1993-177E \WPD0CS\0RD\SPAN ORD
NO ?3 _j Z7
AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF DENTON AND
SERVICES PROGRAM FOR AGING NEEDS (SPAN), AUTHORIZING THE MAYOR TO
EXECUTE THE AGREEMENT, APPROVING THE EXPENDITURE OF FUNDS THEREFOR,
AND PROVIDING FOR AN EFFECTIVE DATE
WHEREAS, the City Council has determined that it is in the best
interest of the citizens of the city to provide public funds to
services Program for Aging Needs (SPAN), in consideration of the
valuable public services to be furnished by SPAN to the City of
Denton in accordance with the Agreement attached hereto, NOW,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
SECTION I. That the City council hereby approves the Agreement
attached hereto, between the city of Denton and Services Program
for Aging Needs (SPAN), and authorizes the Mayor to execute said
Agreement
SECTION II. That the City Council authorizes the expenditure
of funds as specified in the Agreement, not to exceed the amount of
funds granted the City by the United States Department of Transpor-
tation for transportation services
SECTION III. That this ordinance shall become effective immed-
iately upon its passage and approval
PASSED AND APPROVED this the eA* day o 1993
ATTEST
JENNIFER WALTERS, CITY SECRETARY
BY
APPROVED AS TO LEGAL FORM
DEBRA A DRAYOVITCH, CITY ATTORNEY
O
BY I
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"Illy' 1
h \NPDOMURBANT K
AGREEMENT BETWEEN THE
CITY OF DENTONI TEXAS AND SERVICES
PROGRAM FOR AGING NEEDS (SPAN)
This Agreement is hereby entered into by and between the City
of Denton, Texas, a Home Rule Municipal Corporation, (hereinafter
referred to as City) and Services Program for Aging Needs (SPAN),
a Texas non-profit corporation, (hereinafter referred to as Agen-
cy), and
WHEREAS, the City Manager has determined that the Agency is
the transportation provider for the City and provides a needed
service to citizens of the City and the City Council has provided
for funds in its budget for the purpose of paying for contractual
services as well as providing for eligible Federal Transit Adminis-
tration funds, and
WHEREAS, the City has received grants from the Federal Tran-
sit Administration and the Texas Department of Transportation to
provide public transportation in the Denton urbanized area and
wishes to contract with SPAN to provide such services,
NOW, THEREFORE, the parties hereto mutually agree as follows
I. SCOPE OF SERVICES
The Agency shall in a satisfactory and proper manner perform
the following Project undertake and complete the Project, and pro-
vide for the use of the Project facilities or equipment, substan-
tially as described in City's Application for Federal funding,
which is incorporated herein by reference, filed with and approved
by the U S Government, and in accordance with the terms and con-
ditions of this Agreement, including
A Providing transportation within the city limits for persons
sixty years old or older and persons with disabilities during the
hours of 7 00 a m to 7 00 p m , Monday through Friday, and
Saturdays from 10 00 a m to 6 00 p m
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
E Before amending its fares, Agency shall send notice to City
informing it of the proposed amendment The City shall consider
whether it shall approve the amendment If the City does not take
action to approve or disapprove the proposed fare within 60 days,
it shall be deemed to have approved the proposed fare
F Agency may contract with other persons or companies in ac-
cordance with the terms and conditions of this agreement to provide
the services specified herein during times when Agency does not
operate Transportation services provided by such subcontractees
shall be in accordance with the terms and conditions of this Agree-
ment
II. OBLIGATIONS OF AGENCY
In consideration of the receipt of funds from the City, Agency
agrees to the following terms and conditions
A It will establish a separate bank account for deposit of
funds paid to the Agency by the City and the only expenditures from
this account, until such time as said funds are exhausted, shall be
for those expenses listed in the scope of services as provided for
herein Agency shall not commingle funds received from other
sources in this account and shall not utilize these funds for any
other purpose
B It will establish, operate, and maintain an account system
for this program that will allow for a tracing of funds and a re-
view of the financial status of the project and will permit autho-
rized officials for the City of Denton to review its books at any
time
c It will comply with all federal statutes and regulations
promulgated thereunder applicable to the Agency
D It will comply with all provisions of the contract between
the City and the State Department of Transportation, approved by
the City of Denton on September 1, 1992, a copy of which is at-
tached hereto as Exhibit "A" and incorporated by reference herein
E It will reduce to writing all of its rules, regulations,
and policies and file a copy with the City's Executive Director of
Finance or his authorized representative along with any amendments,
additions, or revisions whenever adopted
F It will not enter into any contracts that would encumber
the City funds for a period that would extend beyond the term of
this Agreement
G At the discretion of the City, the Agency may be required
to refund the balance of the special account to the City of Denton
at the end of the 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
PAGE 2
shall be promptly reported to the Executive Director of Finance or
his authorized representative for further direction
I It will appoint a representative who will be available to
meet with the Executive Director of Finance and other City offi-
cials when requested
J It will indemnify and hold harmless the City from any and
all claims and suits arising out of the activities of the Agency,
its employees, or contractors and save and hold the City harmless
from all liability, including costs, expenses and attorneys fees,
for or on account of, any claims, audit exceptions, suits, or dam-
ages 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, not later than October 1, 1994, 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
L It will maintain liability insurance in amounts not less
than the statutorily required worker's compensation insurance,
$500,000 in automobile liability insurance coverage, and $500,000
in general liability insurance coverage It will name the City of
Denton, Texas and the State of Texas as additional insureds on said
policies and shall provide City with certificates evidencing such
coverage Said policies shall not be 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, 1993
N Agency shall conduct 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 Farebox revenue receipt figures shall be included in each
billing statement
P Agency shall submit to the City copies of each accident
report, the Police accident report, SPAN 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
PAGE 3
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 contrac-
tors, sub-grantees, sub-recipients, or their employees to accom-
plish 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 indi-
vidual's name or other identifier assigned to the individual A
system of records subject to the Act may not be used in the per-
formance 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 Govern-
ment 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 penal-
ties, 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 Trans-
portation regulations, "Procedures for Transportation Workplace
Drug Testing Programs," 49 C F R Part 40
Agency shall obtain from its third party contractors, sub-
grantees, and sub-recipients certifications required by Department
PAGE 4
of Transportation regulations, "Government-wide Debarment and
Suspension (Nonprocurement)," 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 of 18 U S C § 1001, 31 U S C 231 and 3801 at sec ,
and/or 49 U S C app § 1607(h), as may be deemed by the Government
to be appropriate The terms of Department of Transportation regu-
lations, "Program Fraud Civil Remedies," 49 C F R Part 31, are
applicable to this Project
III TIME OF PERFORMANCE
The services funded by the City shall be undertaken by the
Agency within the following time frame
October 1, 1993 through September 30, 1994
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 City's 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 (1) 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 terms of this Agreement will the total com-
pensation 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
F The City shall not be obligated or liable under this con-
tract to any party other than the Agency for payment of any monies
or provision of any goods or services
PAGE 5
V. EVALUATION
The Agency agrees to participate in an implementation and main-
tenance system whereby its services can be continuously monitored
The Agency agrees to make available its financial records for re-
view by the City at the City's discretion In addition, the Agency
agrees to provide the City copies of the following data and re-
ports
A All external or internal audits Agency shall submit a
copy of the annual 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
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 descrip-
tion of the matters to be discussed Agency understands and agrees
that City representatives shall be afforded access to all Board of
Directors' meetings
Minutes of all meetings of the Agency's governing body shall be
submitted to the City within ten (10) working days of approval
VII SUSPENSION OR TERMINATION
The City may suspend or terminate this Agreement and payments
to the Agency, in whole or part, for cause cause shall include
but not be limited to the following
A Agency's improper, misuse, or inept use of funds,
B Agency's failure to comply with the terms and conditions of
this Agreement,
C Agency's submission of data or reports that are incorrect
or incomplete in any material respect,
D Appointment of a trustee, receiver or liquidator for all or
a substantial part of the Agency's property, or institution of
bankruptcy, reorganization, rearrangement of or liquidation pro-
ceedings by or against the Agency, or
PAGE 6
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 con-
stitute a waiver of any claim the city may otherwise have arising
out of this Agreement
VIII. EQUAL OPPORTUNITY
A Agency will submit for City approval a written plan for
compliance with the Equal Employment and Affirmative Action Federal
provisions, within one hundred twenty (120) days of the effective
date of this Agreement
B Agency shall comply with all applicable equal employment
opportunity and affirmative action laws or regulations
C Agency will furnish all information and reports requested
by the City, and will permit access to its books, records, and ac-
counts 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
canceled, 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 govern-
ing 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 responsi-
bilities in the review or approval of the undertaking or carrying
out of this Agreement shall (1) participate in any decision relat-
ing to the Agreement which affects his personal interest or the
interest in any corporation, partnership, or association in which
PAGE 7
he has direct or indirect interest, or (2) have any interest,
direct or indirect, in this Agreement or the proceeds thereof
$ NEPOTISM
Agency shall not employ in any paid capacity any person who is
a member of the immediate family of any person who is currently em-
ployed by Agency, or is a member of Agency's governing board The
term "member of immediate family" includes wife, husband, son,
daughter, mother, father, brother, sister, in-laws, aunt, uncle,
nephew, niece, step-parent, step-child, half-brother and half-
sister
SI SPECIAL CONDITIONS
A Agency agrees to undertake, carry out, and complete the
Project consistent with the terms and conditions determined by the
Secretary of Labor to be fair and equitable to protect the inter-
ests of employees affected by the Project and meet requirements of
Section 13(c) of Federal Transit Act, as amended, 49 U S C App
Section 1609(c), and Department of Labor (DOL) guidelines set forth
in 29 C F R Part 215 These terms and conditions are identified
in the letter of certification from DOL to FTA whose date is set
forth in the Notification of Grant Approval to the City The Agen-
cy agrees to carry out the Grant in compliance with the conditions
stated in that DOL letter That letter and any documents cited in
the letter are incorporated herein by reference and made part of
this Grant
B Agency agrees to comply with the requirements of Section 8
of the Federal Transit Act, as amended, 49 U S C App Section
1607, and any implementing regulations that may be issued thereun-
der
C Agency agrees that it will utilize its administrative
process to solicit and consider public comment prior to raising
fares or implementing a major reduction of service
D Agency agrees that the Federal Government and the City may,
at least annually and more frequently in its discretion, either
conduct or require the Agency to have independently conducted, re-
views And audits as the Government may deem appropriate pursuant to
the provisions of Section 9(g) of the Federal Transit Act, as
amended, 49 U S C App Section 1607a(g), and any regulations or
guidelines that may be issued by the Government
E Agency agrees and assures that the rates charged elderly
and handicapped persons during nonpeak hours for transportation
utilizing or involving the facilities and equipment financed
pursuant to 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
PAGE 8
presenting a Medicare card duly issued to that person pursuant to
Title II or Title XVIII of the Social Security Act
F Agency agrees to comply with applicable Buy America statu-
tory and regulatory provisions The Agency may, without prior
approval, procure an associated capital maintenance item eligible
under Section 9(j) of the Federal Transit Act, 49 U S C App Sec-
tion 1607a(j), by contract directly with the original manufacturer
or supplier of the item to be replaced, provided that the Agency
first certifies in writing to the Government that (1) such manu-
facturer or supplier is the only source of such item, and (2) the
price of such item is no higher than the price paid for such item
by like customers
G Agency shall implement a project management plan, as ap-
proved by the Federal Government, in accordance with the require-
ments of Section 23 of the Federal Transit Act, as amended, 49
U S C App Section 1619, and any implementing regulations that may
be thereunder
XII. ADDITIONAL COVENANTS OF AGENCY
A Definitions As used in this section
Agreement means any Grant Agreement or Cooperative Agree-
ment
2 Agnlication 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 here-
tofore filed with and accepted and approved by the Government
(UMTA) by or on behalf of the Agency
3 Ajpnr'oya Authorization. Concurrence. Waiver means a con-
scious written act by an authorized official of the UMTA and City
granting permission to the Agency to perform or omit an action
pursuant to this Agreement, which action may not be performed or
omitted without such permission An approval, authorization, con-
currence, or waiver permitting the performance or omission of a
specific action shall not constitute permission to perform or omit
other similar actions unless such permission is clearly stated
oral permission or interpretations have no legal force or effect
4 UMTA Directive includes the most recent circulars, notices,
and orders that present information about UMTA programs, applica-
tion processing procedures, and guidance for administering approved
Projects, there are also Department of Transportation directives
that may be applicable to the Project
5 Government means the United States of America, or its
cognizant agency, the Department of Transportation (DOT), or its
operating administration, the Urban Mass Transportation Administra-
tion (UMTA), used herein interchangeably
PAGE 9
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 roiect means the task or set of tasks provided for in the
Project Budget which the Agency undertakes to perform pursuant to
this Agreement
8 Project or Program Budget means the most recently dated
statement, approved by the Government, of the estimated total cost
of the Project or Program, the items to be deducted from such total
in order to calculate the estimated net Project cost, the maximum
amount of Federal assistance for which the Agency, through the
City, is currently eligible, the specific items (including contin-
gencies and 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 Transporta-
tion or his or her duly authorized designee
10 UNTA. means the Urban Mass Transportation Administration of
the U S Department of Transportation
11 City means City of Denton, Texas
B In the performance of its obligations pursuant to this
Agreement, the Agency agrees to comply with all applicable provi-
sions 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 execu-
tion may be modified from time to time, and that the most recent of
such provisions will govern administration of this Agreement at any
particular time, except if there is sufficient evidence in the
Agreement of a contrary intent Such contrary intent might be evi-
denced by express language in any amendments to the Agreement
Likewise, new Federal laws, regulations, policies and administra-
tive practices may be established after the date of execution and
thereafter be applied to this Agreement As may be necessary to
achieve compliance with these requirements, the Agency shall
include notice of such requirements in all third party contracts,
sub-grants, and other sub-assistance agreements financed with
Government (UMTA) assistance All limits or standards set forth in
this Agreement to be observed in the performance of the Project are
minimum requirements If there is a conflict between Federal and
State or local requirements, the Agency shall inform the City and
the Government (UMTA) in order that an appropriate resolution may
be arranged
C Agency shall submit to the City such data, reports, re-
cords, contracts, and other documents relating to the Project as
the City may, during the course of the Project and for three years
PAGE 10
thereafter, require The Agency shall retain intact, for three
years following Project close-out, all Project documents, financial
records, and supporting documents and make these records available
to the City as the City may require
D Agency shall immediately notify the City of any change in
law, conditions, or any other event that may significantly affect
its ability to perform the Project in accordance with the terms of
this Agreement In addition, the Agency shall immediately notify
the City of any decision pertaining to the Agency's conduct of
litigation that may affect the City's interests in the Project or
the city's administration or enforcement of applicable Federal laws
or regulations Before the Agency may join the City as a named
party to litigation, for any reason, the Agency agrees to first
inform the City, this proviso applies to any type of litigation
whatsoever, in any forum
E Absent the express, written consent of the Government or
the City and notwithstanding any concurrence by the Government in
or approval of the award of any contract or subcontract or the
solicitation thereof, neither the Government nor the City shall be
subject to any obligations or liabilities by contractors of the
city or their subcontractors or any other person not a party to
this Agreement in connection with the performance of this Project
F Agency shall prepare and maintain a Project Budget The
Agency shall carry out the Project and shall incur obligations
against and make disbursements of Project funds only in conformity
with the latest approved budget for the Project The Project Bud-
get may be revised, from time to time, to the extent permitted by
and in conformance with the requirements of the Government
G Agency shall establish and maintain either a separate set
of accounts or accounts, within the framework of an established
accounting system, for the Project in a manner consistent with 49
C F R § 18 20, or OMB Circular A-110, as amended, as may be
applicable
H Consistent with the provisions of 49 C F R § 18 21, or OMB
Circular A-110, as amended, as may be applicable, the Agency shall
record in the Project Account, and deposit in a bank or trust com-
pany all Project payments it receives from the City pursuant to
this Agreement and all other funds provided for, accruing to, or
otherwise received on account of the Project, (Project Funds) A
separate bank account may be required when drawdowns are made by
letter of 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,
PAGE 11
Be necessary in order to accomplish the Project,
3 Be reasonable in amount for the goods or services purchas-
ed,
4 Be actual net costs to the Agency (i e , the price paid
minus any refunds, rebates, or other items of value received by the
Agency that have the effect of reducing the cost actually incurred,
excluding Program Income),
5 Be incurred (and be for work performed) after the date of
this Agreement, unless specific authorization from the Government
(UMTA) or the City to the contrary is received,
6 Unless permitted otherwise by Federal statute or regula-
tion, conform with Federal guidelines or regulations and Federal
cost principles as set forth in the standards of OMB Circular A-
122, Revised, "Cost Principles for Nonprofit organizations," and
the standards of 48 C F R Part 31 are applicable,
7 Be satisfactorily documented, and
8 Be treated uniformly and consistently under accounting
principles and procedures approved and prescribed by the Government
or City for the Agency, and those approved or prescribed by the
Agency for its contractors
J All costs charged to the Project, including any approved
services contributed by the Agency or others, shall be supported by
properly executed payrolls, time records, invoices, contracts, or
vouchers evidencing in detail the nature and propriety of the char-
ges The Agency shall also maintain accurate records of all Pro-
ject Funds derived from the implementation of the Project
K Any check or order drawn by the Agency with respect to any
item that is or will be chargeable against the Project Account will
be drawn only in accordance with a properly signed voucher then on
file in the office of the Agency stating in proper detail the pur-
pose for which such check or order is drawn All checks, payrolls,
invoices, contracts, vouchers, orders, or other accounting docu-
ments pertaining in whole or in part to the Project shall be clear-
ly identified, readily accessible, and, to the extent feasible,
kept separate and apart from all other such documents
L The Agency shall permit the Secretary and the Comptroller
General of the United States, or any of their duly authorized re-
presentatives to inspect all work, materials, payrolls, and other
data and records with regard to the Project, and to audit the
books, records, and accounts of the Agency and its contractors with
regard to the Project In the case of contracts awarded under
other than competitive bidding procedures as defined by the Secre-
tary of Transportation, the Agency shall require those contractors
to permit the Secretary of Transportation and the Comptroller Gen-
eral of the United States, or any of their duly authorized repre-
sentatives to inspect all work, materials, payrolls, and other data
PAGE 12
and records with regard to the Project, and to audit the books, re-
cords, and accounts pertaining to such contracts with regard to the
Project If the City is found to be responsible for meeting the
audit requirements of 49 C F R § 18 26 and OMB Circular A-128 or
any revision or supplement thereto, the Agency shall comply with
these requests. The Agency is responsible for obtaining any audits
required by the Government (UMTA) Closeout of the Project will
not alter the Agency's audit responsibilities
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 re-
quirements and procedures for use of the letter of credit
3 The Agency shall impose on its sub-recipients all appli-
cable 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 Intergovern-
mental Cooperation Act, 31 U S C § 6503(a), or the Indian Self-
Determination Act, 23 U S C § 450
2 Upon notice by the Government (UMTA) to the City of speci-
fic amounts due the Government, the Agency shall promptly remit any
excess payment of amounts or disallowed costs to the Government
(UMTA), including any interest due thereon
0 The Agency recognizes that the Government (UMTA) reserves
the right to dsobligate 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 sus-
pend or terminate all or part of the financial assistance provided
herein if the Agency is, or has been, in violation of the terms of
this Agreement, or if the Government or the City determines that
the purposes of the statute under which the Project is authorized
would not be adequately served by continuation of Federal financial
assistance for the Project Any failure to make reasonable pro-
gress or other violation of the Agreement that significantly endan-
gers substantial performance of the Project shall be deemed to be
a breach of this Agreement If the Agency's failure either to make
adequate progress or to make reasonable use of the Project real
property, facilities, or equipment, or to honor the terms of this
Agreement is determined by the City to be willful or unreasonable,
the city reserves the right to require the Agency to refund to the
PAGE 13
City the entire amount of Project funds provided by the City or any
lesser amount as may be determined by the City
Q Within 30 days of the termination of this Agreement, the
Agency shall submit a final Financial Status Report (Standard Form
269), a certification or summary of Project expenses, and third
party audit reports, as applicable Agency agrees that either the
Government (UMTA) or an agency designated by the Government (UMTA)
will perform a final audit of the Project to determine the allow-
ability of costs incurred to determine settlement of the Federal
assistance for the Project in accordance with Part I of this
Agreement If City has made payments to the Agency in excess of
the total amount of the Federal assistance due, the Agency shall
promptly remit to the City that excess and interest as may be re-
quired by Subsections 105 b and 105 a 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-110, Attachment N, as appropriate, as now or hereafter
amended, and any guidelines or regulations that the Government may
issue Exceptions to the requirements of 49 C F R 18 31,
18 32, and 18 33, and to OMB Circular A-110, Attachment N must be
specifically approved by the City The City reserves the right to
require the Agency to transfer title to any equipment financed with
Federal assistance made available by this Agreement as set forth in
49 C F R § 18 32(g) or OMB Circular A-110, Attachment N, as may be
appropriate The City also reserves the right to direct the dispo-
sition of real property or equipment financed with Federal assis-
tance 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 UMTA may is-
sue If, during the period, any Project real estate, equipment, or
supplies are not used in mass transportation service, whether by
planned withdrawal, misuse or casualty loss, the Agency shall imme-
diately notify the City Unless otherwise approved, the Agency
shall remit to the City a proportional amount of the fair market
value, if any, of the real property, equipment, or supplies whose
aggregate value exceeds $5,000, which value shall be determined on
the basis of the ratio of the Federal assistance awarded by the
Government to the actual cost of the Project The following guide-
lines shall be followed in determining the fair market value Un-
less otherwise approved in writing by UMTA, the fair market value
PAGE 14
of equipment and supplies will be the value of that property at the
time immediately before the reason occurred that prompted the deci-
sion to withdraw that property from transit use For example, in
the event of loss of or damage to the property by casualty or fire,
the fair market value of the property will be calculated immediate-
ly before the loss or damage, irrespective of the extent of insur-
ance coverage In the case of equipment and supplies, fair market
value shall be based on straight line depreciation of the equipment
and supplies, based on the industry standard for useful life, irre-
spective of the reason for withdrawal of that property from transit
use In the case of real property, the fair market value shall be
determined by competent appraisal based on an appropriate date as
determined by the Government consistent with the standards of 49
C F R Part 24 The City, however, reserves the right to require
another method of valuation to be used if the Government (UMTA)
finds that special circumstances so require to assure the protec-
tion of the Federal investment In unusual circumstances, the
Agency may request that another reasonable method of determining
fair market value be used, including but not limited to accelerated
depreciation, comparable sales, or established market values In
determining whether to approve an alternate method, the City may
consider any action taken, omission made or unfortunate occurrence
suffered by the Agency with respect to the preservation or conser-
vation of the value of the real property, equipment, or supplies
that, for any reason, have been withdrawn from service
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 compli-
ance 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
S Agency may not execute any transfer of title, lease, lien,
pledge, mortgage, encumbrance, contract, grant anticipation note,
alienation, or other obligation that in any way affects the Federal
interest in any Project real property or equipment, nor may the
Agency obligate itself, in any other manner, to any third party
with respect to Project real property or equipment, unless such
transfer of title, lease, lien, pledge, mortgage, encumbrance, con-
tract, grant anticipation note, alienation, or other obligation is
expressly authorized in writing by the City and Government (UMTA),
PAGE 15
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 Ecual Employment ORRortunity - The following requirements
are applicable to the Project
(a) In connection with Project implementation, the
Agency may not discriminate against any employee or applicant for
employment because of race, color, age, creed, sex, or national
origin The Agency shall take affirmative action to ensure that
applicants are employed, and that employees are treated during
employment, without regard to their race, color, religion, sex,
age, or national origin Such action shall include, but not be
limited to, the following employment, upgrading, demotion or
transfer, recruitment or recruitment advertising, layoff or
termination, rates of pay or other forms of compensation, and
selection for training, including apprenticeship The Agency shall
insert the foregoing provision (modified only to show the particu-
lar contractual relationship) in all of its contracts in connection
with the development 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 simi-
lar 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 opportu-
nity 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 this Agreement
or other measures that may affect the ability of the Agency to
obtain future financial assistance under the Urban Mass Transporta-
tion Act of 1964, as amended, or title 23, United States Code
(Highways)
following provisions are applicable to the Project
The
(a) The Agency shall be responsible for meeting the re-
quiremgnts regarding participation by minority business enterprises
(MBE) in Department of Transportation programs set forth at 49 C F
R Part 23 Pursuant to the requirements of 49 C F R § 23 43, the
following clauses must be inserted in each third party contract
(i) POLICY IT IS THE POLICY OF THE DEPARTMENT OF
TRANSPORTATION THAT MINORITY BUSINESS ENTERPRISES, AS DEFINED
PAGE 16
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 CONSE-
QUENTLY, 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 PARTICI-
PATE IN THE PERFORMANCE OF CONTRACTS AND SUBCONTRACTS 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, contrac-
tor, 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 Transpor-
tation, 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 transporta-
tion-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 firms owned and controlled by MBEs These goals
shall be for a specified period of time and shall be based on
the factors listed in 49 C F R § 23 45 (g) (5) The Agency
shall review these goals at least annually, and whenever they
expire, analyzing projected versus actual MBE participation
during the period covered by the review and any changes in
factual circumstances affecting the selection of goals
Following each review, the Agency shall submit new overall
goals to the Department of Transportation for 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
PAGE 17
(iii) Except as provided in this section, the Agency is
required to include lessees in affirmative action programs
Lessees themselves are not subject to the requirements of this
Part, except for the requirement under 49 C F R § 23 7 that
lessees avoid discrimination against MBEs
3 Title VI Civil Rights Act of 1964 The Agency shall comply
and shall assure the compliance by contractors and subcontractors
under this Project with all requirements of Title VI of the Civil
Rights Act of 1964, 42 U S C § 2000d, Department of Transportation
regulations, "Nondiscrimination in Federally-Assisted Programs of
the Department of Transportation Effectuation of Title VI of the
Civil Rights Act," 49 C F R Part 21, and the Assurance by the
Agency pursuant thereto
4 Nondiscrimination on the Basis of Handicap The Agency
shall ensure that all fixed facility construction or alteration and
all new equipment included in the Project shall comply with Depart-
ment of Transportation regulations, "Nondiscrimination on the Basis
of Handicap in Programs and Activities, Receiving or Benefitting
from Federal Financial Assistance," 49 C F R Part 27, and UMTA
regulations, "Transportation for Elderly and Handicapped Persons,"
49 C F R Part 609, and any amendments thereto that may be issued
5 Competition in Procurement The Agency agrees to comply
with the Procurement Standards requirements set forth at 49 C F R
§ 18 36 or OMB Circular A-110, Attachment O, as may be applicable,
and with any supplementary directives or regulations including UMTA
Circular 4220 1B, and any revisions thereof, as may be applicable
UMTA reserves the right to review the Agency's technical specifica-
tions and requirements, where such review is necessary for proper
Project administration The Agency further agrees that, notwith-
standing the requirements of Section 121 of Part II of 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 or Tnira YHTLV I;QnLra' uliJUUa.ca VL na.caa.aasa~
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 con-
tract The Agency shall notify the City and Government of any
current or prospective litigation or major disputed claim pertain-
ing to any third party contract The City and Government reserves
the right to concur in any compromise or settlement of any claim by
the Agency involving any third party contract If the third party
contract contains a liquidated damages provision, any liquidated
PAGE 18
damages recovered shall be credited to the Project account involved
unless the Government permits otherwise In the event the Agency
wishes to join the Government as a named party to litigation, for
any reason, the Agency agrees to inform the City Government before
doing so; this proviso applies to any type of litigation whatsoev-
er, in any forum
S Ethics The Agency shall maintain a written code or stan-
dards of conduct that shall govern the performance of its officers,
employees, board members, or agents engaged in the award and admin-
istration of contracts supported by Federal funds Such code or
standards shall provide that no employee, officer, board member, or
agent of the Agency may participate in the selection, award, or
administration of a contract supported by Federal funds if a con-
flict of interest, real or apparent, would be involved Such a
conflict would arise when any of the parties set forth below has a
financial or other interest in the firm selected for award
(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 stan-
dards shall provide for penalties, sanctions, or other disciplinary
actions for violations by the Agency's officers, employees, board
members, or agents, or by contractors or sub-recipients or their
agents
9 Interest of Members of or Delegates to Congress No member
of or delegate to the Congress of the United States shall be
admitted to any share or part of this Project or to any benefit
therefrom
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
PAGE 19
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
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 EMPLOYMENT WITHOUT REGARD TO
THEIR RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN SUCH
ACTION SHALL INCLUDE, BUT NOT BE LIMITED TO THE FOLLOWING
EMPLOYMENT, UPGRADING, DEMOTION, OR TRANSFER, RECRUITMENT OR
RECRUITMENT ADVERTISING, LAYOFF OR TERMINATION, RATES OF PAY OR
OTHER FORMS OF COMPENSATION, AND SELECTION FOR TRAINING,
INCLUDING APPRENTICESHIP THE CONTRACTOR AGREES TO POST IN
CONSPICUOUS PLACES, AVAILABLE TO EMPLOYEES AND APPLICANTS FOR
EMPLOYMENT, NOTICES TO BE PROVIDED SETTING FORTH THE PROVISIONS
OF THIS NONDISCRIMINATION CLAUSE
(ii) THE CONTRACTOR WILL, IN ALL SOLICITATIONS OR
ADVERTISEMENTS 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 WORKERS'
REPRESENTATIVE OF THE CONTRACTOR'S COMMITMENTS UNDER SECTION
202 OF EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, AND SHALL
POST COPIES OF THE NOTICE IN CONSPICUOUS PLACES AVAILABLE TO
EMPLOYEES AND APPLICANTS FOR EMPLOYMENT
(iv) THE CONTRACTOR WILL COMPLY WITH ALL PROVISIONS OF
EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, AND OF THE RULES,
REGULATIONS, AND RELEVANT ORDERS OF THE SECRETARY OF LABOR
(v) THE CONTRACTOR WILL FURNISH ALL INFORMATION AND
REPORTS REQUIRED BY EXECUTIVE ORDER 11246 OF SEPTEMBER 24,
1965, AND BY THE RULES, REGULATIONS, AND ORDERS OF THE SECRE-
TARY 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 ASCERTAIN COMPLIANCE WITH
SUCH RULES, REGULATIONS, AND ORDERS
(vi) IN THE EVENT OF THE CONTRACTOR'S NONCOMPLIANCE WITH
THE NONDISCRIMINATION CLAUSES OF THIS AGREEMENT OR WITH ANY OF
PAGE 20
SUCH RULES, REGULATIONS, OR ORDERS, THIS AGREEMENT MAY BE
CANCELED, TERMINATED, OR SUSPENDED IN WHOLE OR IN PART AND THE
CONTRACTOR MAY BE DECLARED INELIGIBLE FOR FURTHER FEDERAL OR
FEDERALLY ASSISTED CONTRACTS IN ACCORDANCE WITH PROCEDURES
AUTHORIZED IN EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, AND
SUCH OTHER SANCTIONS MAY BE IMPOSED AND REMEDIES INVOKED AS
PROVIDED IN EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, OR BY
RULE, REGULATION, OR ORDER OF THE SECRETARY OF LABOR, OR AS
OTHERWISE PROVIDED BY LAW
(vii) THE CONTRACTOR WILL INCLUDE THE PROVISIONS OF
PARAGRAPHS (a) THROUGH (g) OF THIS SUBSECTION IN EVERY SUBCON-
TRACT OR PURCHASE ORDER UNLESS EXEMPTED BY RULES, REGULATIONS,
OR ORDERS OF THE SECRETARY OF LABOR ISSUED PURSUANT TO SECTION
204 OF EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, SO THAT
SUCH PROVISIONS SHALL BE BINDING UPON EACH SUBCONTRACTOR OR
VENDOR THE CONTRACTOR WILL TAKE SUCH ACTION WITH RESPECT TO
ANY SUBCONTRACT OR PURCHASE ORDER AS THE SECRETARY OF LABOR OR
UMTA MAY DIRECT AS A MEANS OF ENFORCING SUCH PROVISIONS,
INCLUDING SANCTIONS FOR NONCOMPLIANCE, PROVIDED, HOWEVER, THAT
IF A CONTRACTOR BECOMES INVOLVED IN, OR IS THREATENED WITH,
LITIGATION WITH A SUBCONTRACTOR OR VENDOR AS A RESULT OF SUCH
DIRECTION, THE CONTRACTOR MAY REQUEST THE UNITED STATES TO
ENTER INTO SUCH LITIGATION TO PROTECT THE INTERESTS OF THE
UNITED STATES
(b) The Agency shall assure that each nonexempt prime
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 oppor-
tunity clause and the rules, regulations, and relevant orders of
the Secretary of Labor, that it will provide UNTA 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 eligibili-
ty for Government 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
PAGE 21
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 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 nonconstruction
Federal contracts and subcontracts covered under Executive Order
11246
STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION
CONTRACT SPECIFICATIONS (EXECUTIVE ORDER 11246)
(1) AS USED IN THESE SPECIFICATIONS
(a) "COVERED AREA" MEANS THE GEOGRAPHICAL AREA DESCRIBED
IN THE SOLICITATION FROM WHICH THIS CONTRACT RESULTED,
(b) "DIRECTOR" MEANS DIRECTOR, OFFICE OF FEDERAL
CONTRACT COMPLIANCE PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, OR
ANY PERSON TO WHOM THE DIRECTOR DELEGATES AUTHORITY,
(c) "EMPLOYER IDENTIFICATION NUMBER" MEANS THE FEDERAL
SOCIAL 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
PAGE 22
(iV) AMERICAN INDIAN OR ALASKAN NATIVE (ALL PERSONS
HAVING ORIGINS IN ANY OF THE ORIGINAL PEOPLES OF NORTH AMERICA
AND MAINTAINING IDENTIFIABLE TRIBAL AFFILIATIONS THROUGH
MEMBERSHIP AND PARTICIPATION OR COMMUNITY IDENTIFICATION)
(2) WHENEVER THE CONTRACTOR, OR ANY SUBCONTRACTOR AT ANY TIER,
SUBCONTRACTS A PORTION OF THE WORK INVOLVING ANY CONSTRUCTION
TRADE, IT SHALL PHYSICALLY INCLUDE IN EACH SUBCONTRACT IN EXCESS OF
$10,000 THE 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 CON-
TRACT 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 INDIVIDUALLY OR THROUGH AN
ASSOCIATION, ITS AFFIRMATIVE ACTION OBLIGATIONS ON ALL WORK IN THE
PLAN AREA (INCLUDING GOALS AND TIMETABLES) SHALL BE IN ACCORDANCE
WITH THAT PLAN FOR THOSE TRADES WHICH HAVE UNIONS PARTICIPATING IN
THE PLAN CONTRACTORS MUST BE ABLE TO DEMONSTRATE THEIR PARTICIPA-
TION IN AND COMPLIANCE WITH THE PROVISIONS OF ANY SUCH HOMETOWN
PLAN EACH CONTRACTOR OR SUBCONTRACTOR PARTICIPATING IN AN
APPROVED PLAN IS INDIVIDUALLY REQUIRED TO COMPLY WITH ITS OBLIGA-
TIONS UNDER THE EEO CLAUSE, AND TO MAKE A GOOD FAITH EFFORT TO
ACHIEVE EACH GOAL UNDER THE PLAN IN EACH TRADE IN WHICH IT HAS
EMPLOYEES THE OVERALL GOOD FAITH PERFORMANCE BY OTHER CONTRACTORS
OR SUBCONTRACTORS 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 AFFIRMATIVE
ACTION STANDARDS PROVIDED IN PARAGRAPHS (7) (a) THROUGH (p) OF
THESE SPECIFICATIONS THE GOALS SET FORTH IN THE SOLICITATION FROM
WHICH THIS CONTRACT RESULTED ARE EXPRESSED AS PERCENTAGES OF THE
TOTAL }TOURS OF EMPLOYMENT AND TRAINING OF MINORITY AND FEMALE
UTILIZATION THE CONTRACTOR SHOULD REASONABLY BE ABLE TO ACHIEVE IN
EACH CONSTRUCTION TRADE IN WHICH IT HAS EMPLOYEES IN THE COVERED
AREA COVERED CONSTRUCTION CONTRACTORS PERFORMING CONSTRUCTION
WORK IN GEOGRAPHICAL AREAS WHERE THEY DO NOT HAVE A FEDERAL OR
FEDERALLY ASSISTED CONSTRUCTION CONTRACT SHALL APPLY THE MINORITY
AND FEMALE GOALS ESTABLISHED FOR THE GEOGRAPHICAL AREA WHERE THE
WORK IS BEING PERFORMED GOALS ARE PUBLISHED PERIODICALLY IN THE
L$EQ,j.STER IN NOTICE FORM, AND SUCH NOTICES MAY BE OBTAINED
FROM Y OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS OFFICE OR
FROM FEDERAL PROCUREMENT CONTRACTING OFFICERS THE CONTRACTOR IS
EXPECTED TO MAKE SUBSTANTIALLY UNIFORM PROGRESS TOWARD ITS GOAL IN
EACH CRAFT DURING THE PERIOD SPECIFIED
(5) NEITHER THE PROVISIONS OF ANY COLLECTIVE BARGAINING AGREE-
MENT, NOR THE FAILURE BY A UNION WITH WHOM THE CONTRACTOR HAS A
COLLECTIVE BARGAINING AGREEMENT, TO REFER EITHER MINORITIES OR
WOMEN SHALL EXCUSE THE CONTRACTOR'S OBLIGATIONS UNDER THESE SPECI-
FICATIONS, EXECUTIVE ORDER 11246, OR THE REGULATIONS PROMULGATED
PURSUANT THERETO
PAGE 23
(6) IN ORDER FOR THE NONWORKING TRAINING HOURS OF APPRENTICES
AND TRAINEES TO BE COUNTED IN MEETING THE GOALS, SUCH APPRENTICES
AND TRAINEES MUST BE EMPLOYED BY THE CONTRACTOR DURING THE TRAINING
PERIOD, AND THE CONTRACTOR MUST HAVE MADE A COMMITMENT TO EMPLOY
THE APPRENTICES AND TRAINEES AT THE COMPLETION OF THEIR TRAINING,
SUBJECT TO THE AVAILABILITY OF EMPLOYMENT OPPORTUNITIES TRAINEES
MUST BE TRAINED PURSUANT TO TRAINING PROGRAMS APPROVED BY THE U S
DEPARTMENT OF LABOR
(7) THE CONTRACTOR SHALL TAKE SPECIFIC AFFIRMATIVE ACTIONS TO
ENSURE EQUAL EMPLOYMENT OPPORTUNITY THE EVALUATION OF THE CON-
TRACTOR'S COMPLIANCE WITH THESE SPECIFICATIONS SHALL BE BASED UPON
ITS EFFORT TO ACHIEVE MAXIMUM RESULTS FROM ITS ACTIONS THE CON-
TRACTOR SHALL DOCUMENT THESE EFFORTS FULLY, AND SHALL IMPLEMENT
AFFIRMATIVE ACTION STEPS AT LEAST AS EXTENSIVE AS THE FOLLOWING
(a) ENSURE AND MAINTAIN A WORKING ENVIRONMENT FREE OF
HARASSMENT, INTIMIDATION, AND COERCION AT ALL SITES, AND IN ALL
FACILITIES AT WHICH THE CONTRACTOR'S EMPLOYEES ARE ASSIGNED TO
WORK THE CONTRACTOR, WHERE POSSIBLE, WILL ASSIGN TWO OR MORE
WOMEN TO EACH CONSTRUCTION PROJECT THE CONTRACTOR SHALL SPECIFI-
CALLY ENSURE 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
ATTENTION TO MINORITY OR FEMALE INDIVIDUALS WORKING AT SUCH SITES
OR IN SUCH FACILITIES
(b) ESTABLISH AND MAINTAIN A CURRENT LIST OF MINORITY
AND FEMALE RECRUITMENT SOURCES, PROVIDE WRITTEN NOTICE TO MINORITY
AND FEMALE RECRUITMENT SOURCES AND TO COMMUNITY ORGANIZATIONS WHEN
THE CONTRACTOR OR ITS UNIONS HAVE EMPLOYMENT OPPORTUNITIES
AVAILABLE, AND MAINTAIN A RECORD OF THE ORGANIZATIONS' RESPONSES
(c) MAINTAIN A CURRENT FILE OF THE NAMES, ADDRESSES AND
TELEPHONE NUMBERS OF EACH MINORITY AND FEMALE OFF-THE-STREET
APPLICANT AND MINORITY OR FEMALE REFERRAL FROM A UNION, A RECRUIT-
MENT SOURCE OR COMMUNITY ORGANIZATION AND OF WHAT ACTION WAS TAKEN
WITH RESPECT TO EACH SUCH INDIVIDUAL IF SUCH INDIVIDUAL WAS SENT
TO THE UNION HIRING HALL FOR REFERRAL AND WAS NOT REFERRED BACK TO
THE CONTRACTOR BY THE UNION OR, IF REFERRED, NOT EMPLOYED BY THE
CONTRACTOR, 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 CONTRACTOR HAS A
COLLECTIVE BARGAINING AGREEMENT HAS NOT REFERRED TO THE CONTRACTOR
A MINORITY PERSON OR WOMAN SENT BY THE CONTRACTOR, OR WHEN THE
CONTRACTOR HAS OTHER INFORMATION THAT THE UNION REFERRAL PROCESS
HAS IMPEDED THE CONTRACTOR'S EFFORTS TO MEET ITS OBLIGATIONS
(e) DEVELOP ON-THE-JOB TRAINING OPPORTUNITIES AND/OR
PARTICIPATE IN TRAINING PROGRAMS FOR THE AREA WHICH EXPRESSLY
INCLUDE MINORITIES AND WOMEN, INCLUDING UPGRADING PROGRAMS AND
APPRENTICESHIP AND TRAINEE PROGRAMS RELEVANT TO THE CONTRACTOR'S
PAGE 24
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 PROGRAMS AND REQUESTING
THEIR COOPERATION IN ASSISTING THE CONTRACTOR IN MEETING ITS EEO
OBLIGATIONS, BY INCLUDING IT IN ANY POLICY MANUAL AND COLLECTIVE
BARGAINING AGREEMENT, BY PUBLICIZING IT IN THE COMPANY NEWSPAPER,
ANNUAL REPORT, ETC , BY SPECIFIC REVIEW OF THE POLICY WITH ALL
MANAGEMENT PERSONNEL AND WITH ALL MINORITY AND FEMALE EMPLOYEES AT
LEAST ONCE A YEAR, AND BY POSTING THE COMPANY EEO POLICY ON
BULLETIN BOARDS ACCESSIBLE TO ALL EMPLOYEES AT EACH LOCATION WHERE
CONSTRUCTION WORK IS PERFORMED
(g) REVIEW, AT LEAST ANNUALLY, THE COMPANY'S EEO POLICY
AND AFFIRMATIVE ACTION OBLIGATIONS UNDER THESE SPECIFICATIONS WITH
ALL EMPLOYEES HAVING RESPONSIBILITY FOR HIRING, ASSIGNMENT, LAYOFF,
TERMINATION OR OTHER EMPLOYMENT DECISIONS INCLUDING SPECIFIC REVIEW
OF THESE ITEMS WITH ON-SITE SUPERVISORY PERSONNEL SUCH AS SUPERIN-
TENDENTS, GENERAL FOREMAN, ETC , PRIOR TO THE INITIATION OF CON-
STRUCTION WORK AT ANY JOB SITE A WRITTEN RECORD SHALL BE MADE AND
MAINTAINED IDENTIFYING THE TIME AND PLACE OF THESE MEETINGS, PER-
SONS ATTENDING, SUBJECT MATTER DISCUSSED, AND DISPOSITION OF THE
SUBJECT MATTER
(h) DISSEMINATE THE CONTRACTOR'S EEO POLICY EXTERNALLY
BY INCLUDING IT IN ANY ADVERTISING IN THE NEWS MEDIA, SPECIFICALLY
INCLUDING MINORITY AND FEMALE NEWS MEDIA, AND PROVIDING WRITTEN
NOTIFICATION TO AND DISCUSSING THE CONTRACTOR'S EEO POLICY WITH
OTHER CONTRACTORS AND SUBCONTRACTORS WITH WHOM THE CONTRACTOR DOES
OR ANTICIPATES DOING BUSINESS
(i) DIRECT RECRUITMENT EFFORTS, BOTH ORAL AND WRITTEN,
TO MINORITY, FEMALE AND COMMUNITY ORGANIZATIONS, TO SCHOOLS WITH
MINORITY AND FEMALE STUDENTS AND TO MINORITY AND FEMALE RECRUITMENT
AND TRAINING ORGANIZATIONS SERVING THE CONTRACTOR'S RECRUITMENT
AREA AND EMPLOYMENT NEEDS NOT LATER THAN ONE MONTH PRIOR TO THE
DATE FOR THE ACCEPTANCE OF APPLICATIONS FOR APPRENTICESHIP OR OTHER
TRAINING BY ANY RECRUITMENT SOURCE, THE CONTRACTOR SHALL SEND
WRITTEN NOTICE TO ORGANIZATIONS SUCH AS THE ABOVE, DESCRIBING THE
OPENINGS, SCREENING PROCEDURES, AND TESTS TO BE USED IN THE
SELECTION PROCESS
(j) ENCOURAGE PRESENT MINORITY AND FEMALE EMPLOYEES TO
RECRUIT OTHER MINORITY PERSONS AND WOMEN AND, WHERE REASONABLE,
PROVIDE AFTER SCHOOL, SUMMER AND VACATION EMPLOYMENT TO MINORITY
AND FEMALE YOUTH, BOTH ON THE SITE AND IN OTHER AREAS OF THE
CONTRACTOR'S WORK FORCE
(k) VALIDATE ALL TESTS AND OTHER SELECTION REQUIREMENTS
WHERE THERE IS AN OBLIGATION TO DO SO UNDER 41 C F R PART 60-3
(1) CONDUCT, AT LEAST ANNUALLY, AN INVENTORY AND
EVALUATION AT LEAST OF ALL MINORITY AND FEMALE PERSONNEL FOR
PAGE 25
PROMOTIONAL OPPORTUNITIES AND ENCOURAGE THESE EMPLOYEES TO SEEK OR
TO PREPARE FOR, THROUGH APPROPRIATE TRAINING, ETC , SUCH OPPORTUNI-
TIES
(m) ENSURE THAT SENIORITY PRACTICES, JOB CLASSIFICA-
TIONS, WORK ASSIGNMENTS AND OTHER PERSONNEL PRACTICES DO NOT HAVE
A DISCRIMINATORY EFFECT BY CONTINUALLY MONITORING ALL PERSONNEL AND
EMPLOYMENT RELATED ACTIVITIES TO ENSURE THAT THE EEO POLICY AND THE
CONTRACTOR'S OBLIGATIONS UNDER THESE SPECIFICATIONS ARE BEING
CARRIED OUT
(n) ENSURE THAT ALL FACILITIES AND COMPANY ACTIVITIES
ARE NONSEGREGATED EXCEPT THAT SEPARATE OR SINGLE-USER TOILET AND
NECESSARY CHANGING FACILITIES SHALL BE PROVIDED TO ASSURE PRIVACY
BETWEEN SEXES
(o) DOCUMENT AND MAINTAIN A RECORD OF ALL SOLICITATIONS
OF OFFERS FOR SUBCONTRACTS FROM MINORITY AND FEMALE CONSTRUCTION
CONTRACTORS AND SUPPLIERS, INCLUDING CIRCULATION OF SOLICITATIONS
TO MINORITY AND FEMALE CONTRACTOR ASSOCIATIONS AND OTHER BUSINESS
ASSOCIATIONS
(p) CONDUCT A REVIEW, AT LEAST ANNUALLY, OF ALL SUPER-
VISORS' ADHERENCE TO AND PERFORMANCE UNDER THE CONTRACTOR'S EEO
POLICIES AND AFFIRMATIVE ACTION OBLIGATIONS
(8) CONTRACTORS ARE ENCOURAGED TO PARTICIPATE IN VOLUNTARY
ASSOCIATIONS THAT ASSIST IN FULFILLING ONE OR MORE OF THEIR
AFFIRMATIVE ACTION OBLIGATIONS SET FORTH IN PARAGRAPHS (7) (a)
THROUGH (p) THE EFFORTS OF A CONTRACTOR ASSOCIATION, JOINT
CONTRACTOR-UNION, CONTRACTOR-COMMUNITY, OR OTHER SIMILAR GROUP OF
WHICH THE CONTRACTOR IS A MEMBER AND PARTICIPANT, MAY BE ASSERTED
AS FULFILLING ANY ONE OR MORE OF ITS OBLIGATIONS UNDER PARAGRAPHS
(7) (a) THROUGH (p) OF THESE SPECIFICATIONS, PROVIDED THAT THE
CONTRACTOR ACTIVELY PARTICIPATES IN THE GROUP, MAKES EVERY EFFORT
TO ASSURE THAT THE GROUP HAS A POSITIVE IMPACT ON THE EMPLOYMENT OF
MINORITIES AND WOMEN IN THE INDUSTRY, ENSURES THAT THE CONCRETE
BENEFITS OF THE PROGRAM ARE REFLECTED IN THE CONTRACTOR'S MINORITY
AND FEMALE WORK FORCE PARTICIPATION, MAKES A GOOD FAITH EFFORT TO
MEET ITS INDIVIDUAL GOALS AND TIMETABLES, AND CAN PROVIDE ACCESS TO
DOCUMENTATION 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 OBLIGA-
TION 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 OPPORTUNITY AND TO TAKE
AFFIRMATIVE ACTION FOR ALL MINORITY GROUPS, BOTH MALE AND FEMALE,
AND ALL WOMEN, BOTH MINORITY AND NON-MINORITY CONSEQUENTLY, THE
CONTRACTOR MAY BE IN VIOLATION OF THE EXECUTIVE ORDER IF A PARTI-
CULAR GROUP IS EMPLOYED IN A SUBSTANTIALLY DISPARATE MANNER (EVEN
THOUGH THE CONTRACTOR HAS ACHIEVED ITS GOAL FOR WOMEN GENERALLY,
THE CONTRACTOR MAY BE IN VIOLATION OF THE EXECUTIVE ORDER IF A
SPECIFIC MINORITY GROUP OF WOMEN IS UNDERUTILIZED)
PAGE 26
(10) THE CONTRACTOR SHALL NOT USE THE GOALS AND TIMETABLES OR
AFFIRMATIVE ACTION STANDARDS TO DISCRIMINATE AGAINST ANY PERSON
BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN
(11) THE CONTRACTOR SHALL NOT ENTER INTO ANY SUBCONTRACT WITH
ANY PERSON OR FIRM DEBARRED FROM GOVERNMENT CONTRACTS PURSUANT TO
EXECUTIVE ORDER 11246
(12) THE CONTRACTOR SHALL CARRY OUT SUCH SANCTIONS AND PENAL-
TIES FOR VIOLATION OF THESE SPECIFICATIONS AND OF THE EQUAL OPPOR-
TUNITY CLAUSE, INCLUDING SUSPENSION, TERMINATION AND CANCELLATION
OF EXISTING SUBCONTRACTS AS MAY BE IMPOSED OR ORDERED PURSUANT TO
EXECUTIVE ORDER 11246, AS AMENDED, AND ITS IMPLEMENTING REGULA-
TIONS, BY THE OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS ANY
CONTRACTOR WHO FAILS TO CARRY OUT SUCH SANCTIONS AND PENALTIES
SHALL BE IN VIOLATION OF THESE SPECIFICATIONS AND EXECUTIVE ORDER
11246, AS AMENDED
(13) THE 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 ACHIEVE MAXIMUM RESULTS FROM
ITS EFFORTS TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY IF THE CONTRAC-
TOR FAILS TO COMPLY WITH THE REQUIREMENTS OF THE EXECUTIVE ORDER,
THE IMPLEMENTING REGULATIONS, OR THESE SPECIFICATIONS, THE DIRECTOR
SHALL PROCEED IN ACCORDANCE WITH 41 C F R § 60-4 8
(14) THE CONTRACTOR SHALL DESIGNATE A RESPONSIBLE OFFICIAL TO
MONITOR ALL EMPLOYMENT RELATED ACTIVITY TO ENSURE THAT THE COMPANY
EEO POLICY IS BEING CARRIED OUT, TO SUBMIT REPORTS RELATING TO THE
PROVISIONS HEREOF AS MAY BE REQUIRED BY THE GOVERNMENT AND TO KEEP
RECORDS RECORDS SHALL AT LEAST INCLUDE FOR EACH EMPLOYEE THE
NAME, ADDRESS, 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
(18) NOTHING HEREIN PROVIDED SHALL BE CONSTRUED AS A LIMITA-
TION UPON THE APPLICATION OF OTHER LAWS THAT ESTABLISH DIFFERENT
STANDARDS OF COMPLIANCE OR UPON THE APPLICATION OF REQUIREMENTS FOR
THE HIRING OF LOCAL OR OTHER AREA RESIDENTS (E G , THOSE UNDER THE
PUBLIC WORKS EMPLOYMENT ACT OF 1977 AND THE COMMUNITY DEVELOPMENT
BLOCK GRANT PROGRAM)
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
PAGE 27
Director, Office of Federal Contract Compliance Programs of the
Department of Labor at 41 C F R § 60-4 2
NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE
EQUAL EMPLOYMENT OPPORTUNITY (EXECUTIVE ORDER 11246)
(1) THE OFFEROR'S OR BIDDER'S ATTENTION IS CALLED TO THE
"EQUAL OPPORTUNITY CLAUSE" AND THE "STANDARD FEDERAL EQUAL
EMPLOYMENT SPECIFICATIONS" SET FORTH HEREIN
(2) (a) THE GOALS AND THE TIMETABLES FOR MINORITY AND FEMALE
PARTICIPATION, EXPRESSED IN PERCENTAGE TERMS FOR THE CONTRACTOR'S
AGGREGATE WORK FORCE IN EACH TRADE ON ALL CONSTRUCTION WORK IN THE
COVERED AREA, ARE AS FOLLOWS
TIMETABLES GOALS FOR MINORITY GOALS FOR FEMALE
PARTICIPATION IN PARTICIPATION IN
EACH TRADE EACH TRADE
INSERT GOALS FOR INSERT GOALS FOR
EACH YEAR EACH YEAR
(b) THESE GOALS ARE APPLICABLE TO ALL THE CONTRACTOR'S
CONSTRUCTION WORK (WHETHER OR NOT IT IS FEDERAL OR FEDERALLY
ASSISTED) PERFORMED IN THE COVERED AREA IF THE CONTRACTOR PER-
FORMS CONSTRUCTION WORK IN A GEOGRAPHICAL AREA LOCATED OUTSIDE OF
THE COVERED 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 EXECUTIVE
ORDER AND THE REGULATIONS AT 41 C F R PART 60-4 SHALL BE BASED ON
ITS IMPLEMENTATION OF THE EQUAL OPPORTUNITY CLAUSE, SPECIFIC
AFFIRMATIVE ACTION OBLIGATIONS REQUIRED BY THE SPECIFICATIONS SET
FORTH AT 41 C F R § 60-4 3(a), AND ITS EFFORTS TO MEET THE GOALS
THE HOURS OF MINORITY AND FEMALE EMPLOYMENT AND TRAINING MUST BE
SUBSTANTIALLY UNIFORM THROUGHOUT THE LENGTH OF THE CONTRACT, AND IN
EACH TRADE, AND THE CONTRACTOR SHALL MAKE A GOOD FAITH EFFORT TO
EMPLOY MINORITIES AND WOMEN EVENLY ON EACH OF ITS PROJECTS THE
TRANSFER OF MINORITY OR FEMALE EMPLOYEES OR TRAINEES FROM CONTRAC-
TOR TO CONTRACTOR OR FROM PROJECT TO PROJECT FOR THE SOLE PURPOSE
OF MEETING 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 COMPLIANCE PROGRAMS
WITHIN 10 WORKING DAYS OF AWARD OF ANY CONSTRUCTION SUBCONTRACT IN
PAGE 28
EXCESS OF $10,000 AT ANY TIER FOR CONSTRUCTION WORK UNDER THE
CONTRACT RESULTING FROM THIS SOLICITATION THE NOTIFICATION SHALL
LIST THE NAME, ADDRESS AND TELEPHONE NUMBER OF THE SUBCONTRACTOR,
EMPLOYER IDENTIFICATION NUMBER OF THE SUBCONTRACTOR, ESTIMATED
DOLLAR AMOUNT OF THE SUBCONTRACT, ESTIMATED STARTING AND COMPLETION
DATES OF THE SUBCONTRACT, AND THE GEOGRAPHICAL AREA IN WHICH THE
SUBCONTRACT IS TO BE PERFORMED
(4) AS USED IN THIS NOTICE, AND IN THE CONTRACT RESULTING FROM
THIS SOLICITATION, THE "COVERED AREA" IS (INSERT DESCRIPTION OF THE
GEOGRAPHICAL AREAS WHERE THE CONTRACT IS TO BE PERFORMED, GIVING
THE STATE, COUNTY AND CITY, IF ANY)
4 Accommodations for the Physically Handicapped UMTA
assisted construction, designs, and alterations shall be undertaken
in accordance with and meet the requirements of the provisions of
General Services Administration (GSA) regulations set forth at 41
C F R Subpart 101-19 6, unless an exception is granted in writing
by UMTA or a waiver is granted in writing by GSA
5 Contract Security The Agency shall follow the require-
ments of 49 C F R § 18 36(h) or OMB Circular A-110, Attachment B,
as applicable, and Federal (UNTA) guidelines with regard to bid
guarantees and bonding requirements
6 Signs The Agency shall cause to be erected at the site of
construction, and maintained during construction, signs satisfacto-
ry to the Department of Transportation identifying the Project and
indicating that the Government is participating in the development
of the Project
7 Safety Standards Pursuant to section 107 of the Contract
Work Hours and Safety Standards Act and Department of Labor
regulations 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 deter-
mined under construction and health standards promulgated by the
Secretary of Labor
8 Liguidated Damages The Agency shall include in all con-
tracts for construction a clause providing for liquidated damages,
where appropriate Liquidated damages clauses are appropriate if
the parties may reasonably expect to suffer damages (increased
costs on the Project involved) from the late completion of the con-
struction and the extent or amount of such damages would be diffi-
cult or impossible to determine The assessment for damages shall
be at a specific rate per day for each day of overrun in contract
time, and the rate must be specified in the third party contract
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
PAGE 29
(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 DEVEL-
OPMENT OF THE PROJECT), WILL BE PAID UNCONDITIONALLY AND NOT LESS
OFTEN THAN ONCE A WEEK, AND WITHOUT SUBSEQUENT DEDUCTION OR REBATE
ON ANY ACCOUNT (EXCEPT SUCH PAYROLL DEDUCTIONS AS ARE PERMITTED BY
REGULATIONS 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 SECRETARY OF LABOR WHICH IS ATTACHED HERETO
AND MADE A PART HEREOF, REGARDLESS OF ANY CONTRACTUAL RELATIONSHIP
WHICH MAY BE ALLEGED TO EXIST BETWEEN THE CONTRACTOR AND SUCH
LABORERS AND MECHANICS CONTRIBUTIONS MADE OR COSTS REASONABLY
ANTICIPATED FOR BONA FIDE FRINGE BENEFITS UNDER SECTION 1(b) (2) OF
THE DAVIS-BACON ACT ON BEHALF OF LABORERS OR MECHANICS ARE CONSID-
ERED WAGES PAID TO SUCH LABORERS OR MECHANICS, SUBJECT TO THE PRO-
VISIONS OF 29 C F R § 5 5(a)(1)(iv), ALSO, REGULAR CONTRIBUTIONS
MADE OR COSTS INCURRED FOR MORE THAN A WEEKLY PERIOD (BUT NOT LESS
OFTEN THAN QUARTERLY) UNDER PLANS, FUNDS, OR PROGRAMS THAT COVER
THE PARTICULAR WEEKLY PERIOD, ARE DEEMED TO BE CONSTRUCTIVELY MADE
OR INCURRED DURING SUCH WEEKLY PERIOD SUCH LABORERS AND MECHANICS
SHALL BE PAID THE APPROPRIATE WAGE RATE AND FRINGE BENEFITS ON THE
WAGE DETERMINATION FOR THE CLASSIFICATION OF WORK ACTUALLY PERFORM-
ED, WITHOUT REGARD TO SKILL, EXCEPT AS PROVIDED AT 29 C F R §
5 5(a)(4), LABORERS OR MECHANICS PERFORMING WORK IN MORE THAN ONE
CLASSIFICATION MAY BE COMPENSATED AT THE RATE SPECIFIED FOR EACH
CLASSIFICATION FOR THE TIME ACTUALLY WORKED THEREIN PROVIDED, THAT
THE EMPLOYER'S PAYROLL RECORDS ACCURATELY SET FORTH THE TIME SPENT
IN EACH CLASSIFICATION IN WHICH WORK IS PERFORMED THE WAGE DETER-
MINATION (INCLUDING ANY ADDITIONAL CLASSIFICATION AND WAGE RATES
CONFORMED UNDER 29 C F R § 5 5(a) (1) (ii) AND THE DAVIS-BACON
POSTER (WH-1321) SHALL BE POSTED AT ALL TIMES BY THE CONTRACTOR AND
ITS SUBCONTRACTORS AT THE SITE OF THE WORK IN A PROMINENT AND
ACCESSIBLE PLACE WHERE IT CAN BE EASILY SEEN BY THE WORKERS
(b) 1 THE CONTRACTING OFFICER SHALL REQUIRE THAT ANY
CLASS OF LABORERS OR MECHANICS THAT IS NOT LISTED IN THE WAGE
DETERMINATION AND THAT IS TO BE EMPLOYED UNDER THE CONTRACT SHALL
BE CLASSIFIED IN CONFORMANCE WITH THE WAGE DETERMINATION THE
CONTRACTING OFFICER SHALL APPROVE AN 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 CLASSIFICATION REQUEST-
ED IS NOT PERFORMED BY A CLASSIFICATION IN THE WAGE
DETERMINATION, AND
b THE CLASSIFICATION IS UTILIZED IN THE AREA BY THE
CONSTRUCTION INDUSTRY, AND
PAGE 30
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 REPRESENTA-
TIVES, AND THE CONTRACTING OFFICER AGREE ON THE CLASSIFICATION AND
WAGE RATE (INCLUDING THE AMOUNT DESIGNATED FOR FRINGE BENEFITS
WHERE APPROPRIATE), A REPORT OF THE ACTION TAKEN SHALL BE SENT BY
THE CONTRACTING OFFICER TO THE ADMINISTRATOR OF THE WAGE AND HOUR
DIVISION, EMPLOYMENT STANDARDS ADMINISTRATION, U S DEPARTMENT OF
LABOR, WASHINGTON, D C 20210 THE ADMINISTRATOR, OR AN AUTHORIZED
REPRESENTATIVE, WILL APPROVE, MODIFY, OR DISAPPROVE EVERY ADDITION-
AL CLASSIFICATION ACTION WITHIN 30 DAYS OF RECEIPT AND SO ADVISE
THE CONTRACTING OFFICER OR WILL NOTIFY THE CONTRACTING OFFICER
WITHIN THE 30-DAY PERIOD THAT ADDITIONAL TIME IS NECESSARY
3 IN THE EVENT THE CONTRACTOR, LABORERS OR MECHANICS TO
BE EMPLOYED IN THE CLASSIFICATION OR THEIR REPRESENTATIVES, AND THE
CONTRACTING OFFICER DO NOT AGREE ON THE PROPOSED CLASSIFICATION AND
WAGE RATE (INCLUDING THE AMOUNT DESIGNATED FOR FRINGE BENEFITS,
WHERE APPROPRIATE), THE CONTRACTING OFFICER SHALL REFER THE QUES-
TIONS INCLUDING THE VIEWS OF ALL INTERESTED PARTIES AND THE RECOM-
MENDATXON OF THE CONTRACTING OFFICER, TO THE ADMINISTRATOR FOR
DETERMINATION THE ADMINISTRATOR, OR AN AUTHORIZED REPRESENTATIVE,
WILL ISSUE A DETERMINATION WITHIN 30 DAYS OF RECEIPT AND SO ADVISE
THE CONTRACTING OFFICER OR WILL NOTIFY THE CONTRACTING OFFICER
WITHIN THE 30-DAY PERIOD THAT ADDITIONAL TIME IS NECESSARY
4, THE WAGE RATE (INCLUDING FRINGE BENEFITS WHERE APPRO-
PRIATE) DETERMINED PURSUANT TO 29 C F R § 5 5(a) (1) (1) (B) OR 29
C F R § 5 5(a) (1) (1) (C), SHALL BE PAID TO ALL WORKERS PERFORM-
ING WORK IN THE CLASSIFICATION UNDER THIS CONTRACT FROM THE FIRST
DAY ON,WHICH WORK IS PERFORMED IN THE CLASSIFICATION
(c) WHENEVER THE MINIMUM WAGE RATE PRESCRIBED IN THE
CONTRACT FOR A CLASS OF LABORERS OR MECHANICS INCLUDES A FRINGE
BENEFIT WHICH IS NOT EXPRESSED AS AN HOURLY RATE, THE CONTRACTOR
SHALL EITHER PAY THE BENEFIT AS STATED IN THE WAGE DETERMINATION OR
SHALL PAY ANOTHER BONA FIDE FRINGE BENEFIT OR AN HOURLY CASH
EQUIVALENT THEREOF
(d) IF THE CONTRACTOR DOES NOT MAKE PAYMENTS TO A TRUSTEE
OR OTHER THIRD PERSON, THE CONTRACTOR MAY CONSIDER AS PART OF THE
WAGES OF ANY LABORER OR MECHANIC THE AMOUNT OF ANY COSTS REASONABLY
ANTICIPATED IN PROVIDING BONA FIDE FRINGE BENEFITS UNDER A PLAN OR
PROGRAM, PROVIDED, THAT THE SECRETARY OF LABOR HAS FOUND, UPON THE
WRITTEN REQUEST OF THE CONTRACTOR, THAT THE APPLICABLE STANDARDS OF
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,
PAGE 31
UNDER THIS AGREEMENT OR ANY OTHER FEDERAL CONTRACT WITH THE SAME
AGENCY OR ANY OTHER FEDERALLY-ASSISTED CONTRACT SUBJECT TO DAVIS-
BACON PREVAILING WAGE REQUIREMENTS, WHICH IS WITHHELD BY THE SAME
PRIME CONTRACTOR, SO MUCH OF THE ACCRUED PAYMENTS OR ADVANCES AS
MAY BE CONSIDERED NECESSARY TO PAY LABORERS AND MECHANICS, INCLUD-
ING APPRENTICES, TRAINEES, AND HELPERS, EMPLOYED BY THE CONTRACTOR
OR ANY SUBCONTRACTOR THE FULL AMOUNT OF WAGES REQUIRED BY THE
CONTRACT IN THE EVENT OF FAILURE TO PAY ANY LABORER OR MECHANIC,
INCLUDING ANY 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 DEVEL-
OPMENT OF THE PROJECT), ALL OR PART OF THE WAGES REQUIRED BY THE
CONTRACT, UMTA MAY, AFTER WRITTEN NOTICE TO THE CONTRACTOR, SPON-
SOR, APPLICANT, OR OWNER, TAKE SUCH ACTION AS MAY BE NECESSARY TO
CAUSE THE SUSPENSION OF ANY FURTHER PAYMENT, ADVANCE, OR GUARANTEE
OF FUNDS UNTIL SUCH VIOLATIONS HAVE CEASED
3 PAYROLLS AND BASIC RECORDS (a) PAYROLLS AND BASIC RECORDS
RELATING THERETO SHALL BE MAINTAINED BY THE CONTRACTOR DURING THE
COURSE OF THE WORK AND PRESERVED FOR A PERIOD OF THREE YEARS THERE-
AFTER FOR ALL LABORERS AND MECHANICS WORKING AT THE SITE OF THE
WORK (OR UNDER THE UNITED STATES HOUSING ACT OF 1937, OR UNDER THE
HOUSING ACT OF 1949, IN THE CONSTRUCTION OR DEVELOPMENT OF THE
PROJECT) SUCH RECORDS SHALL CONTAIN THE NAME, ADDRESS, AND SOCIAL
SECURITY NUMBER OF EACH SUCH WORKER, HIS OR HER CORRECT CLASSIFICA-
TION, HOURLY RATES OF WAGES PAID (INCLUDING RATES OF CONTRIBUTIONS
OR COSTS ANTICIPATED FOR BONA FIDE FRINGE BENEFITS OR CASH EQUIV-
ALENTS THEREOF OF THE TYPES DESCRIBED IN SECTION 1(b) (2) (B) OF
THE DAVIS-BACON ACT), DAILY AND WEEKLY NUMBER OF HOURS WORKED,
DEDUCTIONS MADE AND ACTUAL WAGES PAID WHENEVER THE SECRETARY OF
LABOR HAS FOUND UNDER 29 C F R § 5 5(a) (1) (iv) THAT THE WAGES OF
ANY LABORER OR MECHANIC INCLUDE THE AMOUNT OF ANY COSTS REASONABLY
ANTICIPATED IN PROVIDING BENEFITS UNDER A PLAN OR PROGRAM DESCRIBED
IN SECTION 1(b) (2) (B) OF THE DAVIS-BACON ACT, THE CONTRACTOR
SHALL MAINTAIN RECORDS WHICH SHOW THAT THE COMMITMENT TO PROVIDE
SUCH BENEFITS IS ENFORCEABLE, THAT THE PLAN OR PROGRAM IS FINAN-
CIALLY RESPONSIBLE, AND THAT THE PLAN OR PROGRAM HAS BEEN COMMUNI-
CATED IN WRITING TO THE LABORERS OR MECHANICS AFFECTED, AND RECORDS
WHICH SHOW THE COSTS ANTICIPATED OR THE ACTUAL COSTS INCURRED IN
PROVIDING SUCH BENEFITS CONTRACTORS EMPLOYING APPRENTICES OR
TRAINEES UNDER APPROVED PROGRAMS SHALL MAINTAIN WRITTEN EVIDENCE OF
THE REGISTRATION OF APPRENTICESHIP PROGRAMS AND CERTIFICATION OF
TRAINEE PROGRAMS, THE REGISTRATION OF THE APPRENTICES AND TRAINEES,
AND THE RATIOS AND WAGE RATES PRESCRIBED IN THE APPLICABLE
PROGRAMS
(b) 1 THE CONTRACTOR SHALL SUBMIT WEEKLY FOR EACH WEEK IN
WHICH ANY CONTRACT WORK IS PERFORMED A COPY OF ALL PAYROLLS TO UMTA
IF UMTA IS A PARTY TO THE CONTRACT, BUT IF UMTA IS NOT SUCH A
PARTY, THE CONTRACTOR WILL SUBMIT THE PAYROLLS TO THE APPLICANT,
SPONSOR, OR OWNER, AS THE CASE MAY BE, FOR TRANSMISSION TO UMTA
THE PAYROLLS SUBMITTED SHALL SET OUT ACCURATELY AND COMPLETELY ALL
OF THE INFORMATION REQUIRED TO BE MAINTAINED UNDER 29 C F R §
5 5(a) (3) (1) THIS INFORMATION MAY BE SUBMITTED IN ANY FORM
DESIRED OPTIONAL FORM WH-347 IS AVAILABLE FOR THIS PURPOSE AND
PAGE 32
MAY BE PURCHASED FROM THE SUPERINTENDENT OF DOCUMENTS (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 ACCOMPANIED BY A
"STATEMENT OF COMPLIANCE," SIGNED BY THE CONTRACTOR OR SUBCONTRAC-
TOR ORRIS OR HER AGENT WHO PAYS OR SUPERVISES THE PAYMENT OF THE
PERSONS EMPLOYED UNDER THE CONTRACT AND SHALL CERTIFY THE FOLLOW-
ING
(a) THAT THE PAYROLL FOR THE PAYROLL PERIOD CONTAINS THE
INFORMATION REQUIRED TO BE MAINTAINED UNDER 29 C F R § 5 5 (a) (3)
(i) AND THAT SUCH INFORMATION IS CORRECT AND COMPLETE,
(b) THAT EACH LABORER OR MECHANIC (INCLUDING EACH HELPER,
APPRENTICE, AND TRAINEE) EMPLOYED ON THE CONTRACT DURING THE
PAYROLL PERIOD HAS BEEN PAID THE FULL WEEKLY WAGES EARNED, WITHOUT
REBATE, EITHER DIRECTLY OR INDIRECTLY, AND THAT NO 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 CON-
TRACT
3 THE WEEKLY SUBMISSION OF A PROPERLY EXECUTED CERTI-
FICATION SET FORTH ON THE REVERSE SIDE OF OPTIONAL FORM WH-347
SHALL SATISFY THE REQUIREMENT FOR SUBMISSION OF THE "STATEMENT OF
COMPLIANCE" REQUIRED BY 29 C F R § 5 5(a) (3) (ii) (B)
4 THE FALSIFICATION OF ANY OF THE ABOVE CERTIFICA-
TIONS MAY SUBJECT THE CONTRACTOR OR SUBCONTRACTOR TO CIVIL OR
CRIMINAL PROSECUTION UNDER 18 U S C § 1001 AND 31 U S C § 231
(c) THE CONTRACTOR OR SUBCONTRACTOR SHALL MAKE THE
RECORDS REQUIRED UNDER 29 C F R § 5 5(a) (3) (1) AVAILABLE FOR
INSPECTION, COPYING, OR TRANSCRIPTION BY AUTHORIZED REPRESENTATIVES
OF UMTA OR THE DEPARTMENT OF LABOR, AND SHALL PERMIT SUCH REPRE-
SENTAT;VES TO INTERVIEW EMPLOYEES DURING WORKING HOURS ON THE JOB
IF THEi 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 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
PAGE 33
FIDE APPRENTICESHIP PROGRAM REGISTERED WITH THE U S DEPARTMENT OF
LABOR, EMPLOYMENT AND TRAINING ADMINISTRATION, BUREAU OF APPREN-
TICESHIP AND TRAINING, OR WITH A STATE APPRENTICESHIP AGENCY RECOG-
NIZED BY THE BUREAU, OR IF A PERSON IS EMPLOYED IN HIS OR HER FIRST
90 DAYS OF PROBATIONARY EMPLOYMENT AS AN APPRENTICE IN SUCH AN
APPRENTICESHIP PROGRAM, WHO IS NOT INDIVIDUALLY REGISTERED IN THE
PROGRAM, BUT WHO HAS BEEN CERTIFIED BY THE BUREAU OF APPRENTICESHIP
AND TRAINING OR A STATE APPRENTICESHIP AGENCY (WHERE APPROPRIATE)
TO BE ELIGIBLE FOR PROBATIONARY EMPLOYMENT AS AN APPRENTICE THE
ALLOWABLE RATIO OF APPRENTICES TO JOURNEYMEN ON THE JOB SITE IN ANY
CRAFT CLASSIFICATION SHALL NOT BE GREATER THAN THE RATIO PERMITTED
TO THE CONTRACTOR AS TO THE ENTIRE WORK FORCE UNDER THE REGISTERED
PROGRAM ANY WORKER LISTED ON A PAYROLL AT AN APPRENTICE WAGE
RATE, WHO IS 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 PERFORMED IN
ADDITION, ANY APPRENTICE PERFORMING WORK ON THE JOB SITE IN EXCESS
OF THE RATIO PERMITTED UNDER THE REGISTERED PROGRAM SHALL BE PAID
NOT LESS THAN THE APPLICABLE WAGE RATE ON THE WAGE DETERMINATION
FOR THE WORK ACTUALLY PERFORMED WHERE A CONTRACTOR IS PERFORMING
CONSTRUCTION ON A PROJECT IN A LOCALITY OTHER THAN THAT IN WHICH
ITS PROGRAM IS REGISTERED, THE RATIOS AND WAGE RATES (EXPRESSED IN
PERCENTAGES OF THE JOURNEYMAN'S HOURLY RATE) SPECIFIED IN THE
CONTRACTOR'S OR SUBCONTRACTOR'S REGISTERED PROGRAM SHALL BE OB-
SERVED EVERY APPRENTICE MUST BE PAID AT NOT LESS THAN THE RATE
SPECIFIED IN THE REGISTERED PROGRAM FOR THE APPRENTICE'S LEVEL OF
PROGRESS, EXPRESSED AS A PERCENTAGE OF THE JOURNEYMAN HOURLY RATE
SPECIFIED IN THE APPLICABLE WAGE DETERMINATION APPRENTICES SHALL
BE PAID FRINGE BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE
APPRENTICESHIP PROGRAM IF THE APPRENTICESHIP PROGRAM DOES NOT
SPECIFY FRINGE BENEFITS, APPRENTICES MUST BE PAID THE FULL AMOUNT
OF FRINGE BENEFITS LISTED ON THE WAGE DETERMINATION FOR THE APPLI-
CABLE CLASSIFICATION IF THE ADMINISTRATOR DETERMINES THAT A
DIFFERENT PRACTICE PREVAILS FOR THE APPLICABLE APPRENTICE CLASSIFI-
CATION, 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 CON-
TRACTOR WILL NO LONGER BE PERMITTED TO UTILIZE APPRENTICES AT LESS
THAN THE APPLICABLE PREDETERMINED RATE FOR THE WORK PERFORMED UNTIL
AN ACCEPTABLE PROGRAM IS APPROVED
(b) TRAINEES EXCEPT AS PROVIDED IN 29 C F R § 5 16,
TRAINEES WILL NOT BE PERMITTED TO WORK AT LESS THAN THE PREDETER-
MINED RATE FOR THE WORK PERFORMED UNLESS THEY ARE EMPLOYED PURSUANT
TO AND INDIVIDUALLY REGISTERED IN A PROGRAM WHICH HAS RECEIVED
PRIOR APPROVAL, EVIDENCED BY FORMAL CERTIFICATION BY THE U S
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 PERCENTAGE OF THE
JOURNEYMAN HOURLY RATE SPECIFIED IN THE APPLICABLE WAGE DETERMINA-
TION TRAINEES SHALL BE PAID FRINGE BENEFITS IN ACCORDANCE WITH
PAGE 34
THE PROVISIONS OF THE TRAINEE PROGRAM IF THE TRAINEE PROGRAM DOES
NOT MENTION FRINGE BENEFITS, TRAINEES SHALL BE PAID THE FULL AMOUNT
OF FRINGE BENEFITS LISTED ON THE WAGE DETERMINATION UNLESS THE
ADMINISTRATOR OF THE WAGE AND HOUR DIVISION DETERMINES THAT THERE
IS AN APPRENTICESHIP PROGRAM ASSOCIATED WITH THE CORRESPONDING
JOURNEYMAN WAGE RATE ON THE WAGE DETERMINATION, THAT PROVIDES FOR
LESS THAN 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 DETERMINATION FOR THE WORK ACTUALLY PERFORMED IN THE EVENT
THE EMPLOYMENT AND TRAINING ADMINISTRATION WITHDRAWS APPROVAL OF A
TRAINING PROGRAM, THE CONTRACTOR WILL NO LONGER BE PERMITTED TO
UTILIZE TRAINEES AT LESS THAN THE APPLICABLE PREDETERMINED RATE FOR
THE WORK PERFORMED UNTIL AN ACCEPTABLE PROGRAM IS APPROVED
(C) EQUAL EMPLOYMENT OPPORTUNITY THE UTILIZATION OF
APPRENTICES, TRAINEES, AND JOURNEYMEN UNDER 29 C F R PART 5 SHALL
BE IN 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
S 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 DIS-
PUTES 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 DIS-
PUTES WITHIN THE MEANING OF THIS CLAUSE INCLUDE DISPUTES BETWEEN
THE CONTRACTOR (OR ANY OF ITS SUBCONTRACTORS) AND THE CONTRACTING
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
PAGE 35
VIRTUE OF SECTION 3 (a) OF THE DAVIS-BACON ACT OR 29 C F R §
5 12(a) (1)
(b) NO PART OF THIS CONTRACT SHALL BE SUBCONTRACTED TO ANY
PERSON OR FIRM INELIGIBLE FOR AWARD OF A GOVERNMENT CONTRACT BY
VIRTUE OF SECTION 3(a) OF THE DAVIS-BACON ACT OR 29 C F R §
5 12 (a) (1)
(C) THE PENALTY FOR MAKING FALSE STATEMENTS IS PRESCRIBED
IN THE U S CRIMINAL CODE, 18 U S C § 1001
10 OVERTIME REQUIREMENTS NO CONTRACTOR OR SUBCONTRACTOR
CONTRACTING FOR ANY PART OF THE CONTRACT WORK WHICH MAY REQUIRE OR
INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS SHALL REQUIRE OR
PERMIT ANY 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 UN1'A I O WAUZb L UM I UATAW WAMAS90)
IN THE EVENT OF ANY VIOLATION OF THE REQUIREMENTS OF 29 C F R §
5 5(b) (1), THE CONTRACTOR AND ANY SUBCONTRACTOR RESPONSIBLE THERE-
FOR SHALL BE LIABLE FOR THE UNPAID WAGES IN ADDITION, SUCH CON-
TRACTOR AND SUBCONTRACTOR SHALL BE LIABLE TO THE UNITED STATES (IN
THE CASE OF WORK DONE UNDER CONTRACT FOR THE DISTRICT OF COLUMBIA
OR A TERRITORY, TO SUCH DISTRICT OR TO SUCH TERRITORY) FOR LIQUI-
DATED DAMAGES SUCH LIQUIDATED DAMAGES SHALL BE COMPUTED WITH
RESPECT TO EACH INDIVIDUAL LABORER OR MECHANIC, INCLUDING WATCHMEN
AND GUARDS, EMPLOYED IN VIOLATION OF 29 C F R § 5 5(b) (1) IN THE
SUM OF $10 FOR EACH CALENDAR DAY ON WHICH SUCH INDIVIDUAL WAS
REQUIRED OR PERMITTED TO WORK IN EXCESS OF THE STANDARD WORK WEEK
OF FORTY HOURS WITHOUT PAYMENT OF THE OVERTIME WAGES REQUIRED BY 29
C F R § 5 5(b) (1)
12 WITHHOLDING FOR UNPAID WAGES AND LIQUIDATED DAMAGES UMTA
OR THE AGENCY SHALL UPON ITS OWN ACTION OR UPON WRITTEN REQUEST OF
AN AUTHORIZED REPRESENTATIVE OF THE DEPARTMENT OF LABOR WITHHOLD OR
CAUSE TO BE WITHHELD, FROM ANY MONEYS PAYABLE ON ACCOUNT OF WORK
PERFORMED BY THE CONTRACTOR OR SUBCONTRACTOR UNDER ANY SUCH CON-
TRACT OR ANY OTHER FEDERAL CONTRACT WITH THE SAME PRIME CONTRACTOR,
OR ANY OTHER FEDERALLY-ASSISTED CONTRACT SUBJECT TO THE CONTRACT
WORK HOURS AND SAFETY STANDARDS ACT, WHICH IS HELD BY THE SAME
PRIME CONTRACTOR, SUCH SUMS AS MAY BE DETERMINED TO BE NECESSARY TO
SATISFY ANY LIABILITIES OF SUCH CONTRACTOR OR SUBCONTRACTOR FOR
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 SUBSECTIONS 116 a (1)
THROUGH (12) OF PART II OF THIS AGREEMENT AND ALSO A CLAUSE REQUIR-
ING THE SUBCONTRACTORS TO INCLUDE THESE CLAUSES IN ANY LOWER TIER
SUBCONTRACTS THE PRIME CONTRACTOR SHALL BE RESPONSIBLE FOR COM-
PLIANCE BY ANY SUBCONTRACTOR OR LOWER TIER SUBCONTRACTOR WITH THE
PAGE 36
CLAUSES SET FORTH IN SUBSECTIONS 116 a (1) THROUGH 116 a (12) OF
THE CITYIS 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
NORCONSTRUCTION CONTRACTS THE REQUIREMENTS OF THE CLAUSES
CONTAI ED IN 29 C F R § 5 5(b) OR SUBSECTIONS 116 a (10) THROUGH
116 a (13) OF PART II OF THIS AGREEMENT ARE APPLICABLE TO ANY
CONTRACT SUBJECT TO THE OVERTIME PROVISIONS OF THE CONTRACT WORK
HOURS AND SAFETY STANDARDS ACT AND NOT TO ANY OF THE OTHER STATUTES
CITED IN 29 C F R § 5 1 THE CONTRACTOR OR SUBCONTRACTOR SHALL
MAINTAIN PAYROLLS AND BASIC PAYROLL RECORDS DURING THE COURSE OF
THE WORK AND SHALL PRESERVE THEM FOR A PERIOD OF THREE YEARS FROM
THE COMPLETION OF THE CONTRACT FOR ALL LABORERS AND MECHANICS,
INCLUDING GUARDS AND WATCHMEN, WORKING ON THE CONTRACT SUCH
RECORDS SHALL CONTAIN THE NAME AND ADDRESS OF EACH SUCH EMPLOYEE,
SOCIAL SECURITY NUMBER, CORRECT CLASSIFICATIONS, HOURLY RATES OF
WAGES PAID, DAILY AND WEEKLY NUMBER OF HOURS WORKED, DEDUCTIONS
MADE, AND ACTUAL WAGES PAID THE RECORDS TO BE MAINTAINED UNDER
THIS CLAUSE SHALL BE MADE AVAILABLE BY THE CONTRACTOR OR SUB-
CONTRACTOR FOR INSPECTION, COPYING, OR TRANSCRIPTION BY AUTHORIZED
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
1 The National Environmental Policy Act of 1969, as amended,
42 U S C 4321 St sea•, Section 14 of the Urban Mass Transporta-
tion Act of 1964, as amended, 49 U S C app 1601 gt sec., the
Council on Environmental Quality regulations, 40 C F R Part 1500
it sea., and the FHWA/UMTA regulation, "Environmental Impact and
Related Procedures," 23 C F R Part 771, as amended, are applicable
to the Project
2 The Agency shall comply with the provisions of the Clean
Air Act, as amended, 42 U S C 1857 _qt seg., the Federal Water
Pollution Control Act, as amended, 33 U S C 1251 at sec., 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 super-
vision, whether directly or under contract, that will be utilized
in the accomplishment of the Project are not listed on the Environ-
mental Protection Agency (EPA) List of Violating Facilities Con-
tracts, subcontracts, and subgrants of amounts in excess of
$100,000 shall contain a provision requiring compliance with all
applicable standards, orders, or requirements issued pursuant to
Federal statute or regulation The Agency and any third party
contractor thereof shall be responsible for reporting any viola-
tions to City and UMTA and to the EPA Assistant Administrator for
Enforcement In addition, the Agency shall notify city and UNTA of
PAGE 37
the receipt of any communication from the Director of the EPA
Office of Federal Activities indicating that a facility to be
utilized in the Project is under consideration for listing by EPA
3 No facilities or equipment shall be acquired, constructed,
or improved as a part of the Project unless the Agency obtains
satisfactory assurances that they are (or will be) designed and
equipped to limit air pollution as provided in accordance with the
following EPA regulations "Control of Air Pollution from Motor
Vehicles and Motor Vehicle Engines," 40 C F R Part 85, "Control of
Air Pollution from New Motor Vehicles and New Motor Vehicle En-
gines; Test Procedures for Light-Duty Vehicles and Light-Duty
Trucks and Selective Enforcement Auditing of New Light-Duty Vehi-
cles, Light-Duty Trucks and Heavy-Duty Engines," 40 C F R Part 86,
and "Fuel Economy of Motor Vehicles," 40 C F R Part 600, in accor-
dance with applicable federally-approved State Implementation
Plan(s) (in particular, the Transportation Control Measures), and
in accordance with appropriate UMTA directives and all other
applicable standards
4 No publicly owned land from a park, recreation area, or
wildlife or waterfowl refuge of national, State, or local signifi-
cance as determined by the Federal, State, or local officials
having jurisdiction thereof, or any land from an historic site of
national, state, or local significance may be used for the Project
unless specific findings required under 49 U S C § 303 are made by
the Department of Transportation
5 The Agency shall assist the Government (UMTA) to comply
with section 106 of the National Historic Preservation Act invol-
ving historic and archaeological preservation by
(1) Consulting the State Historic Preservation Officer on the
conduct of investigations, in accordance with Advisory Council on
Historic 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 (UNTA) of the existence of any such
properties, and
(2) Complying with all Federal requirements to avoid or miti-
gate 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 sea
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
PAGE 38
may be identified as commitments in applicable environmental docu-
ments (such as environmental assessments, environmental impact
statements, memoranda of agreements, and statements required by
49 U S C § 303) and with any conditions imposed by the Government
as part of a finding of no significant impact or a record of deci-
sion, all such mitigation measures are incorporated in and made
part of this Agreement by reference In the event that some or all
mitigation measures are deferred, once such measures are agreed
upon by the Government, City and the Agency, those mitigation
methods subsequently determined will be incorporated into this
Agreement Such mitigation measures may not be modified or with-
drawn without the express written approval of the Government
8 In carrying out the Project, the Agency shall make all
appropriate efforts to foster the use of fly ash, substantially in
compliance with EPA regulations "Guideline for Federal Procurement
of Cement and Concrete Containing Fly Ash," 40 C F R Part 249
Should the Agency make a determination that the use of fly ash is
inappropriate in a particular procurement of cement or concrete,
the Agency shall provide UMTA a written justification to support
that decision
X MISCELLANEOUS
1 Agency shall comply with Department of Transportation
regulations, "Uniform Relocation and Real Property Acquisition
Regulation for Federal and Federally Assisted Programs," 49 C F R
Part 24
2 Agency shall comply with the flood insurance purchase
requirements of section 102(a) of the Flood Disaster Protection Act
of 1973, 42 U S C § 4012(a), with respect to any construction or
acquisition Project
3 Agency shall comply with the bus testing requirements as
set forth in section 12(h) of the Urban Mass Transportation Act of
1964, as amended, 49 U S C app § 1608(h), and any implementing
regulations that may be issued thereunder
4 Agency shall comply with any regulations that may be issued
to implement section 12(j) of the Urban Mass Transportation Act, of
1964, as amended, 49 U S C app § 1608(j)
5 If any invention, improvement, or discovery of the Agency
or any of 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 responsibili-
ties of the Agency, third party contractors, the City and the
Government with respect to such invention, improvement, or
discovery will be determined in accordance with applicable Federal
laws, regulations, policies, and any waiver thereof
PAGE 39
6
a The term "subject data" as used herein means recorded
information, whether or not copyrighted, that is delivered or
specified to be delivered under this Agreement The term includes
graphic or pictorial delineations in media such as drawings or
photographs, text in specifications or related performance or
design-type documents, machine forms such as punched cards, mag-
netic tape, or computer memory printouts, and information retained
in computer memory Examples include, but are not limited to
computer software, engineering drawings and associated lists,
specifications, standards, process sheets, manuals, technical
reports, catalog item identifications, and related information
The term does not include financial reports, cost analyses, and
similar information incidental to Project administration
b The following restrictions apply to all subject data first
produced in the performance of this Agreement
(1) Except for its own internal use, the Agency may not publish
or reproduce such data in whole or in part, or in any manner or
form, nor may the Agency authorize others to do so, without the
written consent of the City and the Government, until such time as
the Government may have either released or approved the release of
such data to the public, this restriction on publication, however,
does not apply to Agreements with academic institutions
(2) As authorized by 49 C F R Part 18 34, the City and the
Government (UMTA) reserve a royalty-free, non-exclusive and irrevo-
cable license to reproduce, publish or otherwise use, and to autho-
rize others to use, for Federal Government purposes
(a) Any work developed under a grant, cooperative agree-
ment, sub-grant, sub-agreement, or third party contract, irrespec-
tive of whether or not a copyright has been obtained, and
(b) Any rights of copyright to which a Agency, sub-recipi-
ent, or a third party contractor purchases ownership with Federal
assistance
c Agency understands and agrees that, in addition to the
rights set forth in Subsection 119 b (2) of Part ii of this Agree-
ment, UMTA may make available to any UMTA recipient, sub-grantee,
sub-recipient, third party contractor, or third party subcontrac-
tor, either UMTA's license in the copyright to the "subject data"
derived under this Agreement or a copy of the "subject data" first
produced under this Agreement
d The City and Agency shall indemnify, save and hold
harmless the Government, its officers, agents, and employees acting
within the scope of their official duties against any liability,
including costs and expenses, resulting from any willful or inten-
tional violation by the Agency of proprietary rights, copyrights,
or right of privacy, arising out of the publication, translation,
PAGE 40
reproduction, delivery, use, or disposition of any data furnished
under this Agreement
e Nothing contained in this clause shall imply a license to
the City or Government under any patent or be construed as affect-
ing the scope of any license or other right otherwise granted to
the City or Government under any patent
f Subsections b , c and d of Part II of this Section are
not applicable to material furnished to the Agency by the U S
Government and incorporated in the work furnished under the Agree-
ment, provided that such incorporated material is identified by the
Agency at the time of delivery of such work
g In the 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 Sec-
tion shall be included in all third party contracts of the Agency
under this Project
7 Privacy. Should the Agency, or any or its third party
contractors, sub-grantees, sub-recipients or their employees
administer any system of records on behalf of the Federal Govern-
ment, the Privacy Act of 1974, 5 U S C § 552a (the Act), imposes
information restrictions on the party administering the system of
records
a For purposes of the Privacy Act, when the Agreement
involves the 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 termina-
tion
b As used herein
(1) "Operation of a system of records" means performance
of any of the activities associated with maintaining the system of
records on behalf of the Government including the collection, use
and dissemination of records
(2) "Record" means any item, collection, or grouping of
information about an individual that is maintained by the Agency on
behalf of the Government including, but not limited to, his or her
education, financial transactions, medical history, and criminal or
employment history and that contains his or her name, or the iden-
PAGE 41
tifying number, symbol, or other identifying particular assigned to
the individual, such as a finger or voice print or a photograph
(3) "System of records" on individuals means a group of
any records under the control of the Agency on behalf of the Gov-
ernment from which information is retrieved by the name of the
individual or by some identifying number, symbol or other identify-
ing particular assigned to the individual
Y GENERAL PROVISIONS
a Bonus or Commission. The Agency warrants that it has not
paid, and also agrees not to pay, any bonus or commission for the
purpose of obtaining approval of its application for the financial
assistance hereunder
b State or Territorial Law. Except to the extent that a
Federal statute or regulation conflicts with State or territorial
law, nothing in the Agreement shall require the Agency to observe
or enforce compliance with any provision thereof, perform any other
act, or do any other thing in contravention of any applicable State
or territorial law, however, if any of the provisions of the Agree-
ment violate any applicable State or territorial law, or if compli-
ance with the provisions of the Agreement would require the Agency
to violate any applicable State territorial law, the Agency shall
at once notify the Government (UMTA) in writing in order that
appropriate arrangements may be made by the Government and the
Agency to the end that the Agency may proceed as soon as possible
with the Project
c Records. The Agency will, for each local fiscal year
ending on or after July 1, 1978, conform to the reporting system
and the uniform system of accounts and records to the extent
required by section 15 of the Urban Mass Transportation Act of
1964, as amended, 49 U S C app § 1611, effective for each local
fiscal year ending on or after July 1, 1978, and applicable regu-
lations "Uniform System of Accounts and Records and Reporting
System," set forth at 49 C F R Part 630
d Severability. If any provision of this Agreement is held
invalid, the remainder of this Agreement shall not be affected
thereby if such remainder would then continue to conform to the
terms and requirements of applicable law
IN WITNESS WHEREOF, the parties do hereb the na-
tures and enter into this Agreement as of they day o~
1993
CITY OF DENTON, TEXAS
BOB CASTLEBERRY,
PAGE 42
ATTEST
JENNIFER WAITERS, CITY SECRETARY
BY
AP ED TO LEGAL FORM
DEBRA A DRAYOVITCH, CITY ATTORNEY
BY
SERVICES PROGRAM FOR AGING NEEDS
d
DIRECTOR
ATTEST
BY
SECRETARY
PAGE 43