING RESPONSIBILITY FOR
HIRING, ASSIGNMENT, LAYOFF, TERMINATION OR OTHER EMPLOY-
MENT DECISIONS INCLUDING SPECIFIC REVIEW OF THESE ITEMS WITH
ON-SITE SUPERVISORY PERSONNEL SUCH AS SUPERINTENDENTS,
GENERAL FOREMAN, ETC., PRIOR TO THE INITIATION OF CONSTRUC-
TION WORK AT ANY JOB SITE. A WRITrEN RECORD SHALL BE MADE
AND MAINTAINED IDENTIFYING THE TIME AND PLACE OF THESE
MEETINGS, PERSONS ATI'ENDING, SUBJECT MATTER DISCUSSED, AND
DISPOSITION OF THE SUBJECT MAITER.
(h) DISSEMINATE THE CONTRACTOR'S EEO POLICY EXTER-
NALLY BY INCLUDING IT IN ANY ADVERTISING IN THE NEWS MEDIA,
SPECIFICALLY INCLUDING MINORITY AND FEMALE NEWS MEDIA, AND
PROVIDING WRITTEN NOTIFICATION TO AND DISCUSSING THE
CONTRACTOR'S EEO POLICY WITH OTHER CONTRACTORS AND
SUBCONTRACTORS WITH WHOM THE CONTRACTOR DOES OR ANTICI-
PATES DOING BUSINESS.
(i) DIRECT RECRUITMENT EFFORTS, BOTH ORAL AND
WRITTEN, TO MINORITY, FEMALE AND COMMUNITY ORGANIZATIONS,
TO SCHOOLS WITH MINORITY AND FEMALE STUDENTS AND TO
MINORITY AND FEMALE RECRUITMENT AND TRAINING ORGANIZA-
TIONS SERVING THE CONTRACTOR'S RECRUITMENT AREA AND
PAGE 25
EMPLOYMENT NF. FY)S. NOT LATER THAN ONE MONTH PRIOR TO THE
DATE FOR THE ACCEPTANCE OF APPLICATIONS FOR APPRENTICESHIP
OR OTI4FR TRAINING BY ANY RECRUITMENT SOURCE, THE CONTRAC-
TOR SHALL SEND WR_rlTEN NOTICE TO ORGANIZATIONS SUCH AS THE
ABOVE, DESCRIBING THE OPENINGS, SCREENING PROCEDURES, AND
TESTS TO BE USED IN THE SELECTION PROCESS.
(j) ENCOURAGE PRESENT MINORITY AND FEMALE 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
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-
F~ES 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-
lNG ALL PERSONNF~I. 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.
PAGE 26
(8) CONTRACTORS ARE ENCOURAGED TO PARTICIPATE IN
VOLUNTARY ASSOCIATIONS THAT ASSIST IN FULFILLING ONE OR
MORE OF THF. IR AFFIRMATIVE ACTION OBLIGATIONS SET FORTH IN
PARAORAPHS (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, PROVIDF-D THAT THE
CONTRACTOR ACTIVELY PARTICIPATES IN THE GROUP, MAKES EVERY
EFFORT TO ASSURE THAT THE GROUP HAS A POSITIVE IMPACT ON THE
EMPLOYMENT OF MINORITIES AND WOMEN IN THE INDUSTRY,
ENSURES THAT THE CONCRETE BENEFITS OF THE PROGRAM ARE
REFLECTF. D 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 REQUIP~.D 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 1TS 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-
PAGE 27
TION AND CANCELLATION OF EXISTING SUBCONTRACTS AS MAY BE
IMPOSED OR ORDERED PURSUANT TO EXECUTIVE ORDER 11246, AS
AMENDED, AND ITS IMPLEMEHTING 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 AFFIRMA~
ACTION STEPS, AT LEAST AS EXTENSIVE AS THOSE STANDARDS
PRESCRIBED IN PARAGRAPH (7) OF THESE SPECIFICATIONS, SO AS TO
ACHIEVE MAXIMUM RESULTS FROM ITS EFFORTS TO ENSURE EQUAL
EMPLOYMENT OPPORTUNITY. IF THE CONTRACTOR FAILS TO COMPLY
WITH THE REQUIREMENTS OF THE EXECUTIVE ORDER, THE IMPLE-
MENTING REGULATIONS, OR THESE SPECIFICATIONS, THE DIRECTOR
SHALL PROCEF. D IN ACCORDANCE WITH 41 C.F.R. § 604.8.
(14) THE CONTRACTOR SHALL DESIGNATE A RESPONSIBLE
OFFICIAL TO MONITOR ALL EMPLO~ REI.ATF. D 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., MF~HANIC,
APPRENTICE TRAINEE, HELPER, OR LABORER), DATES OF CHANGES IN
STATUS, HOURS WORKED PER WEEK IN THE INDICATF. D TRADE, RATE
OF PAY, AND LOCATIONS AT WHICH THE WORK WAS PERFORMED.
RECORDS SHALL BE MAINTAINED IN AN EASILY UNDERSTANDABLE
AND RETRIEVABLE FORM; HOWEVER, TO THE EXTENT THAT EXISTING
RECORDS SATISFY THIS REQUIREMENT, CONTRACTORS SHALL NOT BE
REQUIRED TO MAINTAIN SEPARATE RECORDS.
(15) NOTHING HEREIN PROVIDED SHALL BE CONSTRUED AS A
LIMITATION UPON THE APPLICATION OF OTHER LAWS THAT ESTAB-
LISH DIFFERENT STANDARDS OF COMPLIANCE OR UPON THE APPLICA-
TION OF REQUIREMENTS FOR THE HIRING OF LOCAL OR OTHER AREA
RESIDENTS (E.G., THOSE UNDER THE PUBLIC WORKS EMPLOYMENT
ACT OF 1977 AND THE COMMUNITY DEVELOPMENT BLOCK GRANT
PROGRAM).
3. Notice. The Agency hereby agrees that it will ensure that the notice set forth
below shall be included in, and shall be a part of, all solicitations for offers and bids on all
Federal and federally assisted construction contracts or subcontracts in excess of $10,000 to be
PAGE 28
perfofaied in geographical areas designated by the Director, Office of Federal Contract
Compliance Programs of the Department of Labor at 41 C.F.R. § 60-4.2:
NOTICE OF REQUIR MENT FOR AFFIRMATIVE ACTION TO ENSURE
EQUAL EMPLOYMENT OPPORTUNITY (EXECUTIVE ORDER 11246):
(1) THE OFFEROR'S OR BIDDER'S ATTENTION IS CALLF~D TO THE
"EQUAL OPPORTUNITY CLAUSE" AND THE "STANDARD FEDERAL
EQUAL EMPLOYMENT SPECIFICATIONS" SET FORTH HERF. rN.
(2) (a) THE GOALS AND THE TIMETABLES FOR MINORITY AND
FEMALE PARTICIPATION, EXPRESSED IN PERCENTAGE TERMS FOR THE
CONTRACTOR'S AGGREOATE WORK FORCE IN EACH TRADE ON ALL
CONSTRUCTION WORK IN THE COVERED AREA, ARE AS FOLLOWS:
TIMETABLES GOALS FOR MINORITY GOALS FOR FEMALE
PARTICIPATION IN PARTICIPATION IN
EACH TRADE EACH TRADE
INSERT GOALS FOR INSERT GOALS FOR
EACH YEAR EACH YEAR
(b) THESE GOALS ARE APPLICABLE TO ALL THE CONTRAC-
TOR'S CONSTRUCTION WORK (WHETHER OR NOT IT IS FEDERAL OR
FF~DERALLY ASSISTED) PERFORMED IN THE COVERED AREA. IF THE
CONTRACTOR PERFORMS CONSTRUCTION WORK IN A GEOGRAPHICAL
AREA LOCATED OUTSIDE OF THE COVERED ARFA, IT SHALL APPLY
THE GOALS ESTABLISHED FOR SUCH GEOGRAPHICAL AREA WHRRE
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 NONFF~ERALLY INVOLVED
CONSTRUCTION.
(¢) 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 1TS
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
PAGE 29
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 604. COMPLIANCE
WITH THE GOALS WILL BE MEASURED AGAINST THE TOTAL WORK
HOURS PERFORMED.
(3) THE CONTRACTOR SHALL PROVIDE WR1TFEN 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
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 USF. D IN THIS NOTICE, AND IN THE CONTRACT RESULTING
FROM THIS SOLICITATION, THE HCOVERED AREAH IS (INSERT DESCRIP-
TION OF THE GEOGRAPHICAL AREAS WHERE THE CONTRACT IS TO BE
PERFORMED, GIVING THE STATE, COUNTY AND CITY, IF ANY).
4. Accommodations for the Physically Handicapped. UMTA assisted
construction, designs, and alterations shall be undertaken in accordance with and meet the
requirements of the provisions of General Services Administration (GSA) regulations set forth
at 41 C.F.R. Subpart 101-19.6, unless an exception is granted in writing by UMTA or a waiver
is granted in writing by GSA.
5. ~. The Agency shall follow the requirements of 49 C.F.R. §
18.36(h) or OMB Circular A-110, Attachment B, as applicable, and Federal (UMTA) guidelines
with regard to bid guarantees and bonding requirements.
6. Si§ns. The Agency shall cause to be erected at the site of construction, and
maintained during construction, signs satisfactory to the Department of Transportation identifying
the Project and indicating that the Government is participating in the development of the Project.
7. Safe~ Standards. Pursuant to section 107 of the Contract Work Hours and
Safety Standards' Act and Department of Labor regulations set forth at 29 C.F.R. § 1926, no
laborer or mechanic working on a construction contract shall be required to work in
surroundings or under working conditions that are unsanitary, hazardous, or dangerous to his
or her health and safety as determined under construction and health standards promulgated by
the Secretary of Labor.
8. Liquidated Damages. The Agency shall include in all contracts for construction
a clause providing for liquidated damages, where appropriate. Liquidated damages clauses are
PAGE 30
appropriate if the parties may reasonably expect to suffer damages (increased costs On the
Project involved) from the late completion of the construction and the extent or amount of such
damages would be difficult or impossible to determine. The assessment for damages shall be
at a specific rate per day for each day of overrun in contract time; and the rate must be specified
in the third party contract. Any liquidated damages recovered shall be credited to the Project
account involved unless the Government permits otherwise.
V. Pursvont to regulations set forth at 29 C.F.R. Part 5, the following provisions shall
be incorporated in each construction contract of $25,000 let by the Agency in carrying out the
Project.
1. MINIMUM WAGES.
(a) ALL LABORERS AND MECHANICS EMPLOYEr) OR
WORKING UPON THE SITE OF THE WORK (OR UNDER THE UNITi~J)
STATES HOUSING ACT OF 1937 OR UNDER THE HOUSING ACT OF 1949
IN THE CONSTRUCTION OR DEVEI.OPMENT OF THE PROJECT), WILL BE
PAID UNCONDITIONALLY AND NOT LESS OFTEN THAN ONCE A WEEK,
AND WITHOUT SUBSEQUENT DEDUCTION OR RERATE ON ANY
ACCOUNT (EXCEPT SUCH PAYROLL DEDUCTIONS AS ARE PERMITrED
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 BENEFrrs (OR CASH EQUIVALENTS THEREOF) DUE
AT THE TIME OF PAYMENT COMPUTED AT RATES NOT LESS THAN
THOSE CONTAINg. D IN THE WAGE DETERMINATION OF THE SECRE-
TARY OF LABOR WHICH IS ATrACHED HERETO AND MADE A PART
HEREOF, REGARDLESS OF ANY CONTRACTUAL RELATIONSHIP WHICH
MAY BE ALLEGF. r) TO EXIST BETWF~EN THE CONTRACTOR AND SUCH
LABOllRRS 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)(iv);
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 INCURgRD 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
PAGE 31
THE TIME SPENT IN EACH CLASSIFICATION IN WHICH WORK IS
PERFORMED. THE WAGE DETERMINATION (INCLUDING ANY ADDI-
TIONAL CLASSIFICATION AND WAGE RATES CONFORM~J3 ~ER 29
C.F.R. § 5.5(a) (1) (ii) AND THE DAVIS-BACON POSTER (WH-1321) SHALL
BE POSTED AT ALL TIMES BY THE CONTRACTOR AND ITS 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
DE'rERMINATION. THE CONTRACTING OFFICER SHALL APPROVE AN
ADDITIONAL CLASSIFICATION AND WAGE RATE AND FRINGE BENEFITS
THEREFOR ONLY WI-IEN THE FOLLOWING CRITERIA HAVE BEEN MET:
a. THE WORK TO BE PERFORMF~D BY THE CLASSIFICA-
TION REQUEST~D 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 REPRF~ENTATIVES, 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
PAGE 32
AMOUNT DESIGNATED FOR FRINGE BENEFITS, WHERE APPROPRIATE),
THE CONTRA~G OFFICER SHALL REFER THE QUESTIONS INCLUDING
THE VIEWS OF ALL INTERESTED PARTIES AND THE RECOMMI~NDATION
OF THE CONTRACTING OFFICER, TO THE ADMINISTRATOR FOR
DETERMINATION. THE ADMINISTRATOR, OR AN AUTHORIZED
REPRESENTATIVE, WILL ISSUE A DETERMINATION WITHIN 30 DAYS OF
RECF~IPT AND SO ADVISE THE CONTRACTING OFFICER OR WILL NOTIFY
THE CONTRACTING OFFICER WITHIN THE 30-DAY PERIOD THAT
ADDITIONAL TIME IS NECESSARY.
4. THE WAGE RATE (INCLUDING FRINGE BENEFITS
WHERE APPROPRIATE) DETERMINED PURSUANT TO 29 C.F.R. § 5.5(a) (i)
(1) (B) OR 29 C.F.R. § 5.5(a) (i) (1) (C), SHALL BE PAID TO ALL WORKERS
PERFORMING WORK IN THE CLASSIFICATION UNDER THIS CONTRACT
FROM THE FIRST DAY ON WHICH WORK IS PERFORMED IN THE
CLASSIFICATION.
(c) WHF~NEVER THE MINIMUM WAGE RATE PRESC~F~r) IN
THE CONTRACT FOR A CLASS OF LABORERS OR MECHANICS INCLUDES
A FRINGE BENEFIT WHICH IS NOT EXPRESSEr) 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
FF.r)ERAL CONTRACT WITH THE SAME AGENCY OR ANY OTHF. R
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,
PAGE 33
EMPLO~ 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, EMPLOYFJ~ 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 NF_~2ESSARY TO CAUSE THE SUSPENSION OF ANY
FURTHER PAYMENT, ADVANCE, OR GUARANTEE OF FUNDS UNTIL
SUCH VIOLATIONS HAVE CEASED.
3. PAYROL~ AND BASIC RECORDS. (a) PAYROLLS AND BASIC
RECORDS RELATING THERETO SHALL BE MAINTAIN~D BY THE
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
UN1TF23 STATES HOUSING ACT OF 1937, OR UNDER THE HOUSING ACT
OF 1949, IN THE CONSTRUCTION OR DEVELOPMENT OF THE PROJECT).
SUCH RECORDS SHALL CONTAIN THE NAME, ADDRESS, AND SOCIAL
SECURITY NUMBER OF EACH SUCH WORKER, HIS OR HER CORRECT
CLASSII~ICATION, HOURLY RATES OF WAGES PAID (INCLUDING RATES
OF CONTRIBUTIONS OR COSTS ANTICIPATF~D 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
WF. FKLY NUMBER OF HOURS WORKED, DEDUCTIONS MADE AND
ACTUAL WAGF-q 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 WR1TrEN 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.
PAGE 34
(b) 1. THE CONTRACTOR SHALL SUBMIT WF.F. KLY FOR
EACH WEEK IN WHICH ANY CONTRACT WORK IS PERFORMI~.D 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
SUBMI'FFF. D SHALL SET OUT ACCURATF~Ly AND COMPLETF. I-Y ALL OF
THE INFORMATION REQUIRF-D TO BE MAINTAINF-D UNDER 29 C.F.R. §
fi.fi(a) (3) (i). THIS INFORMATION MAY BE SUBMITFED IN ANY FORM
DESIRED. OPTIONAL FORM WH-347 IS AVAILABLE FOR THIS PURPOSE
AND MAY BE PURCHASF. D 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.
2. EACH PAYROLL SUBMITTED SHALL BE ACCOMPA-
NIED BY A "STATEMENT OF COMPLIANCE," SIGNF. D 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 MAINTAINF. D
UNDER 29 C.F.R. § 5.5 (a) (3) (i) 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
PAGE 35
SUBMISSION OF THE "STATEMENT OF COMPLIANCE" REQUIRED BY
C.F.R. § 5.5(a) (3) (2) (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
31 U.S.C. § 231.
(¢) THE CONTRACTOR OR SUBCONTRACTOR SHALL MAKE
THE RECORDS REQUIRED UNDER 29 C.F.R. § 5.5(a) (3) (i) AVAILABLE
FOR INSPECTION, COPYING, OR TRANSCRIPTION BY AUTHORIZED
REPRESENTATIVES OF UMTA OR THE DEPARTMENT OF LABOR, AND
SHALL PERMIT SUCH REPRESENTATIVES TO INTERVIEW EMPLOYF~F.5
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 FURTI-IF~R
PAYMF~NT, 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 PERFORMF. r} WHF~N THEY ARE EMPLOYF~D 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-
PAGE 36
MINATION FOR THE CLASSIFICATION OF WORK ACTUALLY PER-
FORMI=.D. IN ADDITION, ANY APPRENTICE PERFORMING WORK ON THE
JOB SITE IN EXCESS OF THE RATIO PERMITrF. D UNDER THE REGIS-
TERF. D 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 (EXPRF_~SF.D
IN PERCENTAGES OF THE JOURNEYMAN'S HOURLY RATE) SPECIFIED
IN THE CONTRACTOR'S OR SUBCONTRACTOR'S REGISTF_,RF.D PROGRAM
SHALL BE OBSERVED. EVERY APPRENTICE MUST BE PA~D 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 SPEClFIF~D 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
FOR THE APPLICABLE CLASSIFICATION. IF THE ADMINISTRATOR
DETERMINF~ 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 APPRF~NTICESHIP PROGRAM, THE CONTRACTOR WILL
NO LONGER BE PERM1TTF. D TO UTILIZE APPI~F~NTICES AT LESS THAN
~ 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 PERMITrED TO WORK AT LESS THAN THE
PREDETERMINED RATE FOR THE WORK PERFORMED UNLESS THEY ARE
EMPLOYED PURSUANT TO AND INDIVIDUALLY REGISTERED IN A
PROGRAM WHICH HAS RECEIVED PRIOR APPROVAL, EVIDENCED BY
FORMAL CERTIFICATION BY THE U. S. DEPARTMENT OF LABOR,
EMPLOYMENT AND TRAINING ADMINISTRATION. THE RATIO OF
TRAINEES TO JOURNEYMEN ON THE JOB SITE SHALL NOT BE GREATER
THAN PERMITTED UNDER THE PLAN APPROVED BY THE EMPLOYMENT
AND TRAINING ADMINISTRATION. EVERY TRAINEE MUST BE PAID AT
NOT LESS THAN THE RATE SPECIFIED IN THE APPROVED PROGRAM
FOR THE TRAINEE'S LEVEL OF PROGRESS, EXPRESSED AS A PERCENT-
AGE OF THE JOURNEYMAN HOURLY RATE SPECIFIED IN THE APPLICA-
BLE WAGE DETERMINATION. TRAINEES SHALL BE PAID FRINGE
BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE TRAINEE
PROGRAM. IF THE TRAINEE PROGRAM DOES NOT MENTION FRINGE
PAGE 37
BENEFITS, TRAINEF_~ SHALL BE PAID THE FULL AMOUNT OF FRINGE
BENF. FITS LISTF~D ON THE WAGE DETERMINATION UNLESS THE
ADMINISTRATOR OF THE WAGE AND HOUR DMSION DETFAhMINF~
THAT THERE IS AN APPRENTICESHIP PROGRAM ASSOCIATF. D 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
TRAINF. F. 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
PERMTITED TO UTILIZE TRAINEES AT LESS THAN THE APPLICABLE
PREDErERMINF. D 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 REQUIRF~MENTS OF EXECUTIVE ORDER 11246, AS
AMENDED, AND 29 C.F.R. PART 30.
5. COMPLIANCE WITH COPELAND ACT REOUIREMENT$. 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
~. ALL RULINGS AND INTERPRETATIONS OF THE DAVIS-
BACON AND RELATED ACTS CONTAINED IN 29 C.F.R. PARTS 1, 3, AND
5 ARE INCORPORATED HEREIN BY REFERENCE.
8. DISPUTES CONCERNING LABOR STANDARDS. DISPUTES
ARISING OUT OF THE LABOR STANDARDS PROVISIONS OF THIS
CONTRACT SHALL NOT BE SUBJECT TO THE GENERAL DISPUTES
PAGE 38
CLAUSE OF THIS CONTRACT. SUCH DISPUTES SHALL BE RESOLVI~D IN
ACCORDANCE WITH THE PROCEDURES OF THE DEPARTMENT OF
LABOR SET FORTH IN 29 C.F.R. PARTS 5, 6, AND 7. DISPUTES WITHIN
THE MEANING OF THIS CLAUSE INCLUDE DISPUTES BETWF~F~N THE
CONTRACTOR (OR ANY OF ITS SUBCONTRACTORS) AND THE CON-
TRACTING AGENCY, THE U. S. DEPARTMENT OF LABOR, OR THE
EMPLOYF~F~S OR TIqF~IR RF~PRESENTA~.
9. (a) CERTIFICATION OF ELIGIBILITY. BY ENTERING INTO
THIS AGI~F. FMF~NT OR A THIRD PARTY CONTRACT FINANCF~D UNDER
THIS AGRF. F~MENT, 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 GOVERNMF~NT CONTRACTS BY VIRTUE OF SECTION 3 (a) OF
THE DAVIS-BACON ACT OR 29 C.F.R. § 5.12(a) (1).
(b) NO PART OF THIS CONTRACT SHALL BE SUBCONTRACT-
ED TO ANY PERSON OR FIRM INELIGIBLE FOR AWARD OF A GOVERN-
MENT CONTRACT BY VIRTUE OF SECTION 3(a) OF THE DAVIS-BACON
ACT OR 29 C.F.R. § 5.12(a) (1).
(c) THE PENALTY FOR MAKING FALSE STATEMENTS IS
PRESCRIBED IN THE U.S. CRIMINAL CODE, 18 U.S.C. § 1001.
10. OVERTIME REOUIREMENTS. 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
WF.F~K 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
~. IN THE EVENT OF ANY VIOLATION OF THE REQUIREMENTS
OF 29 C.F.R. § 5.5Co) (1), THE CONTRACTOR AND ANY SUBCONTRACTOR
RESPONSIBLE THEREFOR SHALL BE LIABLE FOR THE UNPAID WAGES.
IN ADDITION, SUCH CONTRACTOR AND SUBCONTRACTOR SHALL BE
LIABLE TO THE UNITED STATES (IN THE CASE OF WORK DONE UNDER
CONTRACT FOR THE DISTRICT OF COLUMBIA OR A TERRITORY, TO
SUCH DISTRICT OR TO SUCH TERRITORY) FOR LIQUIDATED DAMAGES.
SUCH LIQUIDATED DAMAGES SHALL BE COMPUTED WITH RESPECT TO
EACH INDIVIDUAL LABORER OR MECHANIC, INCLUDING WATCHMEN
AND GUARDS, EMPLOYED IN VIOLATION OF 29 C.F.R. § 5.5Co) (1) IN THE
PAGE 39
SUM OF $10 FOR EACH CALENDAR DAY ON WHICH SUCH INDIVIDUAL
WAS REQUIRED OR PERMITrED TO WORK IN EXCESS OF THE STAN~
DARD WORK WEEK OF FORTY HOURS WITHOUT PAYMENT OF THE
OVERTIME WAGES REQUIRI=.r) BY 29 C.F.R. § fi.fi(b) (1).
12. WITHHOLDING FOR UNPAID WAGES AND LIOUIDATED
DAMAGES. UMTA OR THE AGENCY SHALL UPON 1TS OWN ACTION OR
UPON WRITEEN REQUF-~T OF AN AUTHORIZED REPRESENTATIVE OF
THE DEPARTMF-NT OF LABOR WITHHOLD OR CAUSE TO BE WITHHELD,
FROM ANY MONEYS PAYABLE ON ACCOUNT OF WORK PERFORlVlF~D BY
THE CONTRACTOR OR SUBCONTRACTOR UNDER ANY SUCH CONTRACT
OR ANY OTHF~R 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
29 C.F.R. § 5.5(b) (2).
13. SUBCO~CTS. T~ co~rr~CTOR OR SUBCONTRACTOR
S~XLL INSERT IN A~ SUBCO~rrRACTS ~ CLAUSES SET FORTH IN
SCrBSECT~ONS ll6.a.(1) T~OUGH 02) OF PART H OF ams AGRE~c. NT
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 l16.a,(1) THROUGH 116.a.(12) OF
PART Il OF THE CITY'S AGREEMENT WITH THE GOVERNMENT.
Nonconstruction Contracts. Pursuant to the regulations set forth at 29 C.F.R. Part 5, the
following provisions shall be incorporated in all federally-assisted non-construction contracts of
$2,500 let by the Agency in carrying out the Project:
NONCONSTRUCTION CONTRACTS. THE REQUIREMENTS OF THE
CLAUSES CONTAINED IN 29 C.F.R. § 5.5(b) OR SUBSECTIONS l16.a.(10)
THROUGH 116.a. (13) OF PART II OF THIS AGREEMENT ARE APPLICABLE
TO ANY CONTRACT SUBJECT TO THE OVERTIME PROVISIONS OF THE
CONTRACT WORK HOURS AND SAFETY STANDARDS ACT AND NOT TO
ANY OF THE OTHER STATUTES CITED IN 29 C.F.R. § 5.1. THE CON-
TRACTOR OR SUBCONTRACTOR SHALL MAINTAIN PAYROLLS AND
BASIC PAYROLL RECORDS DURING THE COURSE OF THE WORK AND
SHALL PRESERVE THEM FOR A PERIOD OF THREE YEARS FROM THE
COMPLETION OF THE CONTRACT FOR ALL LABORERS AND MECHAN-
ICS, INCLUDING GUARDS AND WATCHMEN, WORKING ON THE
CONTRACT. SUCH RECORDS SHALL CONTAIN THE NAME AND
PAGE 40
ADDRESS OF EACH SUCH EMPLOYEE, SOCIAL SECURITY NUMBER,
CORRECT CLASSIFICATIONS, HOURLY RATES OF WAGES PAID, DAH~Y
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 RF. PRF~ENTATIVES OF UMTA, DOT, OR THE DEPARTMF~NT
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 Reo_uirements.
1. The National Environmental Policy Act of 1969, as amended, 42 U.S.C. §8
4321 et sea_.; Section 14 of the Urban Mass Transportation Act of 1964, as amended, 49 U.S.C.
app. 8§ 1601 et sea_.; 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 Cie. an Air Act, as
amended, 42 U.S.C. §8 1857 et sea_.; the Federal Water Pollution Control Act, as amended, 33
U.S.C. 88 1251 et sea_.; and implementing regulations, in the facilities that are involved in the
Project for which Federal assistance is given. The Agency shall ensure that the facilities under
ownership, lease or supervision, whether directly or under contract, that will be ufili:,~d in the
accomplishment of. the Project are not listed on the Environmental Protection Agency (EPA) List
of Violating Facilities. Contracts, subcontracts, and sub-grants of amounts in excess of
$100,000 shall contain a provision requiring compliance with all applicable standards, orders,
or requirements issued pursuant to Federal statute or regulation. The Agency and any third
party contractor thereof shall be responsible for reporting any violations to City and UMTA and
to the EPA Assistant Administrator for Enforcement. In addition, the Agency shall notify City
and UMTA of the receipt of any communication from the Director of the EPA Office of Federal
Activities indicating that a facility to be utilized in the Project is under consideration for listing
by EPA.
3. No facilities or equipment shall be acquired, constructed, or improved as a part
of the Project unless the Agency obtains satisfactory assurances that they are (or will be)
designed and equipped to limit air pollution as provided in accordance with the following EPA
regulations: "Control of Air Pollution from Motor Vehicles and Motor Vehicle Engines," 40
C.F.R. Part 85; "Control of Air Pollution from New Motor Vehicles and New Motor Vehicle
Engines; Test Procedures for Light-Duty Vehicles and Light-Duty Trucks and Selective
Enforcement Auditing of New Light-Duty Vehicles, Light-Duty Trucks and Heavy-Duty
Engines," 40 C.F.R. Part 86; and "Fuel Economy of Motor Vehicles,H 40 C.F.R. Part 600; in
accordance with applicable federally-approved State Implementation Plan(s) (in particular, the
Transportation Control Measures); and in accordance with appropriate UMTA directives and all
other applicable standards.
PAGE 41
4. No publicly owned land from a park, recreation area, or wildlife or waterfowl
refuge of national, State, or local significance as determined by the Federal, State, or local
officials having jurisdiction thereof, or any land from an historic site of national, State, or local
significance may be used for the Project unless specific findings required under 49 U.S.C. 8 303
are made by the Department of Transportation.
5. The Agency shall assist the Government (UMTA) to comply with section 106
of the National Historic Preservation Act involving historic and archaeological preservation by:
(1) Consulting the State Historic Preservation Officer on the conduct of
investigations, in accordance with Advisory Council on Historic Preservation regulations,
~Protection of Historic and Cultural Properties,~ 36 C.F.R. Part 800, to identify properties and
resources listed in or eligible for inclusion in the National Register of Historic Places that may
be affected by the Project, and notifying the Government (UMTA) of the existence of any such
properties; and
(2) Complying with all Federal requirements to avoid or mitigate adverse
effects upon such properties.
6. The Agency and its third party contractors shall comply with mandatory
standards and policies relating to energy efficiency that are contained in applicable State energy
conservation plans issued in compliance with the Energy Policy and Conservation Act, 42
U.S.C. 88 6321 et sea_.
7. ShouM the proposed Project cause adverse environmental effects, the Agency
shall take all reasonable steps to minimize such effects pursuant to 49 U.S.C. app. 8 1610, other
applicable statutes, and the procedures set forth in 23 C.F.R. Part 771. The Agency shall
undertake all environmental mitigation measures that may be identified as commitments in
applicable environmental documents (such as environmental assessments, environmental impact
statements, memoranda of agreements, and statements required by 49 U.S.C. 8 303) and with
any conditions imposed by the Government as part of a finding of no significant impact or a
record of decision; all such mitigation measures are incorporated in and made part of this
Agreement by reference. In the event that some or all mitigation measures are deferred, once
such measures are agreed upon by the Government, City and the Agency, those mitigation
methods subsequently determined will be incorporated into this Agreement. Such mitigation
measures may not be modified or withdrawn without the express written approval of the
Government.
8. In carrying out the Project, the Agency shall make all appropriate efforts to
foster the use of fly ash, substantially in compliance with EPA regulations ~Guideline for
Federal Procurement of Cement and Concrete Containing Fly Ash," 40 C.F.R. Part 249.
Should the Agency make a determination that the use of fly ash is inappropriate in a particular
procurement of cement or concrete, the Agency shall provide UMTA a written justification to
support that decision.
PAGE 42
X. I~.~CPJ.LANEOUS
1. Agency shall comply with Department of Transportation regulations, "Uniform
Relocation and Real Property Acquisition Regulation for Federal and Federally Assisted
Programs," 49 C.F.R. Part 24.
2. Agency shall comply with the flood insurance purchase requirements of section
102(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. § 4012(a), with respect to any
construction or acquisition Project.
3. Agency shall comply with the bus testing requirements as set forth in section
12(h) of the Urban Mass Transportation Act of 1964, as amended, 49 U.S.C. app. § 1608(h),
and any implementing regulations that may be issued thereunder.
4. Agency shall comply with any regulations that may be issued to implement
section 120) of the Urban Mass Transportation Act, of 1964, as amended, 49 U.S.C. app. §
16080).
5. If any invention, improvement, or discovery of the Agency or any of its third
party contractors is conceived or first actually reduced to practice in the course of or under this
Project, which invention, improvement, or discovery may be patentable under the laws of the
United States of America or any foreign country, the Agency shall immediately notify the
Government (UMTA) and provide a detailed report. The rights and responsibilities of the
Agency, third party contractors, the City and the Government with respect to such invention,
improvement, or discovery will be detemfined in accordance with applicable Federal laws,
regulations, policies, and any waiver thereof.
6. Rights in Data.
a. The term *subject data" as used here'm means recorded infosmation,
whether or not copyrighted, that is delivered or specified to be delivered under this Agreement.
The term includes graphic or pictorial delineations in media such as drawings or photographs;
text in specifications or related performance or design-type documents; machine forms such as
punched cards, magnetic tape, or computer memory printouts; and information retained in
computer memory. Examples include, but are not limited to: computer software, engineering
drawings and associated lists, specifications, standards, process sheets, manuals, technical
reports, catalog item identifications, and related information. The term does not include
financial reports, cost analyses, and similar information incidental to Project administration.
b. The following restrictions apply to all subject data first produced in the
performance of this Agreement:
(1) Except for its own internal use, the Agency may not publish or reproduce
such data in whole or in part, or in any manner or form, nor may the Agency authorize others
to do so, without the written consent of the City and the Government, until such time as the
PAGE 43
Government may have either released or approved the release of such data to the public; this
restriction on publication, however, does not apply to Agreements with academic institutions.
(2) As authorized by 49 C.F.R. Part 18.34, the City and the Government
(UMTA) reserve a royalty-free, non-exclusive and irrevocable license to reproduce, publish or
otherwise use, and to authorize others to use, for Federal Government purposes:
(a) Any work developed under a grant, cooperative agreement, sub-
grant, sub-agreement, or third party contract, irrespective of whether or not a copyright has been
obtained; and
(b) Any rights of copyright to which a Agency, sub-recipient, or a third
party contractor purchases ownership with Federal assistance.
c. Agency understands and agrees that, in addition to the rights set forth in
Subsection 119.b.(2) of Part II of this Agreement, UMTA may make available to any UMTA
recipient, sub-grantee, sub-recipient, third party contractor, or third party subcontractor, either
UMTA's license in the copyright to the %ubject data" derived under this Agreement or a copy
of the 'subject data~ first produced under this Agreement.
d. The City and Agency shall indemnify, save and hold hacadess the Govern-
ment, its officers, agents, and employees acting within the scope of their official duties against
any liability, including costs and expenses, resulting from any willful or intentional violation by
the Agency of proprietary rights, copyrights, or right of privacy, arising out of the publication,
translation, reproduction, delivery, use, or disposition of any data furnished under this
Agreement.
e. Nothing contained in this clause shall imply a license to the City or
Government under any patent or be construed as affecting the scope of any license or other right
otherwise granted to the City or Government under any patent.
f. Subsections b., c. and d. of Part II of this Section are not applicable to material
furnished to the Agency by the U. S. Government and incorporated in the work furnished under
the Agreement; provided that such incorporated material is identified by the Agency at the time
of delivery of such work.
g. In the event that the Project, which is the subject of this Agreement, is not
completed, for any reason whatsoever, all data developed under that Project shall become subject
data as defined in Subsection 119.a. of Part II of the City's Agreement with the Government and
shall be delivered as the Government may direct.
h. The requirements of Subsections a. through g. of this Section shall be included
in all third party contracts of the Agency under this Project.
7. Privacy. Should the Agency, or any or its third party contractors, sub-grantees, sub-
recipients or their employees administer any system of records on behalf of the Federal Govern-
PAGE 44
ment, the Privacy Act of 1974, 5 U.S.C. § 552a (the Act), imposes information restrictions on
the pa~ administering the system of records.
a. For purposes of the Privacy Act, when the Agreement involves the operation
of a system of records on individuals to accomplish a Government function, the Agency and any
third party contractors, sub-grantees, sub-recipients and their employees involved therein are
considered to be Government employees with respect to the Government function. The
requirements of the Act, including the civil and criminal penalties for violations of the Act,
apply to those individu_~_Is involved. Failure to comply with the terms of the Act will make this
Agreement subject to termination.
b. As used herein:
(1) *Operation of a system of records# means performance of any of the
activities associated with maintaining the system of records on behalf of the Government
including the collection, use and dissemination of records.
(2) NRecord' means any item, collection, or grouping of information about
an individual that is maintained by the Agency on behalf of the Government including, but not
limited to, his or her education, financial transactions, medical history, and criminal or
employment history and that contains his or her name, or the identifying number, symbol, or
other identifying particular assigned to the individual, such as a finger or voice print or a
photograph.
(3) "System of records~ on individuals means a group of any records under
the control of the Agency on behalf of the Government from which information is retrieved by
the name of the individual or by some identifying number, symbol or other identifying particular
assigned to the individual.
Y. GENERAL PROVISIONS
a. Bonus or Commission. The Agency warrants that it has not paid, and also
agrees not to pay, any bonus or commission for the purpose of obtaining approval of its
application for the financial assistance hereunder.
b. State or Tcrritoriai Law. Except to the extent that a Federal statute or
regulation conflicts with State or territorial law, nothing in the Agreement shall require the
Agency to observe or enforce compliance with any provision thereof, perform any other act, or
do any other thing in contravention of any applicable State or territorial law; however, if any
of the provisions of the Agreement violate any applicable State or territorial law, or if compli-
ance with the provisions of the Agreement would require the Agency to violate any applicable
State territorial law, the Agency shall at once notify the Government (UMTA) in writing in
order that appropriate arrangements may be made by the Government and the Agency to the end
that the Agency may proceed as soon as possible with the Project.
PAGE 45
c. R~w. ords. The Agency will, for each local fiscal year ending on or after' July
1, 1978, conform to the reporting system and the uniform system of accounts and records to the
extent required by section 15 of the Urban Mass Transportation Act of 1964, as amended, 49
U.S.C. app. § 1611, effective for each local fiscal year ending on or after July 1, 1978, and
applicable regulations ~Uniform System of Accounts and Records and Reporting System,# set
forth at 49 C.F.R. Part 630.
d. Severability. If any provision of this Agreement is held invalid, the remainder
of this Agreement shall not be affected thereby if such remainder would then continue to
conform to the terms and requirements of applicable law.
IN WlTN~S WI~.REOF, the parties do hereby affix their signatures and enter into this
Agreement as of the xa day of au,.Y , 1995.
CITY OF DENTON, TEXAS
ATTEST: BOB CASTL~BERRY, M~/~OR~
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
OFFICE OF THE CITY ATFORNEY
AGENCY
DIRECTOR
ATrF~T:
BY:
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PAGE 46
NO. qq
AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE THE FIRST
AMENDMENT TO AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS
AND SPAN, INC., RELATING TO PUBLIC TRANSPORTATION IN THE CITY;
AUTHORIZING THE EXPENDITURE OF FUNDS AS PROVIDED IN THE
AGREEMENT; AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDA1NS:
SECTION I. That the Mayor is authorized to execute the First Amendment to the
Agreement between the City of Denton and Span, Inc., relating to public transportation in
the City, such agreement as amended is attached hereto and made a part of this ordinance
for all purposes.
SECTION II. That the City is hereby authorized to make expenditures as may be
required under this agreement as amended.
SECTION III. That this ordinance shall become effective immediately upon its
passage and approval.
PASSED AND APPROVED this ~of ~ , 1997.
ATTEST:
JENN1FER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
T:\WPDOCS\ORD\SPAN.DOC
Ia AMENDMENT TO THE
AGREEMENT BETWEEN THE
CITY OF DENTON, TEXAS AND
SPAN, INC.
The Agreement entered into by and between the City of Denton, Texas, a Home Rule Municipal
Corporation, (hereinafter referred to as City) and SPAN, INC. (herein after referred to as
Agency) on July 18, 1995 is hereby amended so that hereafter same shall read as follows; and
WHEREAS, the City Manager has determined that the Agency is the transportation provider for
the City and provides a needed service to citizens of the City and the City Council has provided
for funds in its budget for the purpose of paying for contractual services as well as providing
for eligible Federal Transit Administration funds; and
WHEREAS, the City has received grants from the Federal Transit Administration and the Texas
Department of Transportation to provide public transportation in the Denton urbanized area and
wishes to contract with SPAN, INC. to provide such services;
NOW, THEREFORE, the parties hereto mutually agree as follows:
I. SCOPE OF SERVICES
The Agency shall in a satisfactory and proper manner perform the following Project: undertake
and complete the Project, and provide for the use of the Project facilities or equipment, substan-
tially as described in City's Application for Federal funding, which is incorporated herein by
reference, filed with and approved by the U. S. Govermnent, and in accordance with the terms
and conditions of this Agreement, including:
A. Providing transportation within the city limits during 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 King, Jr. Day, Memorial Day, Independence Day,
Thanksgiving Day, day after Thanksgiving Day, Christmas Eve, and Christmas Day.
B. Charging a fee to each passenger with a disability One Dollar and Fifty Cents ($1.50)
for every one-way trip on the demand response system provided to that passenger.
C. Providing transportation services within the city limits to the general public on four
fixed routes, as outlined in Section I.A. hereof, for seventy-five ($.75) for each one way trip,
with a free transfer.
D. Charging a fee to each person 60 years of age and older and all persons with
disabilities eligible under the "Americans with Disabilities Act" no more than half price fare on
the public fixed route system.
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E. Before mending its fares, Agency shall send notice to City informing it of the
proposed amendment. The City shall consider whether it shall approve the amendment. If the
City does not take action to approve or disapprove the proposed fare within 60 days, it shall be
deemed to have approved the proposed fare.
F. Agency may contract with other persons or companies in accordance with the terms
and conditions of this agreement to provide the services specified herein during times when
Agency does not operate. Transportation services provided by such subcontractees shall be in
accordance with the terms and conditions of this Agreement.
H. OBLIGATIONS OF AGENCY
In consideration of the receipt of funds from the City, Agency agrees to the following
terms and conditions:
A. It will establish a separate bank account for deposit of funds paid to the Agency by
the City and the only expenditures from this account, until such time as said funds are
exhausted, shall be for those expenses listed in the scope of services as provided for herein.
Agency shall not commingle funds received from other sources in this account and shall not
utilize these funds for any other purpose.
B. It will establish, operate, and maintain an account system for this program that will
allow for a tracing of funds and a review of the fmancial status of the project and will permit
authorized officials for the City of Denton to review its books at any time.
C. It will comply with all federal statutes and regulations promulgated thereunder
applicable to the Agency.
D. It will comply with all provisions of the current annual contract between the City and
State Depatiment of Transportation, approved by the City of Denton on November 5, 1996.
E. It will reduce to writing all of its roles, regulations and policies, such as drug testing,
training procedures, grievance policies, and compliance with the Americans with Disabilities
Act, and file a copy with the City Manager or authorized representative along with any
amendments, additions, or revisions whenever adopted.
F. It will not enter into any contracts that would encumber the City funds for a period
that would extend beyond the term of this Agreement.
G. At the discretion of the City, the Agency may be required to refund the balance of
the special account to the City of Denton at the end of the Agency's fiscal year.
H. It will promptly pay all bills when submitted unless there is a discrepancy in a bill;
any errors or discrepancies in bills shall be promptly reported to the Executive Director of
Finance or their authorized representative for further direction.
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I. It will appoint a representative who will be available to meet with the Executive
Director of Finance and other City officials when requested.
J. It will indemnify and hold hatndess the City from any and all claims and suits arising
out of the activities of the Agency, its employees, or contractors and save and hold the City
hamfless from all liability, including costs, expenses and attorneys fees, for or on account of,
any claims, audit exceptions, suits, or damages of any character whatsoever resulting in whole
or in part from the perfo~'mance or omission of any act of any employee, agent or representative
of the Agency, whether or not such claim arises from the sole negligence of City.
K. It will submit to the City copies of year-end audited financial statements in
accordance with the provisions hereof. It shall also submit to the City an annual report to
include year-end statistics of the number of riders, fixed route by route, final financial data and
other quantitative data enumerating milestones and accomplishments. The information in these
reports should be as of September 30, 1996, 1997 and 1998, and should be submitted to the City
no later than November 15, 1996, 1997 and 1998.
L. It will maintain liability insurance in amounts not less than the statutorily required
worker's compensation insurance, $500,000 in automobile liability insurance coverage, and
$1,000,000 in general liability insurance coverage. It will name the City of Denton, Texas and
the State of Texas as additional insurers on liability policies and shall provide City with
certificates evidencing such coverage. Said policies shall not be cancelable unless 30 days
written notice is given to City before cancellation.
M. Agency shall submit its grant funds for the upcoming year no later than December
31, 1995.
N. Agency shall anticipate and be actively involved in public hearings on the grant
proposal, as required by the American with Disabilities Act and ridership input for system and
route changes, at such times as required by law.
O. All requests for reimbursement shall be submitted to the City Manager no later than
the seventh day of each month. The request should detail the number of service hours operated
for both the demand response and fixed-route service. Reimbursement will be based upon the
number of service hours multiplied by the 'fully allocated rate' determined annually by the City
and Agency prior to October 1. Farebox revenue receipt figures shall also be included in each
billing statement, and documentation shall be provided to support such figures. In no event
under the terms of this Agreement will the total compensation to be paid exceed the amount of
the City's FTA and State grants, as outlined in the City's contracts with the State and the FTA.
Farebox revenue receipt figures shall be included in each billing statement, and documentation
shall be provided to support such figures.
P. Agency shall submit to the City copies of each accident report, the Police accident
report, Agency accident report and indication of drug policy action taken as soon as possible
after the accident. A review of accidents will be conducted quarterly with the assistance of the
City's Risk Manager.
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Q. Agency shall submit evidence of compliance with various federal and state
regulations pursuant to City's request.
R. The Agency agrees:
1. To comply with the Privacy Act of 1974, 5 U.S.C. § 552a and regulations
thereunder, when performance under the Project involves the design, development, or operation
of any system of records on individuals to be operated by the Agency, its third party contractors,
sub-grantees, sub-recipients, or their employees to accomplish a Government function;
2. To notify the Government when the Agency or any of its third party
contractors, sub-grantees, sub-recipients, or their employees anticipates operating a system of
records on behalf of the Government in order to implement the Project, if such system contains
information about individuals retrievable by the individual's name or other identifier assigned
to the individual. A system of records subject to the Act may not be used in the performance
of this Agreement until the necessary and applicable approval and publication requirements have
been met. The Agency, its third party contractors, sub-grantees, sub-recipients, and their
employees agree to correct, maintain, disseminate, and use such records in accordance with the
terms of the Act, and to comply with all applicable terms of the Act;
3. To include in every solicitation and in every third party contract, sub-grant,
and sub-agreement when the performance of work under that proposed third party contract, sub-
grant, or sub-agreement may involve the design, development, or operation of a system of
records on individuals to be operated under that third party contract, sub-grant, or sub-agreement
to accomplish a Government function, a Privacy Act notification informing the third party
contractor, sub-grantee, or sub-recipient that it will be required to design, develop, or operate
a system of records on individuals to accomplish a Government function subject to the Privacy
Act of 1974, 5 U.S.C. § 552a, and Federal agency regulations, and that a violation of the Act
may involve the imposition of criminal penalties; and
4. To include the text of Subsections 125.c (1) through 125.c (4) of Part II of the
City's Agreement with the Government, in all third party contracts, sub-grants, and sub-
agreements under which work for this Agreement is performed or which is awarded pursuant
to this Agreement or which may involve the design, development, or operation of such a system
of records on behalf of the Government.
S. Prohibition of Drugs. The Agency agrees to comply with the following regulations:
UMTA regulations, "Control of Drug Use in Mass Transportation Operations," 49 C.F.R. Part
653; Department of Transportation regulations, "Drug-Free Workplace Requirements (Grants),"
49 C.F.R. Part 29, Subpart F; and Department of Transportation regulations, "Procedures for
Transportation Workplace Drug Testing Programs," 49 C.F.R. Part 40, and "Qualification of
Drivers," 49 C.F.R. Part 391, Subpart h.
Agency shall obtain from its third party contractors, sub-grantees, and sub-recipients
certifications required by Department of Transportation regulations, "Government-wide
Debarment and Suspension (Non-procurement)," 49 C.F.R. Part 29, and otherwise comply with
the requirements of those regulations.
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T. Agency acknowledges that if it makes a false, fictitious, or fraudulent claim,
statement, submission, or certification to the Government in connection with this Project, the
Government reserves the right to pursue the procedures and impose on the Agency the penalties
of 18 U.S.C. § 1001, 31 U.S.C. §§ 231 and 3801 et seq., and/or 49 U.S.C. app. § 1607(h),
and may be deemed by the Government to be appropriate. The terms of Department of
Transportation regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, are applicable
to this Project.
III. TIME OF PERFORMANCE
The services funded by the City shall be undertaken by the Agency within the following
time frame:
(Date of Award) through September 30, 1999.
IV. METHOD OF PAYMENT
A. Payment by the City for services provided hereunder shall be requested by the
Agency by letter addressed to: City of Denton, 215 East McKinney, Denton, Texas 76201, Attn:
City Manager's Office.
B. Agency shall make each request for payment in accordance with the provisions herein
and all requests for payment shall be submitted to the City Manager.
C. The City shall submit a request for payment to the FTA. Within three (3) working
days of receiving reimbursement from the FTA, the City shall send payment to the Agency.
D. It is expressly understood and agreed that (i) the funds payable under this Agreement
are subject to receipt of monies from the State of Texas and the FTA. Should the funds be
curtailed, or should the City be required to curtail its funding, City shall have the right to
terminate this Agreement immediately without penalty. In no event under the temps of this
Agreement will the total compensation to be paid exceed the amount of the City's FTA and State
grants, as outlined in the City's contracts with the State and the FTA.
It is expressly understood that this contract in no way obligates the General Fund or
any other monies or credits of the City of Denton.
E. The City shall not be obligated or liable under this contract to any party other than
the Agency for payment of any monies or provision of any goods or services.
V. EVALUATION
The Agency agrees to participate in an implementation and maintenance system whereby
its services can be continuously monitored. The Agency agrees to make available its financial
records for review by the City at the City's discretion. In addition, the Agency agrees to
provide the City copies of the following data and reports:
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A. All external or internal audits. Agency shall submit a copy of the annual independent
audit to City within ten (10) days of receipt.
B. All external or internal evaluation reports.
C. Agency shall submit quarterly financial statements to City in January, April, July,
and September. Each statement shall include expenses and income for the preceding quarter and
shall identify the number of participants in each transportation program the agency operates.
Agency shall submit such statements not later than the fifteenth day of the month following the
end of each quarter.
VI. DIRECTORS' MEETINGS
During the term of this Agreement, the Agency shall cause to be delivered to the City
copies of all notices of meetings of its Board of Directors, setting forth the time and place
thereof. Such notice shall be delivered to the City in a timely manner to give adequate notice,
and shall include an agenda and a brief description of the matters to be discussed. Agency
understands and agrees that City representatives shall be afforded access to all Board of
Directors' meetings.
Minutes of all meetings of the Agency's governing body shall be submitted to the City
within ten (10) working days of approval.
VII. SUSPENSION OR TERMINATION
The City may suspend or terminate this Agreement and payments to the Agency, in whole
or part, for cause. Cause shall include but not be limited to the following:
A. Agency's improper, misuse, or inept use of funds;
B. Agency's failure to comply with the terms and conditions of this Agreement;
C. Agency's submission of data or reports that are incorrect or incomplete in any
material respect;
D. Appointment of a trustee, receiver or liquidator for all or a substantial part of the
Agency's property, or institution of bankruptcy, reorganization, rearrangement of or liquidation
proceedings by or against the Agency; or
E. If for any reason the carrying out of this Agreement is rendered impossible or
infeasible.
In case of suspension, the City shall advise the Agency, in writing, as to conditions
precedent to the resumption of funding and specify a reasonable data for compliance.
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In case of termination, the Agency will remit to the City any unexpended City funds.
Acceptance of these funds shall not constitute a waiver of any claim the City may otherwise have
arising out of this Agreement.
VIII, EQUAL OPPORTUNITY
A. Agency will submit for City approval a written plan for compliance with the Equal
Employment and Aff'u'mative Action Federal provisions, within one hundred twenty (120) days
of the effective date of this Agreement.
B. Agency shall comply with all applicable equal employment opportunity and
aff'mmative action laws or regulations.
C. Agency will furnish all information and reports requested by the City, and will
permit access to its books, records, and accounts for purposes of investigation to ascertain
compliance with local, state and Federal roles and regulations.
D. In the event of the Agency's non-compliance with the Federal non-discrimination
requirements, the Agreement may be cancelled, temfinated, or suspended in whole or in part,
and the Agency may be barred from further contracts with the City.
IX. CONFLICT OF INTEREST
A. The Agency covenants that neither it nor any member of its governing body presently
has any interest, direct or indirect, which would conflict in any manner or degree with the
performance of services required to be performed under this Agreement. The Agency further
covenants that in the performance of this Agreement, no person having such interest shall be
employed or appointed as a member of its governing body.
B. The Agency further covenants that no member of its governing body or its staff,
subcontractors or employees shall possess any interest in or use his position for a purpose that
is or gives the appearance of being motivated by desire for private gain for himself, or others,
particularly those with which he has family, business, or other ties.
C. No officer, member, or employee of the City and no member of its governing body
who exercises any function or responsibilities in the review or approval of the undertaking or
carrying out of this Agreement shall (1) participate in any decision relating to the Agreement
which affects his personal interest or the interest in any corporation, parmership, or association
in which he has direct or indirect interest; or (2) have any interest, direct or indirect, in this
Agreement or the proceeds thereof.
X. NEPOTISM
Agency shall not employ in any paid capacity any person who is a member of the~
immediate family of any person who is currently employed by Agency, or is a member of
Agency's governing board. The term "member of immediate family" includes: wife, husband,
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son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, step-parent,
step-child, half-brother and half- sister.
XI. SPECIAL CONDITIONS
A. Agency agrees to undertake, carry out, and complete the Project consistent with the
terms and conditions determined by the Secretary of Labor to be fair and equitable to protect
the interests of employees affected by the Project and meet requirements of Section 13(c) of
Federal Transit Act, as amended, 49 U.S.C. App. Section 1609(c), and Department of Labor
(DOL) guidelines set forth in 29 C.F.R. Part 215. These te~ms and conditions are identified in
the letter of certification from DOL to FTA whose date is set forth in the Notification of Grant
Approval to the City. The Agency agrees to carry out the Grant in compliance with the con-
ditions stated in that DOL letter. That letter and any documents cited in the letter are
incorporated herein by reference and made part of this Grant.
B. Agency agrees to comply with the requirements of Section 8 of the Federal Transit
Act, as amended, 49 U.S.C. App. Section 1607, and any implementing regulations that may be
issued thereunder.
C. Agency agrees that it will utilize its administrative process to solicit and consider
public comment prior to raising fares or implementing a major reduction of service.
D. Agency agrees that the Federal Government and the City may, at least annually and
more frequently in its discretion, either conduct or require the Agency to have independently
conducted, reviews and audits as the Government may deem appropriate pursuant to the
provisions of Section 9(g) of the Federal Transit Act, as amended, 49 U.S.C. App. Section
1607a(g), and any regulations or guidelines that may be issued by the Government.
E. Agency agrees and assures that the rates charged elderly and handicapped persons
during nonpeak hours for transportation utilizing or involving the facilities and equipment
financed pursuant to this Agreement will not exceed one-half of the rates generally applicable
to other persons at peak hours, whether the operation of such facilities and equipment is by the
Agency or is by another entity under lease or otherwise. The Agency agrees and assures that
it will give the rate required herein to any person presenting a Medicare card duly issued to that
person pursuant to Title II or Title XVIII of the Social Security Act.
F. Agency agrees to comply with applicable Buy America statutory and regulatory
provisions. The Agency may, without prior approval, procure an associated capital maintenance
item eligible under Section 90) of the Federal Transit Act, 49 U.S.C. App. Section 1607aO),
by contract directly with the original manufacturer or supplier of the item to be replaced,
provided that the Agency first certifies in writing to the Government that: (1) such manufacturer
or supplier is the only source of such item; and (2) the price of such item is no higher than the
price paid for such item by like customers.
G. Agency shall implement a project management plan, as approved by the Federal
Government, in accordance with the requirements of Section 23 of the Federal Transit Act, as
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amended, 49 U.S.C. App. Section 1619, and any implementing regulations that may be there-
under.
XII. ADDITIONAL COVENANTS OF AGENCY
A. Definitions. As used in this section:
1. Agreement means any Grant Agreement or Cooperative Agreement.
2. Application means the signed and dated proposal as may be amended for
Federal f'mancial assistance for the Project, together with all explanatory, supporting, and
supplementary documents heretofore filed with and accepted and approved by the Government
(UMTA) by or on behalf of the Agency.
3. Approval, Authorization, Concurrence, Waiver means a conscious written act
by an authorized official of the UMTA and City granting pe.uission to the Agency to perform
or omit an action pursuant to this Agreement, which action may not be performed or omitted
without such permission. An approval, authorization, concurrence, or waiver permitting the
perfo.aance or omission of a specific action shall not constitute permission to perform or omit
other similar actions unless such permission is clearly stated. Oral permission or interpretations
have no legal force or effect.
4. UMTA Directive includes the most recent circulates, notices, and orders that
present information about UMTA programs, application processing procedures, and guidance
for administering approved Projects; there are also Department of Transportation directives that
may be applicable to the Project.
5. Government means the United States of America, or its cognizant agency, the
Department of Transportation (DOT), or its operating administration, the Urban Mass
Transportation Administration (UMTA), used herein interchangeably.
6. Mass Transportation includes public transportation and means transportation
by bus, rail or other conveyance, either publicly or privately owned, that provides general or
special transportation service (but not including school bus, charter or sightseeing service) to the
public on a regular and continuing basis.
7. Project means the task or set of tasks provided for in the Project Budget which
the Agency undertakes to perform pursuant to this Agreement.
8. Project or Program Budget means the most recently dated statement, approved
by the Government, of the estimated total cost of the Project or Program, the items to be
deducted from such total in order to calculate the estimated net Project cost, the maximum
amount of Federal assistance for which the Agency, through the City, is currently eligible, the
specific items (including contingencies and relocation) for which the total may be spent, and the
estimated cost of each of such items.
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9. Secreta~ means Secretary of the Department of Transportation or his or her
duly authorized designee.
10. UMTA means the Urban Mass Transportation Administration of the U.S.
Department of Transportation.
11. City means City of Denton, Texas.
B. In the perfo~aiance of its obligations pursuant to this Agreement, the Agency agrees
to comply with all applicable provisions of Federal, State, and local laws, regulations, and
UMTA directives. The Agency understands and agrees that Federal laws, regulations, policies,
and related administrative practices in force and made applicable to this Agreement on the date
of execution may be modified from time to time, and that the most recent of such provisions will
govern administration of this Agreement at any particular time, except if there is sufficient
evidence in the Agreement of a contrary intent. Such contrary intent might be evidenced by
express language in any amendments to the Agreement. Likewise, new Federal laws, regula-
tions, policies and administrative practices may be established after the date of execution and
thereafter be applied to this Agreement. As may be necessary to achieve compliance with these
requirements, the Agency shall include notice of such requirements in all third party contracts,
sub-grants, and other sub-assistance agreements f'manced with Government (UMTA) assistance.
All limits or standards set forth in this Agreement to be observed in the performance of the
Project are minimum requirements. If there is a conflict between Federal and State or local
requirements, the Agency shall info~ff~ the City and the Government (UMTA) in order that an
appropriate resolution may be arranged.
C. Agency shall submit to the City such data, reports, records, contracts, and other
documents relating to the Project as the City may, during the course of the Project and for three
years thereafter, require. The Agency shall retain intact, for three years following Project close-
out, all Project documents, financial records, and supporting documents and make these records
available to the City as the City may require.
D. Agency shall immediately notify the City of any change in law, conditions, or any
other event that may significantly affect its ability to perform the Project in accordance with the
terms of this Agreement. In addition, the Agency shall immediately notify the City of any
decision pertaining to the Agency's conduct of litigation that may affect the City's interests in
the Project or the City's administration or enforcement of applicable Federal laws or regulations.
Before the Agency may join the City as a named party to litigation, for any reason, the Agency
agrees to first info~ls~ the City; this proviso applies to any type of litigation whatsoever, in any
forum.
E. Absent the express, written consent of the Government or the City and notwithstand-
ing any concurrence by the Government in or approval of the award of any contract or
subcontract or the solicitation thereof, neither the Government nor the City shall be subject to
any obligations or liabilities by contractors of the City or their subcontractors or any other
person not a party to this Agreement in connection with the perfo,mance of this Project.
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F. Agency shall prepare and maintain a Project Budget. A copy of the said budget shall
be submitted to the City by March 1 of each year. The Agency shall carry out the Project and
shall incur obligations against and make disbursements of Project funds only in conformity with
the latest approved budget for the Project. The Project Budget may be revised, from time to
time, to the extent permitted by and in conformance with the requirements of the Government.
G. Agency shall establish and maintain either a separate set of accounts or accounts,
within the framework of an established and approved accounting system, for the Project in a
manner consistent with 49 C.F.R. § 18.20, or OMB Circular A-Il0, as amended, as may be
applicable.
H. Consistent with the provisions of 49 C.F.R. § 18.21, or OMB Circular A-110, as
amended, as may be applicable, the Agency shall record in the Project Account, and deposit in
a bank or trust company all Project payments it receives from the City pursuant to this
Agreement and all other funds provided for, accruing to, or otherwise received on account of
the Project, (Project Funds). A separate bank account may be required when drawdowns are
made by letter of credit. The Agency is encouraged to use banks that are owned at least 50
percent by minority group members.
I. Expenditures made by the Agency shall be reimbursable as allowable costs to the
extent that they meet all the requirements set forth below. They must:
1. Confomi with the Project Description and the Project Budget and all other
terms of the Agreement;
2. Be necessary in order to accomplish the Project;
3. Be reasonable in amount for the goods or services purchased;
4. Be actual net costs to the Agency (i.e., the price paid minus any refunds,
rebates, or other items of value received by the Agency that have the effect of reducing the cost
actually incurred, excluding Program Income);
5. Be incurred (and be for work performed) after the date of this Agreement,
unless specific authorization from the Government (UMTA) or the C~ty to the contrary is
received;
6. Unless permitted otherwise by Federal statute or regulation, conform with
Federal guidelines or regulations and Federal cost principles as set forth in the standards of
OMB Circular A-122, Revised, "Cost Principles for Nonprofit Organizations," and the standards
of 48 C.F.R. Part 31 are applicable;
7. Be satisfactorily documented; and
8. Be treated uniformly and consistently under accounting principles and
procedures approved and prescribed by the Government or City for the Agency; and those
approved or prescribed by the Agency for its contractors.
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J. All costs charged to the Project, including any approved services contributed by the
Agency or others, shall be supported by properly executed payrolls, time records, invoices,
contracts, or vouchers evidencing in detail the nature and propriety of the charges. The Agency
shall also maintain accurate records of all Project Funds derived from the implementation of the
Project.
K. Any check or order drawn by the Agency with respect to any item that is or will be
chargeable against the Project Account will be drawn only in accordance with a properly signed
voucher then on file in the office of the Agency stating in proper detail the purpose for which
such check or order is drawn. All checks, payrolls, invoices, contracts, vouchers, orders, or
other accounting documents pertaining in whole or in part to the Project shall be clearly
identified, readily accessible, and, to the extent feasible, kept separate and apart from all other
such documents.
L. The Agency shall permit the Secretary and the Comptroller General of the United
States, or any of their duly authorized representatives to inspect all work, materials, payrolls,
and other data and records with regard to the Project, and to audit the books, records, and
accounts of the Agency and its contractors with regard to the Project. In the case of contracts
awarded under other than competitive bidding procedures as defined by the Secretary of
Transportation, the Agency shall require those contractors to permit the Secretary of
Transportation and the Comptroller General of the United States, or any of their duly authorized
representatives to inspect all work, materials, payrolls, and other data and records with regard
to the Project, and to audit the books, records, and accounts pertaining to such contracts with
regard to the Project. If the City is found to be responsible for meet'mg the audit requirements
of 49 C.F.R. § 18.26 and OMB Circular A-128 or any revision or supplement thereto, the
Agency shall comply with these requests. The Agency is responsible for obtaining any audits
required by the Government (UMTA). Closeout of the Project will not alter the Agency's audit
responsibilities.
1. The Agency shall report its cash disbursements and balances in a timely manner
as required by the City or Government.
2. The Agency shall provide for effective control and accountability for all Project
funds consistent with Federal requirements and procedures for use of the letter of credit.
3. The Agency shall impose on its sub-recipients all applicable requirements of
Subsections 105.b. (1) (a), (b), and (c) of Part II of this Agreement.
M. Neither the Agency nor any sub-recipient may use Federal assistance funds for
publicity or propaganda purposes designed to support or defeat legislation pending before
Congress.
N. Agency agrees that:
1. Any interest earned by the Agency on Federal funds must be remitted to the
Government, except as provided by the Intergovernmental Cooperation Act, 31 U.S.C. §
6503(a), or the Indian Self-Determination Act, 23 U.S.C. § 450.
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2. Upon notice by the Government (UMTA) to the City of specific amounts due
the Government, the Agency shall promptly remit any excess payment of amounts or disallowed
costs to the Government (UMTA), including any interest due thereon.
O. The Agency recognizes that the Government (UMTA) reserves the right to deobligate
unspent Federal funds prior to Project closeout, if such occurs, City may terminate this
Agreement without penalty.
P. Agency agrees that, upon written notice, the City may suspend or terminate all or
part of the financial assistance provided herein if the Agency is, or has been, in violation of the
temps of this Agreement, or if the Government or the City determines that the purposes of the
statute under which the Project is authorized would not be adequately served by continuation of
Federal financial assistance for the Project. Any failure to make reasonable progress or other
violation of the Agreement that significantly endangers substantial performance of the Project
shall be deemed to be a breach of this Agreement. If the Agency's failure either to make
adequate progress or to make reasonable use of the Project real property, facilities, or
equipment, or to honor the terms of this Agreement is determined by the City to be willful or
unreasonable, the City reserves the right to require the Agency to refund to the City the entire
amount of Project funds provided by the City or any lesser amount as may be determined by the
City.
Q. Within 30 days of the termination of this Agreement, the Agency shall submit a f'mal
Financial Status Report (Standard Form 269), a certification or summary of Project expenses,
and third party audit reports, as applicable. Agency agrees that either the Government (UMTA)
or an agency designated by the Government (UMTA) will perfomi a final audit of the Project
to determine the allow ability of costs incurred to determine settlement of the Federal assistance
for the Project in accordance with Part I of this Agreement. If City has made payments to the
Agency in excess of the total amount of the Federal assistance due, the Agency shall promptly
remit to the City that excess and interest as may be required by Subsections 105.b. and 105.e.
of Part II of the City's Agreement with the Government. Project closeout occurs when the City
notifies the Agency and forwards the f'mal Federal assistance payment or when the Agency's
remittance of the proper refund has been acknowledged by the City. Project closeout shall not
invalidate any continuing obligations imposed on the Agency by this Agreement or by the City's
final notification or acknowledgment.
R. The following conditions are applicable to real property, equipment, and supplies
financed under this Agreement:
1. The Agency agrees to observe the property management standards set forth in
49 C.F.R. §§ 18.31', 18.32, and 18.33, or OMB Circular A-110, Attachment N, as appropriate,
as now or hereafter amended, and any guidelines or regulations that the Government may issue.
Exceptions to the requirements of 49 C.F.R. §§ 18.31, 18.32, and 18.33, and to OMB Circular
A-110, Attachment N must be specifically approved by the City. The City reserves the right
to require the Agency to transfer title to any equipment financed with Federal assistance made
available by this Agreement as set forth in 49 C.F.R. § 18.32(g) or OMB Circular A-Il0,
Attachment N, as may be appropriate. The City also reserves the right to direct the disposition
of real property or equipment financed with Federal assistance funds made available under this
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Agreement, as set forth in 49 C.F.R. §§ 18.31 and 18.32 or OMB Circular A-110, Attaclm~ent
N, as may be applicable.
2. The Agency agrees to maintain the Project real property, equipment, and
supplies in good operating order, and in accordance with any guidelines, directives, or
regulations that UMTA may issue. If, during the period, any Project real estate, equipment, or
supplies are not used in mass transportation service, whether by planned withdrawal, misuse or
casualty loss, the Agency shall immediately notify the City. Unless otherwise approved, the
Agency shall remit to the City a proportional amount of the fair market value, if any, of the real
property, equipment, or supplies whose aggregate value exceeds $5,000, which value shall be
determined on the basis of the ratio of the Federal assistance awarded by the Government to the
actual cost of the Project. The following guidelines shall be followed in detetiiiining the fair
market value. Unless otherwise approved in writing by UMTA, the fair market value of
equipment and supplies will be the value of that property at the time immediately before the
reason occurred that prompted the decision to withdraw that property from transit use. For
example, in the event of loss of or damage to the property by casualty or fire, the fair market
value of the property will be calculated immediately before the loss or damage, irrespective of
the extent of insurance coverage. In the case of equipment and supplies, fair market value shall
be based on straight line depreciation of the equipment and supplies, based on the industry
standard for useful life, irrespective of the reason for withdrawal of that property from transit
use. In the case of real property, the fair market value shall be determined by competent
appraisal based on an appropriate date as determined by the Government consistent with the
standards of 49 C.F.R. Part 24. The City, however, reserves the right to require another
method of valuation to be used if the Government (UMTA) f'mds that special circumstances so
require to assure the protection of the Federal investment. In unusual circumstances, the Agency
may request that another reasonable method of determining fair market value be used, including
but not limited to accelerated depreciation, comparable sales, or established market values. In
determining whether to approve an alternate method, the City may consider any action taken,
omission made or unfortunate occurrence suffered by the Agency with respect to the preservation
or conservation of the value of the real property, equipment, or supplies that, for any reason,
have been withdrawn from service.
3. The Agency further agrees that the Project real property, equipment, and
supplies shall be used for the provision of mass transportation service within the area and in the
manner set forth in the Project Description. Should the Agency unreasonably delay in or refrain
from using Project real estate or equipment, in the manner set forth in the Project Description,
the City reserves the right to require the Agency to return the entire amount of the Federal
assistance expended on that real estate or equipment. The Agency shall keep satisfactory records
with regard to the use of the real property, equipment, and supplies, and submit to the City upon
request such information as may be required to assure compliance with this Section and shall
immediately notify the City in all cases in which Project real property, equipment, or supplies
are used in a manner substantially different from what is set forth in the Project Description.
The City reserves the right to require the Agency to restore Project real property, equipment,
or supplies or pay for damage to Project real property, equipment, or supplies as a result of
abuse or misuse of such property with the Agency's knowledge and consent.
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S. Agency may not execute any transfer of title, lease, lien, pledge, mortgage,
encumbrance, contract, grant anticipation note, alienation, or other obligation that in any way
affects the Federal interest in any Project real property or equipment, nor may the Agency
obligate itself, in any other manner, to any third party with respect to Project real property or
equipment, unless such transfer of title, lease, lien, pledge, mortgage, encumbrance, contract,
grant anticipation note, alienation, or other obligation is expressly authorized in writing by the
City and Government (UMTA); nor may the Agency, by any act or omission, adversely affect
the Federal interest or impair the Agency's continuing control over the use of Project real
property or equipment.
T. Civil Rights
1. Equal Employment Opportunity - The following requirements are applicable
to the Project:
(a) In connection with Project implementation, the Agency may not
discriminate against any employee or applicant for employment because of race, color, age,
creed, sex, or national origin. The Agency shall take affumative action to ensure that applicants
are employed, and that employees are treated during employment, without regard to their race,
color, religion, sex, age, or national origin. Such action shall include, but not be limited to, the
following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising,
layoff or temdnation; rates of pay or other forms of compensation; and selection for training,
including apprenticeship. The Agency shall insert the foregoing provision (modified only to
show the particular contractual relationship) in all of its contracts in connection with the develop-
ment or operation of the Project, except contracts for standard commercial supplies or raw
materials and construction contracts, and shall require all such contractors to insert a similar
provision in all subcontracts, except subcontracts for standard commercial supplies or raw
materials.
(b) If, as a condition of assistance, the Agency has submitted, and the City
has approved, an equal employment opportunity program that the Agency agrees to carry out,
such program is incorporated into this Agreement by reference. Such program shall be treated
as a contractual obligation; and failure to carry out the terms of that equal employment
opportunity program shall be treated as a violation of this Agreement. Upon notification to the
Agency of its failure to carry out the approved program, the Government or the City will impose
such remedies as it may deem appropriate, which remedies may include termination of financial
assistance as set forth in Section 106 of Part II of the City's Agreement with the Government
or other measures that may affect the ability of the Agency to obtain future financial assistance
under the Urban Mass Transportation Act of 1964, as amended, or title 23, United States Code
(Highways).
2. Small, Minori _ty and Women's Business Enterprise. The following provisions
are applicable to the Project:
(a) The Agency shall be responsible for meeting the requirements regarding
participation by minority business enterprises (MBE) in Department of Transportation programs
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set forth at 49 C.F.R. Part 23. Pursuant to the requirements of 49 C.F.R. § 23.43, the
following clauses must be inserted in each third party contract:
(i) POLICY. IT IS THE POLICY OF THE DEPARTMENT OF TRANS-
PORTATION THAT MINORITY BUSINESS ENTERPRISES, AS DEFINED IN
49 C.F.R. PART 23, SHALL HAVE THE MAXIMUM OPPORTUNITY TO
PARTICIPATE IN THE PERFORMANCE OF CONTRACTS FINANCED IN
WHOLE OR IN PART WITH FEDERAL FUNDS UNDER THIS AGREEMENT.
CONSEQUENTLY, THE MBE REQUIREMENTS OF 49 C.F.R. PART 23 APPLY
TO THIS AGREEMENT.
(ii) MBE OBLIGATION. THE AGENCY AND ITS CONTRACTORS
AGREE TO ENSURE THAT MINORITY BUSINESS ENTERPRISES AS
DEFINED IN 49 C.F.R. PART 23 HAVE THE MAXIMUM OPPORTUNITY TO
PARTICIPATE IN THE PERFORMANCE OF CONTRACTS AND SUBCON-
TRACTS FINANCED IN WHOLE OR IN PART WITH FEDERAL FUNDS
PROVIDED UNDER THIS AGREEMENT. IN THIS REGARD ALL AGENCIES
AND CONTRACTORS SHALL TAKE ALL NECESSARY AND REASONABLE
STEPS IN ACCORDANCE WITH 49 C.F.R. PART 23 TO ENSURE THAT
MINORITY BUSINESS ENTERPRISES HAVE THE MAXIMUM OPPORTUNITY
TO COMPETE FOR. AND PERFORM CONTRACTS. AGENCY AND ITS
CONTRACTORS SHALL NOT DISCRIMINATE ON THE BASIS OF RACE,
COLOR, NATIONAL ORIGIN OR SEX IN THE AWARD AND PERFORMANCE
OF CONTRACTS ASSISTED BY THE DEPARTMENT OF TRANSPORTATION.
(b) The Agency shall advise each sub-recipient, contractor, and subcontractor
that failure to carry out the requirements set forth in 49 C.F.R. § 23.43(a) shall constitute a
breach of contract and, after the notification of the Department of Transportation, may result in
termination of the Agreement or contract by the Agency or such remedy as the Agency deems
appropriate.
(c) The Agency shall take action concerning lessees as follows:
(i) The Agency shall not exclude MBEs from participation in business
opportunities by entering into long-term, exclusive agreements with non-MBEs for the operation
of major transportation-related activities for the provision of goods and services to the facility
or to the public on the facility.
(ii) If the Agency is required to submit affirmative action programs
under 49 C.F.R. § 23.41(a)(2) or 49 C.F.R. § 23.41(a)(3) and has business opportunities for
lessees, it shall submit for approval to the Department of Transportation with its programs
overall goals for the participation as lessees of rums owned and controlled by MBEs. These
goals shall be for a specified period of time and shall be based on the factors listed in 49 C.F.R.
§ 23.45 (g)(5). The Agency shall review these goals at least annually, and whenever they
expire, analyzing projected versus actual MBE participation during the period covered by the
review and any changes in factual circumstances affecting the selection of goals. Following each
review, the Agency shall submit new overall goals to the Department of Transportation for
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approval. If Agency fa'tis to meet its goals for MBE lessees, it shall demonstrate to the City and
the Government in writing that it made reasonable efforts to meet the goals.
(iii) Except as provided in this section, the Agency is required to include
lessees in affumative action programs. Lessees themselves are not subject to the requirements
of this Part, except for the requirement under 49 C.F.R. § 23.7 that lessees avoid discrimination
against MBEs.
3. Title VI Civil Rights Act of 1964. The Agency shall comply and shall assure
the compliance by contractors and subcontractors under this Project with all requirements of
Title VI of the Civil Rights Act of 1964, 42 Id.S.C. § 2000d; Depatiment of Transportation
regulations, "Nondiscrimination in Federally-Assisted Programs of the Department of
Transportation -- Effectuation of Title VI of the Civil Rights Act," 49 C.F.R. Part 21; and the
Assurance by the Agency pursuant thereto.
4. Nondiscrimination on the Basis of Handicap. The Agency shall ensure that all
fixed facility construction or alteration and all new equipment included in the Project shall
comply with Depamnent of Transportation regulations, "Nondiscrimination on the Basis of
Handicap in Programs and Activities, Receiving or Benefitting from Federal Financial
Assistance," 49 C.F.R. Part 27, and UMTA regulations, "Transportation for Elderly and
Handicapped Persons," 49 C.F.R. Part 609, and any amendments thereto that may be issued.
5. Competition in Procurement. The Agency agrees to comply with the
Procurement Standards requirements set forth at 49 C.F.R. § 18.36 or OMB Circular A-il0,
Attachment O, as may be applicable; and with any supplementary directives or regulations
including IJMTA Circular 4220.1B; and any revisions thereof, as may be applicable. UMTA
reserves the right to review the Agency's technical specifications and requirements, where such
review is necessary for proper Project administration. The Agency further agrees that, notwith-
standing the requirements of Section 121 of Part II of the City's Agreement with the
Government, no Federal funds shall be used to support procurements utilizing exclusionary or
discriminatory specifications.
6. Force Account. The City and Government (UMTA) reserves the right to
determine the extent of its participation in force account costs.
7. Settlement of Third Party_ Contract Disputes or Breaches. The U.S. Government
has a vested interest in the settlement of any dispute, default, or breach involving any federally-
assisted third party contract. Agency agrees that the Government retains the right to a
proportionate share, based on the percentage of the Federal share committed to the Project, of
any proceeds derived from any third party recovery. Therefore the Agency shall avail itself of
all legal rights available under any third party contract. The Agency shall notify the City and
Government of any current or prospective litigation or major disputed claim pertaining to any
third party contract. The City and Government reserves the right to concur in any compromise
or settlement of any claim by the Agency involving any third party contract. If the third party
contract contains a liquidated damages provision, any liquidated damages recovered shall be
credited to the Project account involved unless the Government permits otherwise. In the event
the Agency wishes to join the Government as a named party to litigation, for any reason, the
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Agency agrees to inform the City Government before doing so; this proviso applies to any type
of litigation whatsoever, in any forum.
8. Ethics. The Agency shall maintain a written code or standards of conduct that
shall govern the performance of its officers, employees, board members, or agents engaged in
the award and administration of contracts supported by Federal funds. Such code or standards
shall provide that no employee, officer, board member, or agent of the Agency may participate
in the selection, award, or administration of a contract supported by Federal funds if a conflict
of interest, real or apparent, would be involved. Such a conflict would arise when any of the
parties set forth below has a financial or other interest in the fmu selected for award:
(i) The employee, officer, board member, or agent;
(ii) Any member of his or her immediate family;
(iii) His or her partner; or
(iv) An organization that employs, or is about to employ, any of the above.
The code or standards shall also provide that the Agency's officers, employees, board
members, or agents may neither solicit nor accept gratuities, favors or anything of monetary
value from present or potential contractors or sub-recipients. The Agency may set minimum
rules where the financial interest is not substantial or the gift is an unsolicited item of nominal
intrinsic value. As permitted by State or local law or regulations, such code or standards shall
provide for penalties, sanctions, or other disciplinary actions for violations by the Agency's
officers, employees, board members, or agents, or by contractors or sub-recipients or their
agents.
9. Interest of Members of or Delegates to Congress. No member of or delegate
to the Congress of the United States shall be admired to any share or part of this Project or to
any benefit therefrom.
U. CONSTRUCTION CONTRACTS
The following provisions are applicable to federally assisted construction contracts:
1. Nondiscrimination. Pursuant to the regulations of the Secretary of Labor at
41 C.F.R. §§ 60-1.4(b)(1) and 60-1.4(c):
(a) The Agency hereby agrees that it will incorporate or cause to be
incorporated into any contract for construction work, or modification thereof, as defined in the
regulations of the Secretary of Labor at 41 C.F.R. Chapter 60, that is paid for in whole or in
part with funds obtained from the Federal Government or borrowed on the credit of the Federal
Government pursuant to a grant, cooperative agreement, contract, loan, insurance, or guarantee,
or undertaken pursuant to a Federal program involving the grant, cooperative agreement,
contract, loan, insurance, or guarantee, the following equal opportunity clause:
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DURING THE PERFORMANCE OF THIS CONTRACT, THE CONTRACTOR
AGREES AS FOLLOWS:
(i) THE CONTRACTOR WILL NOT DISCRIMINATE AGAINST ANY
EMPLOYEE OR APPLICANT FOR EMPLOYMENT BECAUSE OF RACE,
COLOR, RELIGION, SEX, OR NATIONAL ORIGIN. THE CONTRACTOR
WILL TAKE AFFIRMATIVE ACTION TO ENSURE THAT APPLICANTS ARE
EMPLOYED, AND THAT EMPLOYEES ARE TREATED DURING EMPLOY-
MENT WITHOUT REGARD TO THEIR RACE, COLOR, RELIGION, SEX, OR
NATIONAL ORIGIN. SUCH ACTION SHALL INCLUDE, BUT NOT BE
LIMITED TO THE FOLLOWING: EMPLOYMENT, UPGRADING, DEMO-
TION, OR TRANSFER; RECRUITMENT OR RECRUITMENT ADVERTISING;
LAYOFF OR TERMINATION; RATES OF PAY OR OTHER FORMS OF
COMPENSATION; AND SELECTION FOR TRAINING, INCLUDING
APPRENTICESHIP. THE CONTRACTOR AGREES TO POST IN CONSPICU-
OUS PLACES, AVAILABLE TO EMPLOYEES AND APPLICANTS FOR
EMPLOYMENT, NOTICES TO BE PROVIDED SETTING FORTH THE PRO-
VISIONS OF THIS NONDISCRIMINATION CLAUSE.
(ii) 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.
(iii) THE CONTRACTOR WILL SEND TO EACH LABOR UNION OR
REPRESENTATIVE OF WORKERS WITH WHICH IT HAS A COLLECTIVE
BARGAINING AGREEMENT OR OTHER CONTRACT OR UNDERSTANDING,
A NOTICE TO BE PROVIDED ADVISING THE LABOR UNION OR WORK-
ERS' REPRESENTATIVE OF THE CONTRACTOR'S COMMITMENTS UNDER
SECTION 202 OF EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, AND
SHALL POST COPIES OF THE NOTICE IN CONSPICUOUS PLACES
AVAILABLE TO EMPLOYEES AND APPLICANTS FOR EMPLOYMENT.
(iv) THE CONTRACTOR WILL COMPLY WITH ALL PROVISIONS OF
EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 19.65, 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.
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(vi) IN THE EVENT OF THE CONTRACTOR'S NONCOMPLIANCE WITH
THE NONDISCRIMINATION CLAUSES OF THIS AGREEMENT OR WITH
ANY OF SUCH RULES, REGULATIONS, OR ORDERS, THIS AGREEMENT
MAY BE CANCELLED, TERMINATED, OR SUSPENDED IN WHOLE OR IN
PART AND THE CONTRACTOR MAY BE DECLARED INELIGIBLE FOR
FURTHER FEDERAL OR FEDERALLY ASSISTED CONTRACTS IN ACCOR-
DANCE WITH PROCEDURES AUTHORIZED IN EXECUTIVE ORDER 11246
OF SEPTEMBER 24, 1965, AND SUCH OTHER SANCTIONS MAY BE
IMPOSED AND REMEDIES INVOKED AS PROVIDED IN EXECUTIVE
ORDER 11246 OF SEPTEMBER 24, 1965, OR BY RULE, REGULATION, OR
ORDER OF THE SECRETARY OF LABOR, OR AS OTHERWISE PROVIDED
BY LAW.
(vii) 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 prime contractor and
subcontractor shall include in each nonexempt contract the requirements of Subsection 115. a.
(1) (a) through (g) of Part II of this Agreement.
(c) The Agency further agrees that it will be bound by this equal opportunity
clause with respect to its own employment practices when it participates in federally assisted
construction work; provided that if the Agency so participating is a State or local government,
this equal opportunity clause does not apply to any agency, instrumentality or subdivision of
such government that does not participate in work under the Agreement.
(d) The Agency agrees that it will assist and cooperate actively with UMTA
and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with
the equal opportunity clause and the roles, regulations, and relevam orders of the Secretary of
Labor; that it will provide UMTA and the Secretary of Labor such information as they may
require for the supervision of such compliance; and that it will otherwise assist UMTA in dis-
charging its primary responsibility for securing compliance.
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(e) The Agency further agrees that it will refrain from entering into any
contract or contract modification subject to Executive Order 11246 of September 24, 1965, as
amended, with any contractor that is debarred from or has not demonstrated eligibility for Gov-
ernment contracts and federally assisted construction contracts pursuant to the Executive Order;
and will carry out such sanctions and penalties for violation of the equal oPPortunity clause as
may be imposed upon contractors and subcontractors by UMTA or the Secretary of Labor
pursuant to Part II, Subpart D of the Executive Order. In addition, the Agency agrees that if
it fails or refuses to comply with these undertakings, UMTA may take any or all of the
following actions: Cancel, tenuinate, or suspend in whole or in part this Agreement; refrain
from extending any further assistance to the Agency under the program with respect to which
the failure or refusal occurred until satisfactory assurance of future compliance has been received
from such Agency; and refer the case to the Department of Justice for appropriate legal
proceedings.
2. Specifications. The Agency hereby agrees that it will incorporate or cause to
be incorporated the specifications set forth below into all Federal or federally assisted
construction contracts, or modifications thereof, in excess of $10,000 to be performed in
geographical areas designated by the Director, Office of Federal Contract Compliance Programs
of the Department of Labor pursuant to the regulations of the Secretary of Labor at 41 C.F.R.
§ 60-4.3 and in construction subcontracts in excess of $10,000 necessary in whole or in part to
the performance of nonconstmction Federal contracts and subcontracts covered under Executive
Order 11246:
STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUC-
TION CONTRACT SPECIFICATIONS (EXECUTIVE ORDER 11246):
(1) AS USED IN THESE SPECIFICATIONS:
(a) "COVERED AREA" MEANS THE GEOGRAPHICAL AREA DE-
SCRIBED IN THE SOLICITATION FROM WHICH THIS CONTRACT
RESULTED;
(b) "DIRECTOR" MEANS DIRECTOR, OFFICE OF FEDERAL
CONTRACT COMPLIANCE PROGRAMS, UNITED STATES DEPARTMENT
OF LABOR, OR ANY PERSON TO WHOM THE DIRECTOR DELEGATES
AUTHORITY;
(c) "EMPLOYER IDENTIFICATION NUMBER" MEANS THE
FEDERAL SOCIAL SECURITY NUMBER USED ON THE EMPLOYER'S
QUARTERLY FEDERAL TAX RETURN, U.S. TREASURY DEPARTMENT
FORM 941;
(d) "MINORITY" INCLUDES:
(i) BLACK (ALL PERSONS HAVING ORIGINS IN ANY OF
THE BLACK AFRICAN RACIAL GROUPS NOT OF HISPANIC ORIGIN);
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(ii) HISPANIC (ALL PERSONS OF MEXICAN, PUERTO
RICAN, CUBAN, CENTRAL OR SOUTH AMERICAN OR OTHER SPANISH
CULTURE OR ORIGIN, REGARDLESS OF RACE);
(iii) ASIAN AND PACIFIC ISLANDER (ALL PERSONS
HAVING ORIGINS IN ANY OF THE ORIGINAL PEOPLES OF THE FAR
EAST, SOUTHEAST ASIA, THE INDIAN SUBCONTINENT, OR THE PACIFIC
ISLANDS); AND
(iv) AMERICAN INDIAN OR ALASKAN NATIVE (ALL
PERSONS HAVING ORIGINS IN ANY OF THE ORIGINAL PEOPLES OF
NORTH AMERICA AND MAINTAINING IDENTIFIABLE TRIBAL AFFILIA-
TIONS THROUGH MEMBERSHIP AND PARTICIPATION OR COMMUNITY
IDENTIFICATION).
(2) WHENEVER THE CONTRACTOR, OR ANY SUBCONTRACTOR AT
ANY TIER, SUBCONTRACTS A PORTION OF THE WORK INVOLVING ANY
CONSTRUCTION TRADE, IT SHALL PHYSICALLY INCLUDE IN EACH
SUBCONTRACT IN EXCESS OF $10,000 THE PROVISIONS OF THESE
SPECIFICATIONS AND THE NOTICE WHICH CONTAINS THE APPLICABLE
GOALS FOR MINORITY AND FEMALE PARTICIPATION AND WHICH IS
SET FORTH IN THE SOLICITATIONS FROM WHICH THIS CONTRACT
RESULTED.
(3) IF THE CONTRACTOR IS PARTICIPATING (PURSUANT TO 41
C.F.R. § 60-4.5) IN A HOMETOWN PLAN APPROVED BY THE U.S.
DEPARTMENT OF LABOR IN THE COVERED AREA, EITHER INDIVIDUAL-
LY OR THROUGH AN ASSOCIATION, ITS AFFIRMATIVE ACTION
OBLIGATIONS ON ALL WORK IN THE PLAN AREA (INCLUDING GOALS
AND TIMETABLES) SHALL BE IN ACCORDANCE WITH THAT PLAN FOR
THOSE TRADES WHICH HAVE UNIONS PARTICIPATING IN THE PLAN.
CONTRACTORS MUST BE ABLE TO DEMONSTRATE THEIR PARTICIPA-
TION IN AND COMPLIANCE WITH THE PROVISIONS OF ANY SUCH
HOMETOWN PLAN. EACH CONTRACTOR OR SUBCONTRACTOR
PARTICIPATING IN AN APPROVED PLAN IS INDIVIDUALLY REQUIRED
TO COMPLY WITH ITS OBLIGATIONS UNDER THE EEO CLAUSE, AND TO
MAKE A GOOD FAITH EFFORT TO ACHIEVE EACH GOAL UNDER THE
PLAN IN EACH TRADE IN WHICH IT HAS EMPLOYEES. THE OVERALL
GOOD FAITH PERFORMANCE BY OTHER CONTRACTORS OR SUBCON-
TRACTORS TOWARD A GOAL IN AN APPROVED PLAN DOES NOT
EXCUSE ANY COVERED CONTRACTOR'S OR SUBCONTRACTOR'S
FAILURE TO MAKE. GOOD FAITH EFFORTS TO ACHIEVE THE PLAN
GOALS AND TIMETABLES.
(4) THE CONTRACTOR SHALL IMPLEMENT THE SPECIFIC AFFIR-
MATIVE ACTION STANDARDS PROVIDED IN PARAGRAPHS (7) (a)
THROUGH (p) OF THESE SPECIFICATIONS. THE GOALS SET FORTH IN
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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
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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 AVAILABI.E, AND MAINTAIN A RECORD
OF THE ORGANIZATIONS' RESPONSES.
(c) MAINTAIN A CURRENT FILE OF THE NAMES, ADDRESSES
AND TELEPHONE NUMBERS OF EACH MINORITY AND FEMALE OFF-
THE-STREET APPLICANT AND MINORITY OR FEMALE REFERRAL FROM
A UNION, A RECRUITMENT SOURCE OR COMMUNITY ORGANIZATION
AND OF WHAT ACTION WAS TAKEN WITH RESPECT TO EACH SUCH
INDIVIDUAL. IF SUCH INDIVIDUAL WAS SENT TO THE UNION HIRING
HALL FOR REFERRAL AND WAS NOT REFERRED BACK TO THE
CONTRACTOR BY THE UNION OR, IF REFERRED, NOT EMPLOYED BY
THE CONTRACTOR, THIS SHALL BE DOCUMENTED IN THE FILE WITH
THE REASON THEREFOR, ALONG WITH WHATEVER ADDITIONAL
ACTIONS THE CONTRACTOR MAY HAVE TAKEN.
(d) PROVIDE IMMEDIATE WRITTEN NOTIFICATION TO THE
DIRECTOR WHEN THE UNION OR UNIONS WITH WHICH THE CONTRAC-
TOR HAS A COLLECTIVE BARGAINING AGREEMENT HAS NOT RE-
FERRED TO THE CONTRACTOR A MINORITY PERSON OR WOMAN SENT
BY THE CONTRACTOR, OR WHEN THE CONTRACTOR HAS OTHER
INFORMATION THAT THE UNION REFERRAL PROCESS HAS IMPEDED
THE CONTRACTOR'S EFFORTS TO MEET ITS OBLIGATIONS.
(e) DEVELOP ON-THE-JOB TRAINING OPPORTUNITIES AND/OR
PARTICIPATE IN TRAINING PROGRAMS FOR THE AREA WHICH EXPRESS-
LY INCLUDE MINORITIES AND WOMEN, INCLUDING UPGRADING
PROGRAMS AND APPRENTICESHIP AND TRAINEE PROGRAMS RELEVANT
TO THE CONTRACTOR'S EMPLOYMENT NEEDS, ESPECIALLY THOSE
PROGRAMS FUNDED OR APPROVED BY THE DEPARTMENT OF LABOR.
THE CONTRACTOR SHALL PROVIDE NOTICE OF THESE PROGRAMS TO
THE SOURCES COMPILED UNDER (7)(b) ABOVE.
(f) DISSEMINATE THE CONTRACTOR'S EEO POLICY BY
PROVIDING NOTICE OF THE POLICY TO UNIONS AND TRAINING
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PROGRAMS AND REQUESTING THEIR COOPERATION IN ASSISTING THE
CONTRACTOR IN MEETING ITS EEO OBLIGATIONS; BY INCLUDING IT IN
ANY POLICY MANUAL AND COLLECTIVE BARGAINING AGREEMENT; BY
PUBLICIZING IT IN THE COMPANY NEWSPAPER, ANNUAL REPORT,
ETC.; BY SPECIFIC REVIEW OF THE POLICY WITH ALL MANAGEMENT
PERSONNEL AND WITH ALL MINORITY AND FEMALE EMPLOYEES AT
LEAST ONCE A YEAR; AND BY POSTING THE COMPANY EEO POLICY ON
BULLETIN BOARDS ACCESSIBLE TO ALL EMPLOYEES AT EACH
LOCATION WHERE CONSTRUCTION WORK IS PERFORMED.
(g) REVIEW, AT LEAST ANNUALLY, THE COMPANY'S EEO
POLICY AND AFFIRMATIVE ACTION OBLIGATIONS UNDER THESE
SPECIFICATIONS WITH ALL EMPLOYEES HAVING RESPONSIBILITY FOR
HIRING, ASSIGNMENT, LAYOFF, TERMINATION OR OTHER EMPLOY-
MENT DECISIONS INCLUDING SPECIFIC REVIEW OF THESE ITEMS WITH
ON-SITE SUPERVISORY PERSONNEL SUCH AS SUPERINTENDENTS,
GENERAL FOREMAN, ETC., PRIOR TO THE INITIATION OF CONSTRUC-
TION WORK AT ANY JOB SITE. A WRITTEN RECORD SHALL BE MADE
AND MAINTAINED IDENTIFYING THE TIME AND PLACE OF THESE
MEETINGS, PERSONS ATTENDING, SUBJECT MATTER DISCUSSED, AND
DISPOSITION OF THE SUBJECT MATTER.
(h) DISSEMINATE THE CONTRACTOR'S EEO POLICY EXTER-
NALLY BY INCLUDING IT IN ANY ADVERTISING IN THE NEWS MEDIA,
SPECIFICALLY INCLUDING MINORITY AND FEMALE NEWS MEDIA, AND
PROVIDING WRITTEN NOTIFICATION TO AND DISCUSSING THE
CONTRACTOR'S EEO POLICY WITH OTHER CONTRACTORS AND
SUBCONTRACTORS WITH WHOM THE CONTRACTOR DOES OR ANTICI-
PATES DOING BUSINESS.
(i) DIRECT RECRUITMENT EFFORTS, BOTH ORAL AND
WRITTEN, TO MINORITY, FEMALE AND COMMUNITY ORGANIZATIONS,
TO SCHOOLS WITH MINORITY AND FEMALE STUDENTS AND TO
MINORITY AND FEMALE RECRUITMENT AND TRAINING ORGANIZA-
TIONS SERVING THE CONTRACTOR'S RECRUITMENT AREA AND
EMPLOYMENT NEEDS. NOT LATER THAN ONE MONTH PRIOR TO THE
DATE FOR THE ACCEPTANCE OF APPLICATIONS FOR APPRENTICESHIP
OR OTHER TRAINING BY ANY RECRUITMENT SOURCE, THE CONTRAC-
TOR SHALL SEND WRITTEN NOTICE TO ORGANIZATIONS SUCH AS THE
ABOVE, DESCRIBING THE OPENINGS, SCREENING PROCEDURES, AND
TESTS TO BE USED IN THE SELECTION PROCESS.
0) ENCOURAGE PRESENT MINORITY AND FEMALE EMPLOY-
EES TO RECRUIT OTHER MINORITY PERSONS AND WOMEN AND,
WHERE REASONABLE, PROVIDE AFTER SCHOOL, SUMMER AND
VACATION EMPLOYMENT TO MINORITY AND FEMALE YOUTH, BOTH
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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
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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 ~ANCTIONS 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
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ACHIEVE MAXIMUM RESULTS FROM ITS EFFORTS TO ENSURE EQUAL
EMPLOYMENT OPPORTUNITY. IF THE CONTRACTOR FAILS TO COMPLY
WITH THE REQUIREMENTS OF THE EXECUTIVE ORDER, THE IMPLE-
MENTING REGULATIONS, OR THESE SPECIFICATIONS, THE DIRECTOR
SHALL PROCEED IN ACCORDANCE WITH 41 C.F.R. § 60-4.8.
(14) THE CONTRACTOR SHALL DESIGNATE A RESPONSIBLE
OFFICIAL TO MONITOR ALL EMPLOYMENT RELATED ACTIVITY TO
ENSURE THAT THE COMPANY EEO POLICY IS BEING CARRIED OUT, TO
SUBMIT REPORTS RELATING TO THE PROVISIONS HEREOF AS MAY BE
REQUIRED BY THE GOVERNMENT AND TO KEEP RECORDS. RECORDS
SHALL AT LEAST INCLUDE FOR EACH EMPLOYEE THE NAME, AD-
DRESS, TELEPHONE NUMBERS, CONSTRUCTION TRADE, UNION AFFILI-
ATION IF ANY, EMPLOYEE IDENTIFICATION NUMBER WHEN ASSIGNED,
SOCIAL SECURITY NUMBER, RACE, SEX, STATUS (E.G., MECHANIC,
APPRENTICE TRAINEE, HELPER, OR LABORER), DATES OF CHANGES IN
STATUS, HOURS WORKED PER WEEK IN THE INDICATED TRADE, RATE
OF PAY, AND LOCATIONS AT WHICH THE WORK WAS PERFORMED.
RECORDS SHALL BE MAINTAINED IN AN EASILY UNDERSTANDABLE
AND RETRIEVABLE FORM; HOWEVER; TO THE EXTENT THAT EXISTING
RECORDS SATISFY THIS REQUIREMENT, CONTRACTORS SHALL NOT BE
REQUIRED TO MAINTAIN SEPARATE RECORDS.
(15) NOTHING HEREIN PROVIDED SHALL BE CONSTRUED AS A
LIMITATION UPON THE APPLICATION OF OTHER LAWS THAT ESTAB-
LISH DIFFERENT STANDARDS OF COMPLIANCE OR UPON THE APPLICA-
TION OF REQUIREMENTS FOR THE HIRING OF LOCAL OR OTHER AREA
RESIDENTS (E.G., THOSE UNDER THE PUBLIC WORKS EMPLOYMENT
ACT OF 1977 AND THE COMMUNITY DEVELOPMENT BLOCK GRANT
PROGRAM).
3. Notice. The Agency hereby agrees that it will ensure that the notice set forth
below shall be included in, and shall be a part of, all solicitations for offers and bids on all
Federal and federally assisted construction contracts or subcontracts in excess of $10,000 to be
performed in geographical areas designated by the Director, Office of Federal Contract
Compliance Programs of the Depa, iauent of Labor at 41 C.F.R. § 60-4.2:
NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE
EQUAL EMPLOYMENT OPPORTUNITY (EXECUTIVE ORDER 11246):
(1) THE OFFEROR'S OR BIDDER'S ATTENTION IS CALLED TO THE
"EQUAL OPPORTUNITY CLAUSE" AND THE "STANDARD FEDERAL
EQUAL EMPLOYMENT SPECIFICATIONS" SET FORTH HEREIN.
(2) (a) THE GOALS AND THE TIMETABLES FOR MINORITY AND
FEMALE PARTICIPATION, EXPRESSED IN PERCENTAGE TERMS FOR THE
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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
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IDENTIFICATION NUMBER OF THE SUBCONTRACTOR; ESTIMATED
DOLLAR AMOUNT OF THE SUBCONTRACT; ESTIMATED STARTING AND
COMPLETION DATES OF THE SUBCONTRACT; AND THE GEOGRAPHICAL
AREA IN WHICH THE SUBCONTRACT IS TO BE PERFORMED.
(4) AS USED IN THIS NOTICE, AND IN THE CONTRACT RESULTING
FROM THIS SOLICITATION, THE "COVERED AREA" IS (INSERT DESCRIP-
TION OF THE GEOGRAPHICAL AREAS WHERE THE CONTRACT IS TO BE
PERFORMED, GIVING THE STATE, COUNTY AND CITY, IF ANY).
4. Accommodations for the Physically Handicapped. UMTA assisted
construction, designs, and alterations shall be undertaken in accordance with and meet the
requirements of the provisions of General Services Administration (GSA) regulations set forth
at 41 C.F.R. Subpart 101-19.6, unless an exception is granted in writing by UMTA or a waiver
is granted in writing by GSA.
5. Contract Securi_ty. The Agency shall follow the requirements of 49 C.F.R. §
18.36(h) or OMB Circular A-110, Attachment B, as applicable, and Federal (UMTA) guidelines
with regard to bid guarantees and bonding requirements.
6. Signs. The Agency shall cause to be erected at the site of construction, and
maintained during construction, signs satisfactory to the Department of Transportation identifying
the Project and indicating that the Government is participating in the development of the Project.
7. Safety Standards. Pursuant to section 107 of the Contract Work Hours and
Safety Standards Act and Depa~hnent of Labor regulations set forth at 29 C.F.R. § 1926, no
laborer or mechanic working on a construction contract shall be required to work in
surroundings or under working conditions that are unsanitary, hazardous, or dangerous to his
or her health and safety as determined under construction and health standards promulgated by
the Secretary of Labor.
8. Liquidated Damages. The Agency shall include in all contracts for construction
a clause providing for liquidated damages, where appropriate. Liquidated damages clauses are
appropriate if the parties may reasonably expect to suffer damages (increased costs on the
Project involved) from the late completion of the construction and the extent or amount of such
damages would be difficult or impossible to determine. The assessment for damages shall be
at a specific rate per day for each day of overrun in contract time; and the rate must be specified
in the third party contract. Any liquidated damages recovered shall be credited to the Project
account involved unless the Government permits otherwise.
V. Pursuant to regulations set forth at 29 C.F.R. Part 5, the following provisions shall
be incorporated in each construction contract of $25,000 let by the Agency in carrying out the
Project.
1. MINIMUM WAGES.
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(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)(iv);
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) (ii) 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
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ADDITIONAL CLASSIFICATION AND WAGE RATE AND FRINGE BENEFITS
THEREFOR ONLY WHEN THE FOLLOWING CRITERIA HAVE BEEN MET:
a. THE WORK TO BE PERFORMED BY THE CLASSIFICA-
TION REQUESTED IS NOT PERFORMED BY A CLASSIFICATION IN
THE WAGE DETERMINATION; AND
b. THE CLASSIFICATION IS UTILIZED IN THE
AREA BY THE CONSTRUCTION INDUSTRY; AND
C. THE PROPOSED WAGE RATE, INCLUDING ANY BONA
FIDE FRINGE BENEFITS, BEARS A REASONABLE RELATIONSHIP TO
THE WAGE RATES CONTAINED IN THE WAGE DETERMINATION.
2. IF THE CONTRACTOR AND THE LABORERS AND
MECHANICS TO BE EMPLOYED IN THE CLASSIFICATION (IF KNOWN),
OR THEIR REPRESENTATIVES, AND THE CONTRACTING OFFICER AGREE
ON THE CLASSIFICATION AND WAGE RATE (INCLUDING THE AMOUNT
DESIGNATED FOR FRINGE BENEFITS WHERE APPROPRIATE), A REPORT
OF THE ACTION TAKEN SHALL BE SENT BY THE CONTRACTING
OFFICER TO THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION,
EMPLOYMENT STANDARDS ADMINISTRATION, U.S. DEPARTMENT OF
LABOR, WASHINGTON, D.C. 20210. THE ADMINISTRATOR, OR AN
AUTHORIZED REPRESENTATIVE, WILL APPROVE, MODIFY, OR
DISAPPROVE EVERY ADDITIONAL CLASSIFICATION ACTION WITHIN 30
DAYS OF RECEIPT AND SO ADVISE THE CONTRACTING OFFICER OR
WILL NOTIFY THE CONTRACTING OFFICER WITHIN THE 30-DAY PERIOD
THAT ADDITIONAL TIME IS NECESSARY.
3. IN THE EVENT THE CONTRACTOR, LABORERS OR ME-
CHANICS TO BE EMPLOYED IN THE CLASSIFICATION OR THEIR
REPRESENTATIVES, AND THE CONTRACTING OFFICER DO NOT AGREE
ON THE PROPOSED CLASSIFICATION AND WAGE RATE (INCLUDING THE
AMOUNT DESIGNATED FOR FRINGE BENEFITS, WHERE APPROPRIATE),
THE CONTRACTING OFFICER SHALL REFER THE QUESTIONS INCLUDING
THE VIEWS OF ALL INTERESTED PARTIES AND THE RECOMMENDATION
OF THE CONTRACTING OFFICER, TO THE ADMINISTRATOR FOR
DETERMINATION. THE ADMINISTRATOR, OR AN AUTHORIZED
REPRESENTATIVE, WILL ISSUE A DETERMINATION WITHIN 30 DAYS OF
RECEIPT AND SO ADVISE THE CONTRACTING OFFICER OR WILL NOTIFY
THE CONTRACTING OFFICER WITHIN THE 30-DAY PERIOD THAT
ADDITIONAL TIME IS NECESSARY.
4. THE WAGE RATE (INCLUDING FRINGE BENEFITS
WHERE APPROPRIATE) DETERMINED PURSUANT TO 29 C.F.R. § 5.5(a) (i)
(1) (B) OR 29 C.F.R. § 5.5(a) (i) (1) (C), SHALL BE PAID TO ALL WORKERS
PERFORMING WORK IN THE CLASSIFICATION UNDER THIS CONTRACT
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FROM THE FIRST DAY ON WHICH WORK IS PERFORMED IN THE
CLASSIFICATION.
(c) WHENEVER THE MINIMUM WAGE RATE PRESCRIBED IN
THE CONTRACT FOR A CLASS OF LABORERS OR MECHANICS INCLUDES
A FRINGE BENEFIT WHICH IS NOT EXPRESSED AS AN HOURLY RATE,
THE CONTRACTOR SHALL EITHER PAY THE BENEFIT AS STATED IN THE
WAGE DETERMINATION OR SHALL PAY ANOTHER BONA FIDE FRINGE
BENEFIT OR AN HOURLY CASH EQUIVALENT THEREOF.
(d) IF THE CONTRACTOR DOES NOT MAKE PAYMENTS TO A
TRUSTEE OR OTHER THIRD PERSON, THE CONTRACTOR MAY CONSIDER
AS PART OF THE WAGES OF ANY LABORER OR MECHANIC THE
AMOUNT OF ANY COSTS REASONABLY ANTICIPATED IN PROVIDING
BONA FIDE FRINGE BENEFITS UNDER A PLAN OR PROGRAM, PROVID-
ED, THAT THE SECRETARY OF LABOR HAS FOUND, UPON THE
WRITTEN REQUEST OF THE CONTRACTOR, THAT THE APPLICABLE
STANDARDS OF THE DAVIS-BACON ACT HAVE BEEN MET. THE
SECRETARY OF LABOR MAY REQUIRE THE CONTRACTOR TO SET ASIDE
IN A SEPARATE ACCOUNT ASSETS FOR THE MEETING OF OBLIGATIONS
UNDER THE PLAN OR PROGRAM.
2. WITHHOLDING. UMTA SHALL UPON ITS OWN ACTION OR
UPON WRITTEN REQUEST OF AN AUTHORIZED REPRESENTATIVE OF
THE DEPARTMENT OF LABOR WITHHOLD OR CAUSE TO BE WITHHELD
FROM THE CONTRACTOR, UNDER THIS AGREEMENT OR ANY OTHER
FEDERAL CONTRACT WITH THE SAME AGENCY OR ANY OTHER
FEDERALLY-ASSISTED CONTRACT SUBJECT TO DAVIS-BACON PREVAIL-
ING WAGE REQUIREMENTS, WHICH IS WITHHELD BY THE' SAME PRIME
CONTRACTOR, SO MUCH OF THE ACCRUED PAYMENTS OR ADVANCES
AS MAY BE CONSIDERED NECESSARY TO PAY LABORERS AND
MECHANICS, INCLUDING APPRENTICES, TRAINEES, AND HELPERS,
EMPLOYED BY THE CONTRACTOR OR ANY SUBCONTRACTOR THE FULL
AMOUNT OF WAGES REQUIRED BY THE CONTRACT. IN THE EVENT OF
FAILURE TO PAY ANY LABORER OR MECHANIC, INCLUDING ANY
APPRENTICE, TRAINEE, OR HELPER, EMPLOYED OR WORKING ON THE
SITE OF THE WORK (OR UNDER THE UNITED STATES HOUSING ACT OF
1937 OR UNDER THE HOUSING ACT OF 1949 IN THE CONSTRUCTION OR
DEVELOPMENT OF THE PROJECT), ALL OR PART OF THE WAGES
REQUIRED BY THE CONTRACT, UMTA MAY, AFTER WRITTEN NOTICE
TO THE CONTRACTOR, SPONSOR, APPLICANT, OR OWNER, TAKE SUCH
ACTION AS MAY BE NECESSARY TO CAUSE THE SUSPENSION OF ANY
FURTHER PAYMENT, ADVANCE, OR GUARANTEE OF FUNDS UNTIL
SUCH VIOLATIONS HAVE CEASED.
3. PAYROLLS AND BASIC RECORDS. (a) PAYROLLS AND BASIC
RECORDS RELATING THERETO SHALL BE MAINTAINED BY THE
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CONTRACTOR DURING THE COURSE OF THE WORK AND PRESERVED
FOR A PERIOD OF THREE YEARS THEREAFTER FOR ALL LABORERS AND
MECHANICS WORKING AT THE SITE OF THE WORK (OR UNDER THE
UNITED STATES HOUSING ACT OF 1937, OR UNDER THE HOUSING ACT
OF 1949, IN THE CONSTRUCTION OR DEVELOPMENT OF THE PROJECT).
SUCH RECORDS SHALL CONTAIN THE NAME, ADDRESS, AND SOCIAL
SECURITY NUMBER OF EACH SUCH WORKER, HIS OR HER CORRECT
CLASSIFICATION, HOURLY RATES OF WAGES PAID (INCLUDING RATES
OF CONTRIBUTIONS OR COSTS ANTICIPATED FOR BONA FIDE FRINGE
BENEFITS OR CASH EQUIVALENTS THEREOF OF THE TYPES DESCRIBED
IN SECTION 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) (i). THIS INFORMATION MAY BE SUBMITTED IN ANY FORM
DESIRED. OPTIONAL FORM WH-347 IS AVAILABLE FOR THIS PURPOSE
AND MAY BE PURCHASED FROM THE SUPERINTENDENT OF 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.
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2. EACH PAYROLL SUBMITTED SHALL BE ACCOMPA-
NIED BY A "STATEMENT OF COMPIJANCE," SIGNED BY THE CONTRAC-
TOR OR SUBCONTRACTOR OR HIS OR HER AGENT WHO PAYS OR
SUPERVISES THE PAYMENT OF THE PERSONS EMPLOYED UNDER THE
CONTRACT AND SHALL CERTIFY THE FOLLOWING:
(a) THAT THE PAYROLL FOR THE PAYROLL
PERIOD CONTAINS THE INFORMATION REQUIRED TO BE MAINTAINED
UNDER 29 C.F.R. § 5.5 (a) (3) (i) 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) (ii) (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
31 U.S.C. § 231.
(c) THE CONTRACTOR OR SUBCONTRACTOR SHALL MAKE
THE RECORDS REQUIRED UNDER 29 C.F.R. § 5.5(a) (3) (i) AVAILABLE
FOR INSPECTION, COPYING, OR TRANSCRIPTION BY AUTHORIZED
REPRESENTATIVES OF UMTA OR THE DEPARTMENT OF LABOR, AND
SHALL PERMIT SUCH 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
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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
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FOR THE APPLICABLE CLASSIFICATION. IF THE ADMINISTRATOR
DETERMINES THAT A DIFFERENT PRACTICE PREVAILS FOR THE
APPLICABLE APPRENTICE CLASSIFICATION, FRINGE BENEFITS SHALL
BE PAID IN ACCORDANCE WITH THAT DETERMINATION. IN THE
EVENT THE BUREAU OF APPRENTICESHIP AND TRAINING, OR A STATE
APPRENTICESHIP AGENCY RECOGNIZED BY THE BUREAU, WITHDRAWS
APPROVAL OF AN APPRENTICESHIP PROGRAM, THE CONTRACTOR WILL
NO LONGER BE PERMITTED TO UTILIZE APPRENTICES AT LESS THAN
THE APPLICABLE PREDETERMINED RATE FOR THE WORK PERFORMED
UNTIL AN ACCEPTABLE PROGRAM IS APPROVED.
(b) TRAINEES. EXCEPT AS PROVIDED IN 29 C.F.R. § 5.16,
TRAINEES WILL NOT BE PERMITTED TO WORK AT LESS THAN THE
PREDETERMINED RATE FOR THE WORK PERFORMED UNLESS THEY ARE
EMPLOYED PURSUANT TO AND INDIVIDUALLY REGISTERED IN A
PROGRAM WHICH HAS RECEIVED PRIOR APPROVAL, EVIDENCED BY
FORMAL CERTIFICATION BY THE U. S. DEPARTMENT OF LABOR,
EMPLOYMENT AND TRAINING ADMINISTRATION. THE RATIO OF
TRAINEES TO JOURNEYMEN ON THE JOB SITE SHALL NOT BE GREATER
THAN PERMITTED UNDER THE PLAN APPROVED BY THE EMPLOYMENT
AND TRAINING ADMINISTRATION. EVERY TRAINEE MUST BE PAID AT
NOT LESS THAN THE RATE SPECIFIED IN THE APPROVED PROGRAM
FOR THE TRAINEE'S LEVEL OF PROGRESS, EXPRESSED AS A PERCENT-
AGE OF THE JOURNEYMAN HOURLY RATE SPECIFIED IN THE APPLICA-
BLE WAGE DETERMINATION. TRAINEES SHALL BE PAID FRINGE
BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE TRAINEE
PROGRAM. IF THE TRAINEE PROGRAM DOES NOT MENTION FRINGE
BENEFITS, TRAINEES SHALL BE PAID THE FULL AMOUNT OF FRINGE
BENEFITS LISTED ON THE WAGE DETERMINATION UNLESS THE
ADMINISTRATOR OF THE WAGE AND HOUR DIVISION DETERMINES
THAT THERE IS AN APPRENTICESHIP PROGRAM ASSOCIATED WITH THE
CORRESPONDING JOURNEYMAN WAGE RATE ON THE WAGE DETERMI-
NATION, THAT PROVIDES FOR LESS THAN FULL FRINGE BENEFITS FOR
APPRENTICES. ANY EMPLOYEE LISTED ON THE PAYROLL AT A
TRAINEE RATE WHO IS NOT REGISTERED AND PARTICIPATING IN A
TRAINING PLAN APPROVED BY THE EMPLOYMENT AND TRAINING
ADMINISTRATION SHALL BE PAID NOT LESS THAN THE APPLICABLE
WAGE RATE ON THE WAGE DETERMINATION FOR THE CLASSIFICATION
OF WORK ACTUALLY PERFORMED. IN ADDITION, ANY TRAINEE
PERFORMING WORK ON THE JOB SITE IN EXCESS OF THE RATIO
PERMITTED UNDER THE REGISTERED PROGRAM SHALL BE PAID NOT
LESS THAN THE APPLICABLE WAGE RATE ON THE WAGE DETERMINA-
TION FOR THE WORK ACTUALLY PERFORMED. IN THE EVENT THE
EMPLOYMENT AND TRAINING ADMINISTRATION WITHDRAWS APPROV-
AL OF A TRAINING PROGRAM, THE CONTRACTOR WILL NO LONGER BE
PERMITTED TO UTILIZE TRAINEES AT LESS THAN THE APPLICABLE
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PREDETERMINED RATE FOR THE WORK PERFORMED UNTIL AN
ACCEPTABLE PROGRAM IS APPROVED.
(c) EQUAL EMPLOYMENT OPPORTUNITY. THE UTILIZATION
OF APPRENTICES, TRAINEES, AND JOURNEYMEN UNDER 29 C.F.R. PART
5 SHALL BE IN CONFORMITY WITH THE EQUAL EMPLOYMENT
OPPORTUNITY REQUIREMENTS OF EXECUTIVE ORDER 11246, AS
AMENDED, AND 29 C.F.R. PART 30.
5. COMPLIANCE WITH COPELAND ACT REQUIREMENTS. THE
CONTRACTOR SHALL COMPLY WITH THE REQUIREMENTS OF 29 C.F.R.
PART 3, WHICH ARE INCORPORATED HEREIN BY REFERENCE.
6. CONTRACT TERMINATION: DEBARMENT. A BREACH OF THE
CONTRACT CLAUSES IN 29 C.F.R. § 5.5 MAY BE GROUNDS FOR
TERMINATION OF THE CONTRACT, AND FOR DEBARMENT AS A
CONTRACTOR AND A SUBCONTRACTOR AS PROVIDED IN 29 C.F.R. §
5.12.
7. COMPLIANCE WITH DAVIS-BACON AND RELATED ACT
REQUIREMENTS. ALL RULINGS AND INTERPRETATIONS OF THE DAVIS-
BACON AND RELATED ACTS CONTAINED IN 29 C.F.R. PARTS 1, 3, AND
5 ARE INCORPORATED HEREIN BY REFERENCE.
8. DISPUTES CONCERNING LABOR STANDARDS. DISPUTES
ARISING OUT OF THE LABOR STANDARDS PROVISIONS OF THIS
CONTRACT SHALL NOT BE SUBJECT TO THE GENERAL DISPUTES
CLAUSE OF THIS CONTRACT. SUCH DISPUTES SHALL BE RESOLVED IN
ACCORDANCE WITH THE PROCEDURES OF THE DEPARTMENT OF
LABOR SET FORTH IN 29 C.F.R. PARTS 5, 6, AND 7. DISPUTES WITHIN
THE MEANING OF THIS CLAUSE INCLUDE DISPUTES BETWEEN THE
CONTRACTOR (OR ANY OF ITS SUBCONTRACTORS) AND THE CON-
TRACTING AGENCY, THE U. S. DEPARTMENT OF LABOR, OR THE
EMPLOYEES OR THEIR REPRESENTATIVES.
9. (a) CERTIFICATION OF ELIGIBILITY. BY ENTERING INTO
THIS AGREEMENT OR A THIRD PARTY CONTRACT FINANCED UNDER
THIS AGREEMENT, THE CONTRACTOR CERTIFIES THAT NEITHER IT
(NOR HE NOR SHE) NOR ANY PERSON OR FIRM THAT HAS AN INTEREST
IN THE CONTRACTOR'S FIRM IS A PERSON OR FIRM INELIGIBLE TO BE
AWARDED GOVERNMENT CONTRACTS BY VIRTUE OF SECTION 3 (a) OF
THE DAVIS-BACON ACT OR 29 C.F.R. § 5.12(a) (1).
(b) NO PART OF THIS CONTRACT SHALL BE SUBCONTRACT-
ED TO ANY PERSON OR FIRM INELIGIBLE FOR AWARD OF A GOVERN-
MENT CONTRACT BY VIRTUE OF SECTION 3(a) OF THE DAVIS-BACON
ACT OR 29 C.F.R. § 5.12(a) (1).
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(c) THE PENALTY FOR MAKING FALSE STATEMENTS IS
PRESCRIBED IN THE U.S. CRIMINAL CODE, 18 U.S.C. § 1001.
10. OVERTIME REQUIREMENTS. NO CONTRACTOR OR SUBCON-
TRACTOR CONTRACTING FOR ANY PART OF THE CONTRACT WORK
WHICH MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS
OR MECHANICS SHALL REQUIRE OR PERMIT ANY SUCH LABORER OR
MECHANIC IN ANY WORK WEEK IN WHICH HE OR SHE IS EMPLOYED
ON SUCH WORK TO WORK IN EXCESS OF FORTY HOURS IN SUCH WORK
WEEK UNLESS SUCH LABORER OR MECHANIC RECEIVES COMPENSA-
TION AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE
BASIC RATE OF PAY FOR ALL HOURS WORKED IN EXCESS OF FORTY
HOURS IN SUCH WORK WEEK.
11. VIOLATION; LIABILITY FOR UNPAID WAGES; LIQUIDATED
DAMAGES. IN THE EVENT OF ANY VIOLATION OF THE REQUIREMENTS
OF 29 C.F.R. § 5.5(b) (1), THE CONTRACTOR AND ANY SUBCONTRACTOR
RESPONSIBLE THEREFOR SHALL BE LIABLE FOR THE UNPAID WAGES.
IN ADDITION, SUCH CONTRACTOR AND SUBCONTRACTOR SHALL BE
LIABLE TO THE UNITED STATES (IN THE CASE OF WORK DONE UNDER
CONTRACT FOR THE DISTRICT OF COLUMBIA OR A TERRITORY, TO
SUCH DISTRICT OR TO SUCH TERRITORY) FOR LIQUIDATED DAMAGES.
SUCH LIQUIDATED DAMAGES SHALL BE COMPUTED WITH RESPECT TO
EACH INDIVIDUAL LABORER OR MECHANIC, INCLUDING WATCHMEN
AND GUARDS, EMPLOYED IN VIOLATION OF 29 C.F.R. § 5.5(b) (1) IN THE
SUM OF $10 FOR EACH CALENDAR DAY ON WHICH SUCH INDIVIDUAL
WAS REQUIRED OR PERMITTED TO WORK IN EXCESS OF THE STAN-
DARD WORK WEEK OF FORTY HOURS WITHOUT PAYMENT OF THE
OVERTIME WAGES REQUIRED BY 29 C.F.R. § 5.5(b) (1).
12. WITHHOLDING FOR UNPAID WAGES AND LIQUIDATED
DAMAGES. UMTA OR THE AGENCY SHALL UPON ITS OWN ACTION OR
UPON WRITTEN REQUEST OF AN AUTHORIZED REPRESENTATIVE OF
THE DEPARTMENT OF LABOR WITHHOLD OR CAUSE TO BE WITHHELD,
FROM ANY MONEYS PAYABLE ON ACCOUNT OF WORK PERFORMED BY
THE CONTRACTOR OR SUBCONTRACTOR UNDER ANY SUCH CONTRACT
OR ANY OTHER FEDERAL CONTRACT WITH THE SAME PRIME CON-
TRACTOR, OR ANY OTHER FEDERALLY-ASSISTED CONTRACT SUBJECT
TO THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT,
WHICH IS HELD BY THE SAME PRIME CONTRACTOR, SUCH SUMS AS
MAY BE DETERMINED TO BE NECESSARY TO SATISFY ANY LIABILITIES
OF SUCH CONTRACTOR OR SUBCONTRACTOR FOR UNPAID WAGES AND
LIQUIDATED DAMAGES AS PROVIDED IN THE CLAUSE SET FORTH AT
29 C.F.R. § 5.5(b) (2).
13. SUBCONTRACTS. THE CONTRACTOR OR SUBCONTRACTOR
SHALL INSERT IN ANY SUBCONTRACTS THE CLAUSES SET FORTH IN
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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.
Nonconstmction Contracts. Pursuant to the regulations set forth at 29 C.F.R. Part 5, the
following provisions shall be incorporated in all federally-assisted non-construction contracts of
$2,500 let by the Agency in carrying out the Project:
NONCONSTRUCTION CONTRACTS. THE REQUIREMENTS OF THE
CLAUSES CONTAINED IN 29 C.F.R. § 5.5(b) OR SUBSECTIONS l16.a.(10)
THROUGH 116.a.(13) OF PART II OF THIS AGREEMENT ARE APPLICABLE
TO ANY CONTRACT SUBJECT TO THE OVERTIME PROVISIONS OF THE
CONTRACT WORK HOURS AND SAFETY STANDARDS ACT AND NOT TO
ANY OF THE OTHER STATUTES CITED IN 29 C.F.R. § 5.1. THE CON-
TRACTOR OR SUBCONTRACTOR SHALL MAINTAIN PAYROLLS AND
BASIC PAYROLL RECORDS DURING THE COURSE OF THE WORK AND
SHALL PRESERVE THEM FOR A PERIOD OF THREE YEARS FROM THE
COMPLETION OF THE CONTRACT FOR ALL LABORERS AND MECHAN-
ICS, INCLUDING GUARDS AND WATCHMEN, WORKING ON THE
CONTRACT. SUCH RECORDS SHALL CONTAIN THE NAME AND
ADDRESS OF EACH SUCH EMPLOYEE, SOCIAL SECURITY NUMBER,
CORRECT CLASSIFICATIONS, HOURLY RATES OF WAGES PAID, DAILY
AND WEEKLY NUMBER OF HOURS WORKED, DEDUCTIONS MADE, AND
ACTUAL WAGES PAID. THE RECORDS TO BE MAINTAINED UNDER THIS
CLAUSE SHALL BE MADE AVAILABLE BY THE CONTRACTOR OR SUB-
CONTRACTOR FOR INSPECTION, COPYING, OR TRANSCRIPTION BY
AUTHORIZED REPRESENTATIVES OF UMTA, DOT, OR THE DEPARTMENT
OF LABOR, AND THE CONTRACTOR OR SUBCONTRACTOR WILL PERMIT
SUCH REPRESENTATIVES TO INTERVIEW EMPLOYEES DURING
WORKING HOURS ON THE JOB.
W. Environmental, Resource, Energy Protection, and Conservation Requirements.
1. The National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§
4321 et seq.; 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 seq.; the Federal Water Pollution Control Act, as amended, 33
U.S.C. §§ 1251 et seq.; and implementing regulations, in the facilities that are involved in the
Project for which Federal assistance is given. The Agency shall ensure that the facilities under
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ownership, lease or supervision, whether directly or under contract, that will be utilized in the
accomplishment of the Project are not listed on the Environmental Protection Agency (EPA) List
of Violating Facilities. Contracts, subcontracts, and sub-grants of amounts in excess of
$100,000 shall contain a provision requiting compliance with all applicable standards, orders,
or requirements issued pursuant to Federal statute or regulation. The Agency and any third
party contractor thereof shall be responsible for reporting any violations to City and UMTA and
to the EPA Assistant Administrator for Enforcement. In addition, the Agency shall notify City
and UMTA of the receipt of any communication from the Director of the EPA Office of Federal
Activities indicating that a facility to be utilized in the Project is under consideration for listing
by EPA.
3. No facilities or equipment shall be acquired, constructed, or improved as a part
of the Project unless the Agency obtains satisfactory assurances that they are (or will be)
designed and equipped to limit air pollution as provided in accordance with the following EPA
regulations: "Control of Air Pollution from Motor Vehicles and Motor Vehicle Engines," 40
C.F.R. Part 85; "Control of Air Pollution from New Motor Vehicles and New Motor Vehicle
Engines; Test Procedures for Light-Duty Vehicles and Light-Duty Trucks and Selective
Enforcement Auditing of New Light-Duty Vehicles, Light-Duty Trucks and Heavy-Duty
Engines," 40 C.F.R. Part 86; and "Fuel Economy of Motor Vehicles," 40 C.F.R. Part 600; in
accordance with applicable federally-approved State Implementation Plan(s) (in particular, the
Transportation Control Measures); and in accordance with appropriate UMTA directives and all
other applicable standards.
4. No publicly owned land from a park, recreation area, or wildlife or waterfowl
refuge of national, State, or local significance as dete,mined by the Federal, State, or local
officials having jurisdiction thereof, or any land from an historic site of national, State, or local
significance may be used for the Project unless specific findings required under 49 U.S.C. § 303
are made by the Department of Transportation.
5. The Agency shall assist the Government (UMTA) to comply with section 106
of the National Historic Preservation Act involving historic and archaeological preservation by:
(1) Consulting the State Historic Preservation Officer on the conduct of
investigations, in accordance with Advisory Council on Historic Preservation regulations,
"Protection of Historic and Cultural Properties," 36 C.F.R. Part 800, to identify properties and
resources listed in or eligible for inclusion in the National Register of Historic Places that may
be affected by the Project, and notifying the Government (UMTA) of the existence of any such
properties; and
(2) Complying with all Federal requirements to avoid or mitigate adverse
effects upon such properties.
~6. The Agency and its third party contractors shall comply with mandatory
standards and policies relating to energy efficiency that are contained in applicable State energy
conservation plans issued in compliance with the Energy Policy and Conservation Act, 42
U.S.C. §§ 6321 et seq.
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7. Should the proposed Project cause adverse environmental effects, the Agency
shall take all reasonable steps to minimize such effects pursuant to 49 U.S.C. app. § 1610, other
applicable statutes, and the procedures set forth in 23 C.F.R. Part 771. The Agency shall
undertake all environmental mitigation measures that may be identified as commitments in
applicable environmental documents (such as environmental assessments, environmental impact
statements, memoranda of agreements, and statements required by 49 U.S.C. § 303) and with
any conditions imposed by the Government as part of a finding of no significant impact or a
record of decision; all such mitigation measures are incorporated in and made part of this
Agreement by reference. In the event that some or all mitigation measures are deferred, once
such measures are agreed upon by the Government, City and the Agency, those mitigation
methods subsequently determined will be incorporated into this Agreement. Such mitigation
measures may not be modified or withdrawn without the express written approval of the
Government.
8. In carrying out the Project, the Agency shall make all appropriate efforts to.
foster the use of fly ash, substantially in compliance with EPA regulations "Guideline for
Federal Procurement of Cement and Concrete Containing Fly Ash," 40 C.F.R. Part 249.
Should the Agency make a determination that the use of fly ash is inappropriate in a particular
procurement of cement or concrete, the Agency shall provide UMTA a written justification to
support that decision.
X. MISCELLANEOUS
1. Agency shall comply with Department of Transportation regulations, "Unifomi
Relocation and Real Property Acquisition Regulation for Federal and Federally Assisted
Programs," 49 C.F.R. Part 24.
2. Agency shall comply with the flood insurance purchase requirements of section
102(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. § 4012(a), with respect to any
construction or acquisition Project.
3. Agency shall comply with the bus testing requirements as set forth in section
12(h) of the Urban Mass Transportation Act of 1964, as amended, 49 U.S.C. app. § 1608(h),
and any implementing regulations that may be issued thereunder.
4. Agency shall comply with any regulations that may be issued to implement
section 12(j) of the Urban Mass Transportation Act, of 1964, as amended, 49 U.S.C. app. §
16080).
5. If any invention, improvement, or discovery of the Agency or any of its third
party contractors is conceived or first actually reduced to practice in the course of or under this
Project, which invention, improvement, or discovery may be patentable under the laws of the
United States of America or any foreign country, the Agency shall immediately notify the
Government (UMTA) and provide a detailed report. The rights and responsibilities of the
Agency, third party contractors, the City and the Government with respect to such invention,
improvement, or discovery will be determined in accordance with applicable Federal laws,
regulations, policies, and any waiver thereof.
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6. Rights in Data.
a. The temx "subject data" as used herein means recorded information,
whether or not copyrighted, that is delivered or specified to be delivered under this Agreement.
The term includes graphic or pictorial delineations in media, such as drawings or photographs;
text in specifications or related performance or design-type documents; machine forms such as
punched cards, magnetic tape, or computer memory printouts; and information retained in
computer memory. Examples include, but are not limited to: computer software, engineering
drawings and associated lists, specifications, standards, process sheets, manuals, technical
reports, catalog item identifications, and related information. The texm does not include
financial reports, cost analyses, and similar information incidental to Project administration.
b. The following restrictions apply to all subject data first produced in the
performance of this Agreement:
(1) Except for its own internal use, the Agency may not publish or reproduce
such data in whole or in pan, or in any manner or form, nor may the Agency authorize others
to do so, without the written consent of the City and the Government, until such time as the
Government may have either released or approved the release of such data to the public; this
restriction on publication, however, does not apply to Agreements with academic institutions.
(2) As authorized by 49 C.F.R. Part 18.34, the City and the Government
(UMTA) reserve a royalty-free, non-exclusive and irrevocable license to reproduce, publish or
otherwise use, and to authorize others to use, for Federal Government purposes:
(a) Any work developed under a grant, cooperative agreement, sub-
grant, sub-agreement, or third party contract, irrespective of whether or not a copyright has been
obtained; and
(b) Any rights of copyright to which a Agency, sub-recipient, or a third
party contractor purchases ownership with Federal assistance.
c. Agency understands and agrees that, in addition to the rights set forth in
Subsection 119.b.(2) of Part II of this Agreement, UMTA may make available to any UMTA
recipient, sub-grantee, sub-recipient, third party contractor, or third party subcontractor, either
UMTA's license in the copyright to the "subject data" derived under this Agreement or a copy
of the "subject data" first produced under this Agreement.
d. The City and Agency shall indemnify, save and hold hramless the Govern-
ment, its officers, agents, and employees acting within the scope of their official duties against
any liability, including costs and expenses, resulting from any willful or intentional violation by
the Agency of proprietary rights, copyrights, or right of privacy, arising out of the publication,
translation, reproduction, delivery, use, or disposition of any data furnished under this
Agreement.
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e. Nothing contained in this clause shall imply a license to the City or
Government under any patent or be construed as affecting the scope of any license or other right
otherwise granted to the City or Government under any patent.
f. Subsections b., c. and d. of Part II of this Section are not applicable to material
fumisbed to the Agency by the U. S. Government and incorporated in the work furnished under
the Agreement; provided that such incorporated material is identified by the Agency at the time
of delivery of such work.
g. In the event that the Project, which is the subject of this Agreement, is not
completed, for any reason whatsoever, all data developed under that Project shall become subject
data as defined in Subsection 119.a. of Part II of the City's Agreement with the Government and
shall be delivered as the Government may direct.
h. The requirements of Subsections a. through g. of this Section shall be included
in all third party contracts of the Agency under this Project.
7. Privacy. Should the Agency, or any or its third party contractors, sub-grantees, sub-
recipients or their employees administer any system of records on behalf of the Federal Govern-
ment, the Privacy Act of 1974, 5 U.S.C. § 552a (the Act), imposes information restrictions on
the party administering the system of records.
a. For purposes of the Privacy Act, when the Agreement involves the operation
of a system of records on individuals to accomplish a Government function, the Agency and any
third party contractors, sub-grantees, sub-recipients and their employees involved therein are
considered to be Government employees with respect to the Government function. The
requirements of the Act, including the civil and criminal penalties for violations of the Act,
apply to those individuals involved. Failure to comply with the terms of the Act will make this
Agreement subject to termination.
b. As used herein:
(1) "Operation of a system of records" means performance of any of the
activities associated with maintaining the system of records on behalf of the Government
including the collection, use and dissemination of records.
(2) "Record" means any item, collection, or grouping of infovnation about
an individual that is maintained by the Agency on behalf of the Government including, but not
limited to, his or her education, financial transactions, medical history, and criminal or
employment history and that contains his or her name, or the identifying number, symbol, or
other identifying particular assigned to the individual, such as a finger or voice print or a
photograph.
(3) "System of records" on individuals means a group of any records under
the control of the Agency on behalf of the Government from which information is retrieved by
the name of the individual or by some identifying number, symbol or other identifying particular
assigned to the individual.
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Y. GENERAL PROVISIONS
a. Bonus or Commission. The Agency warrants that it has not paid, and also
agrees not to pay, any bonus or commission for the purpose of obtaining approval of its
application for the financial assistance hereunder.
b. State or Territorial Law. Except to the extent that a Federal statute or
regulation conflicts with State or territorial law, nothing in the Agreement shall require the
Agency to observe or enforce compliance with any provision thereof, perfo,n any other act, or
do any other thing in contravention of any applicable State or territorial law; however, if any
of the provisions of the Agreement violate any applicable State or territorial law, or if compli-
ance with the provisions of the Agreement would require the Agency to violate any applicable
State territorial law, the Agency shall at once notify the Government (UMTA) in writing in
order that appropriate arrangements may be made by the Government and the Agency to the end
that the Agency may proceed as soon as possible with the Project.
c. Records. The Agency will, for each local fiscal year ending on or after July
1, 1978, conform to the reporting system and the uniform system of accounts and records to the
extent required by section 15 of the Urban Mass Transportation Act of 1964, as amended, 49
U.S.C. app. § 1611, effective for each local fiscal year ending on or after July l, 1978, and
applicable regulations-"Unifoxm System of Accounts and Records and Reporting System," set
forth at 49 C.F.R. Part 630.
d. Severabilit3,. If any provision of this Agreement is held invalid, the remainder
of this Agreement shall not be affected thereby if such remainder would then continue to
conform to the re,ms and requirements of applicable law.
IN WITNESS WHE~REOF, the pa.l~ies do ~geby affix their signatures and enter into this
Agreement as of the//~' day of ~ , 1997.
CITY OF DENTON, TEXAS
JACK~I~LLER, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
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ORmNANCE NO. fOf-ilb"-
DER AND EXTENSION TO THE FIRST AMENDMENT TO THE AGREEMENT BETWEEN
THE CITY OF DENTON, TEXAS AND SPAN. INC. RELATING TO PUBLIC TRANSPOR-
TATION WITHIN THE CITY; AUTHORIZING EXPENDITURE OF FUNDS AS PROVIDED
IN SAID FIRST AMENDMENT AGREEMENT; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, pursuant to Ordinance No. 97-118 thc City of Denton entered into a First
Amendment to an Agreement to provide public transportation with Span, Inc., dated April 15,
1997 (the "Amendment Agreement"); and
WHEREAS, the City Council of the City of Denton finds that it is in the public interest to
authorize a change order to the Amendment Agreement to extend its terms until July 18, 2000;
and
WHEREAS, this change order does not exceed 25 % of the original contract price; and
WHEREAS, the City Council deems it in the public interest to authorize the City Man-
ager to execute the attached Change Order; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager is hereby authorized to execute the Change Order to the
Amendment Agreement to extend its terms until July 18, 2000 in substantially the form of the
attached Change Order, which is made a part of this ordinance by reference. The Change Order
is effective retroactively to October 1, 1999.
SECTION 2. The City Manager is hereby authorized to expend funds as provided in thc
Amendment Agreement as extended by the Changer Order. All previous payments and actions
made by the City under the Amendment Agreement f~om and after October 1, 1999 are hereby
ratified.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval and shall have retroactive effect from and after October 1, 1999.
PASSED AND APPROVED this the ,~/~f-, day of ~/'fi'~~ ,2000.
JA~
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPI~VED ~r
AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
B Y: ~~"~,~--~-
F Xshared~dept~LGL\Our Documents\Ordinancesk9 8~ydro pump change order doc
Page 2
CHANGE ORDER TO THE
FIRST AMENDMENT TO THE AGREEMENT
BETWEEN THE CITY OF DENTON AND SPAN, INC.
This Change Order to the First Amendment to the Agreement between the City of
Denton. Texas ("City") and Span, Inc. ("Span"), dated April 15, 1997 (the "Amendment
Agreement") is entered into as of the date set forth below.
1. The City and Span agree that the terms and conditions of the Amendment
Agreement are extended from and after October 1, 1999 through July 18, 2000. Such extension
shall have retroactive effect from and after October 1, 1999.
2. The City hereby ratifies any payments and actions undertaken by it under the
Amendment Agreement for the benefit of the City and Span, from and after October 1, 1999 to
the present.
3. Span hereby ratifies any actions undertaken by it under the Amendment
Agreement for the benefit of Span and the City, from and after October 1, 1999 to the present.
2000.
SIGNED as ofthe~/ dayof ,
CITY OF DENTON, TEXAS
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
N e: .Z::,,-i/c,~
Title: ~,r,. t .,,,~/b~,_ .~; t',,~-v~Porc~