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1993-050AAA0046F NOTE: GRANT AGREEMENT & NOTIFICATION OF GRANT APPROVAL AND GENERAL PROVISIONS IS ATTACHED. ORDINANCE NO. J op 0 AN ORDINANCE AUTHORIZING THE FILING OF AN APPLICATION WITH THE DEPARTMENT OF TRANSPORTATION, UNITED STATES OF AMERICA, FOR A GRANT UNDER THE URBAN MASS TRANSPORTATION ACT OF 1964, AS AMENDED; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Secretary of Transportation is authorized to award grants for a mass transportation program of projects and budget; and WHEREAS, the contract for financial assistance will impose certain obligations upon the applicant, such as the City of Denton, including an obligation to provide the local share of the project costs in the program; and WHEREAS, the U.S. Department of Transportation requires, in accordance with the provisions of Title VI of the Civil Rights Act of 1964, as amended, that the applicant give an assurance that it will comply with Title VI of the Civil Rights Act of 1964 and the Department of Transportation requirements thereunder; and WHEREAS, it is the goal of the applicant that minority business enterprises be utilized to the fullest extent possible in connec- tion with this project, and that definite procedures shall be established and administered to ensure that minority businesses shall have maximum construction contracts, supplies, equipment con- tracts, or consultant and other services; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. That the city manager is authorized to execute and file an application on behalf of the City of Denton, Texas, with the U.S. Department of Transportation to aid in the financing of planning, capital and operating assistance projects pursuant to Section 9 of the Urban Mass Transportation Act of 1964, as amended. SECTION II. That the City Manager is authorized to execute and file with such applications an assurance or any other document re- quired by the U.S. Department of Transportation effectuating the purpose of Title VI of the Civil Rights Act of 1964. SECTION III. That the City Manager or his designee is authorized to furnish such additional information as the U. S. Department of Transportation may require in connection with the application for the program of projects and budget. SECTION IV. That the City Manager is authorized to execute grant agreements on behalf of the City of Denton, Texas with the U.S. Department of Transportation for aid in the financing of the planning, capital and operating assistance program of projects and budget. SECTION V. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the A!~ day of , 1993. BOB CASTLEBERRY, MA ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPRO ED AS TO LEGAL FORM: DEBRA A. DRAYOVITCH, CITY ATTORNEY BY: PAGE 2 UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION FEDERAL TRANSIT ADMINISTRATION GRANT AGREEMENT PART I OF II NOTIFICATION OF GRANT APPROVAL and GENERAL PROVISIONS For Projects Authorized Under SECTIONS 3, 9, 9B, AND/OR 25 OF THE FEDERAL TRANSIT ACT, AS AMENDED 49 U.S.C. APP. SECTIONS 1602, 1607a, 1607a-2, AND/OR 1621; AND/OR TITLE 23, U.S.C. (HIGENAYS) Form FTA 3&9(B) March 1993 NOTIFICATION OF GRANT APPROVAL Grant No. TX-90-X278 Amendment No. GRANT RECIPIENT: City of Denton DESIGNATED RECIPIENT: City of Denton MASS TRANSPORTATION SYSTEM: SPAN SECTION OF STATUTE: Section 9 ESTIMATED NET PROJECT COST OF THIS PROJECT OR ALL THE PROJECTS IN THIS PROGRAM: $651,250 MAXIMUM FEDERAL FUNDS APPROVED [INCLUDING ANY AMENDMENTSI: $389,000 ESTIMATED FEDERAL SHARE OF THIS AMENDMENT: -0- MAXIMUM PERCENTAGE(S) OF FEDERAL PARTICIPATION: Original Grant: 80 percent capital and planning/50 percent operating Amendment Number 1: Amendment Number 2: DATE OF DEPARTMENT OF LABOR SECTION 13(C) CERTIFICATION LETTER(S): Original Grant or 13(c) Grant Number Amendment Number Certification Date TX-90-X278 Original Grant 4/23/93 1 2 -2- PROGRAM/PROJECT DESCRIPTION See attached Approved Project Budget COMPLETION DATE: SPECIAL CONDITIONS AND/OR SPECIAL REQUIREMENTS: SPECIAL PROVISIONS: The Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. 102-240, includes several name changes affecting the transit program as set forth below: (1) Section 3003(a) of the Intermodal Surface Transportation Efficiency Act of 1991 changed the name of the "Urban Mass Transportation Act of 1964" to the "Federal Transit Act." Therefore, any reference in any law, map, regulation, document, paper, or other record of the United States to the Urban Mass Transportation Act shall be deemed a reference to the Federal Transit Act. (2) Section 3004(a) of the Intermodal Surface Transportation Efficiency Act of 1991 changed the name of the "Urban Mass Transportation Administration" to the "Federal Transit Administration." Therefore, any reference in any law, map, regulation, document, paper, or other record of the United States to the Urban Mass Transportation Administration shall be deemed a reference to the Federal Transit Administration. (3) Section 3004(c) of the Intermodal Surface Transportation Efficiency Act of 1991 changed the name of the "Urban Mass Transportation Administrator" to the "Federal Transit Administrator." Therefore, any reference in any law, map, regulation, document, paper, or other record of the United States to the Urban Mass Transportation Administrator shall be deemed a reference to the Federal Transit Administrator. SPECIAL REOUIREMENT: In accordance with Section 623 of the Treasury, Postal Service and General Government Appropriations Act of 1992, Pub. L. 102-141, with respect to any procurement for goods or services (including construction services) having an aggregate value of $500,000 or more, the Grantee agrees to: (1) specify in any announcement of the awarding of the contract for such goods or services the amount of Federal funds that will be used to finance the acquisition; and (2) express the said amount as a percentage of the total costs of the planned acquisition. Special Requirement for projects involving the purchase of revenue service rolling stock. The Grantee agrees to conduct or have conducted preaward and postaward delivery audits of revenue service rolling stock purchased with funds obligated by the Federal Transit -3- Administration regulations at certifications regulations. JUN 3 0 1993 under this grant agreement as prescribed by the 49 CFR Part 663 and will maintain on file the required under Subparts B, C, and D of the OBLIGATION DATE Attachment A "FOR FTA USE ONLY" GRANT NUMBER: TX-90-X278 GRANTEE VENDOR NUMBER: 5524 IS THIS GRANT TO BE PAID ON THE ECHO SYSTEM? Yes No X IF YES, PROVIDE NUMBER. IF YES, BUT YOU DO NOT KNOW THE NUMBER BECAUSE THE ECHO CONTROL NUMBER IS CURRENTLY BEING ESTABLISHED BY THE ACCOUNTING DIVISION, PLEASE INDICATE BY PLACING A CHECK IN THE FOLLOWING SPACE. SOURCES OF FEDERAL FINANCIAL ASSISTANCE FOR THIS GRANT: PREVIOUS THIS FFY APPN SEC LIM TA FPC OBLIGATION ACTION TOTAL 90 21 90 91 1 04 -0- $172,136 $172,136 91 21 90 91 1 04 -0- $47,864 $47,864 91 21 90 91 1 00 -0- $120,626 $120,626 93 21 90 91 1 00 -0- $24,374 $24,374 93 21 90 91 1 02 -0- $24,000 $24,000 APPROVAL DATE 06/30/93 GRANTEE: CITY OF DENTON DENTON, TEXAS GRANT NO.: TX-90-X278-00 APPROVED PROJECT BUDGET BUDGET NO.: 01 SCOPE 111-01 BUS - ROLLING STOCK QUANTITY: 2 ACTIVITY 11.12.04 BUY REPLACEMENT <30 FT BUS $ QUANTITY: 2 SCOPE 300-01 OPERATING ASSISTANCE $ ACTIVITY 30.09.00 OPERATING ASSISTANCE FOR THE $ PERIOD 10/1/93 TO 9/30/94 SCOPE 411-01 PLANNING-TECH CLASSIFICATIONS $ ACTIVITY 41.11.00 PROGRAM SUPPORT/ADMINISTRATION $ TOTAL 24,000 $ 30,000 3899000 $ 6519250 ESTIMATED NET PROJECT COST $ 651,250 FEDERAL SHARE $ 389,000 LOCAL SHARE $ 262,250 SOURCES OF FEDERAL FINANCIAL ASSISTANCE FUNDING UZA: 480000 FUNDING UZA NAME: TEXAS ACCOUNTING PREVIOUSLY AMENDMENT CLASSIFICATION FPC DESCRIPTION APPROVED AMOUNT TOTAL 93.21.90.91.1 00 FY 1993, SEC 9 $ 0 $ 24,374 $ 24,374 CAPITAL 93.21.90.91.1 02 FY 1993, SEC 9 $ 0 $ 24,000 $ 24,000 PLANNING 91.21.90.91.1 00 FY 1991, SEC 9 $ 0 $ 120,626 $ 120,626 CAPITAL 91.21.90.91.1 04 FY 1991, SEC 9 $ 0 $ 47,864 $ 47,864 OPERATING 90.21.90.91.1 04 FY 1990, SEC 9 $ 0 $ 172,136 $ 172,136 OPERATING SUB TOTAL: $ 0 $ 389,000 $ 389,000 PAGE 1 FEDERAL AMOUNT TOTAL AMOUNT 145,000 $ 181,250 145,000 $ 181,250 220,000 $ 440,000 220,000 $ 440,000 24,000 $ 30,000 GENERAL PROVISIONS For Projects Authorized Under SECTIONS 3, 9, 9B, AND/OR 25 OF THE FEDERAL TRANSIT ACT, AS AMENDED 49 U.S.C. APP. SECTIONS 1602, 1607a, 1607a-2, AND/OR 1621; AND/OR TITLE 23, U.S.C. (HIGHKAYS) The U.S. Department of Transportation, Federal Transit Administration (FTA) and the Grant Recipient named in the Notification of Grant Approval have entered into this Grant Agreement. In consideration of the mutual covenants, promises, and representations herein, the parties hereto agree as follows: Section 1. Purpose of Grant Agreement. The purpose of this Grant Agreement is to set forth the terms and conditions under which the Government will provide Federal financial assistance to the Grant Recipient to carry out the public transit project (Project) or program of projects (Program) described in the Notification of Grant Approval. Section 2. The Project/Program. The Grant Recipient agrees to undertake and complete the Project or Program, and to provide for the use of the Project or Program facilities or equipment, substantially as described in its Application, incorporated herein by reference, filed with and approved by the Government, and in accordance with the terms and conditions of this Grant Agreement. The "Project/Program Description" in the Notification of Grant Approval describes the Project or Program to be funded by this-Grant Agreement. Section 3. Federal Financial Assistance. a. The Government intends to assist the Grant Recipient in financing that portion of the Project or Program that cannot reasonably be financed from the Grant Recipient's revenues, i.e., "Net Project Cost" of the Project or "Net Project Cost" of all projects in the Program. The Estimated Net Project Cost (which includes amendments) of all projects covered by this Grant Agreement is set forth on the Notification of Approval, and forms the basis for calculating the financial assistance under this Grant Agreement. Accordingly, the Government will provide Federal financial assistance in an amount equal to: (1) the maximum amount permitted by Federal law and regulations, or (2) the amount designated in the Notification of Grant Approval as "Maximum Federal Funds Approved," or (3) the amount designated in the Notification of Grant Form PTA 3&9(B) March 1993 Page 1 Approval as "Maximum Percentage(s) of Federal Participation," whichever is the least. b. For purposes of this Grant Agreement, "Net Project Cost" must be in conformance with the requirements of Office of Management and Budget Circular A-87, Revised, "Cost Principles Applicable to Grants and Contracts with State and Local Governments," and with applicable guidelines or regulations issued by the Government. c. The Government's obligation to make Federal assistance payments is limited to the amounts set forth in the Approved Project Budget. Section 4. Local Share. The Grant Recipient agrees that it will provide from sources other than (a) Federal funds (except as may otherwise be authorized by Federal statute), (b) receipts from the use of the Project or Program facilities or equipment (except as may otherwise be authorized by Federal statute) or (c) revenues of the public transit system in which such facilities or equipment are used, funds in an amount sufficient, together with the Federal financial assistance provided, to assure payment of the actual Project Cost of each project covered under this Grant Agreement. The Grant Recipient further agrees that no refund or reduction of the amount provided by the Government will be made at any time, unless there is at the same time a refund to the Government of a proportional amount of the Federal financial assistance provided, unless expressly approved in writing by the Government. The Grant Recipient's obligation to provide the Local Share is calculated on a project-by-project basis for each project covered by this Grant Agreement, whether or not the project'is included within a Program of Projects. Section 5. Labor Protection. The Grant Recipient agrees to carry out the Project in conformance with the terms and conditions determined by the Secretary of Labor to be fair and equitable to protect the interests of employees affected by the Project and meet the requirements of Section 13(c) of the Federal Transit Act, as amended, 49 U.S.C. app. Section 1609(c), and Department of Labor (DOL), "Guidelines, Section 13(c), Federal Transit Act, as Amended," 29 C.F.R. Part 215. These terms and conditions are identified in the letter of certification from the DOL to the FTA, the date of which letter is set forth in the Notification of Grant Approval. The Grant Recipient agrees to carry out the Project in compliance with the conditions stated in that DOL letter. That letter and any documents cited in that letter are incorporated herein by reference and made part of this Grant Agreement. Page 2 Section 6. Special Reguirements for Section 9 Projects. a. Fares and Services. The Grant Recipient agrees that it will use its established administrative process to solicit and consider public comment before raising fares or implementing a major reduction of service. b. Audit Requirement. The Government may, at least annually, and more frequently in its discretion, either conduct or require the Grant Recipient to have independently conducted reviews and audits as the Government deems appropriate, as authorized by the provisions of Section 9(g) of the Federal Transit Act, as amended, 49 U.S.C. app. Section 1607a(g), and applicable regulations or guidelines that the Government may issue. c. Half-Fare Requirement. The Grant Recipient 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 Grant 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 Grant Recipient or is by another entity under lease or otherwise. The Grant Recipient agrees and assures that it will give the rate required herein to any person presenting a Medicare card duly issued to that person pursuant to Title II or Title XVIII of the Social Security Act. d. Sole Source Procurement. The Grant Recipient may, without prior Government approval, procure an associated capital maintenance item eligible under Section 9(j) of the Federal Transit Act, as amended,-49 U.S.C. app. Section 1607a(j), by contract directly with the original manufacturer or supplier of the item to be replaced, provided that the Grant Recipient first certifies in writing to the Government that: (1) such manufacturer or supplier is the only source of such item; and (2) the price of such item is no higher than the price paid for such item by like customers; and provided that the Grant Recipient complies with applicable Buy America statutory and regulatory requirements. e. Section 15 Reporting Requirements. For each fiscal year, the Grant Recipient, and any mass transportation operator to which the Grant Recipient provides FTA funds, agrees to conform to the reporting system and the uniform system of accounts and records as required by Section 15 of the Federal Transit Act, as amended, 49 U.S.C. app. Section 1611, and FTA regulations, "Uniform System of Accounts and Records and Reporting System," 49 C.F.R. Part 630. Page 3 f. Annual Report on Advertising and Concession Revenues. The Grant Recipient agrees to submit an annual report to the FTA on advertising and concession revenues and sales. The Grant Recipient may satifsy this requirement by submitting the necessary data in its quarterly financial reports. g. Transit Security. For each fiscal year, the Grant Recipient agrees to spend at least one percent of its Section 9 funds for transit security projects, unless the Grant Recipient has certified to the FTA that such expenditures are not necessary. h. Use of FTA Funds for Operating Assistance Projects. Provided that the applicable operating assistance limitation is not exceeded, the Federal financial assistance provided under this Grant Agreement may be applied to the Net Project Cost of operating assistance projects financed under Section 9 of the Federal Transit Act, as amended, incurred during the project time period specified in the Approved Project Budget. Section 7. Project Management Plan for Maior Capital Projects. For each major capital project, the Grant Recipient agrees to implement a project management plan, as approved by the Government, in accordance with the requirements of Section 23 of the Federal Transit Act, as amended, 49 U.S.C. app. Section 1619, and applicable implementing regulations that may be issued thereunder. Section 8. The Grant Agreement. This Grant Agreement consists of two parts: this Part I of II, "Notification of Grant Approval and General Provisions," Form FTA 3&9(B), March 1993; and Part II of II, "Federal Transit Administration Agreement, Terms and Conditions," Form FTA II(B), March 1993. The latest Approved Project Budget is incorporated herein by reference and made part of this Grant Agreement. Should the Federal assistance award letter include special conditions for the Project or the projects in this Program, that letter is incorporated herein by reference and made part of this Grant Agreement. An amendment to any of these documents shall require a formal amendment to this Grant Agreement, except that a re-allocation of funds among budget items or fiscal years without increasing the total amount of the Federal financial assistance awarded may be made in accordance with all applicable FTA circulars and regulations. Any amendment granting additional financial assistance shall require the issuance of a new Approved Project Budget. Page 4 Section 9. Execution of Grant Agreement. This Grant Agreement may be simultaneously executed in several counterparts, each of which shall be deemed to be an original having identical legal effect. After the Notification of Grant Approval has been signed by the Government, this Grant Agreement should be executed by the Grant Recipient. The Government may withdraw its obligation hereunder if the Grant Agreement is not executed within ninety (90) days after the Obligation Date. The effective date of the Grant Agreement shall be the Obligation Date. The effective date of any Amendment shall be the Obligation Date for that Amendment. The Grant Recipient does hereby ratify and adopt all statements, representations, warranties, covenants, and materials submitted by it, and does hereby accept the Government's award of Federal financial assistance and agrees to all of the terms and conditions of this Grant Agreement. Executed this day of 1 ATTEST . d TITLFV AND ORGAN~tZ~TION 19-~Za. Page 5 CERTIFICATION OF GRANT RECIPIENT'S ATTORNEY I, Mike Bucek , acting as Attorney for the Grant Recipient do hereby certify that I have examined this Grant Agreement and have ascertained that execution of the Grant Agreement was authorized on the date of March 16, 1993. A copy of this authorization is attached or has previously been submitted to the FTA. The execution of this Grant Agreement and the proceedings taken by the Grant Recipient are in all respects due and proper and in accordance with applicable State and local law. I further certify that, in my opinion, said Grant Agreement constitutes a legal and binding obligation of the Grant Recipient in accordance with the terms thereof and certify that, to the best of my knowledge, there is no legislation or litigation pending or threatened which might adversely affect the performance of the Project in accordance with the terms of this Grant Agreement. Dated this day of J~~Li 19 Q e SIGNATURE Assistant City Attorney, City of Denton TITLE AND ORGANIZATION Page 6 UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATI1 FEDERAL TRANSIT ADM33TI.STRAT D.C. 20590 FEDERAL TRANSIT ADKEffISTRATION PART II OF II TERMS AND For Mass Transportation Projects financed under the Federal Transit Act, as amended, 49 U.S.C. app. 55 1601 g& egg.; under Title 23, U.S.C. (Highways); or under other provisions of the Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102-240, Dec. 18, 1991 Form FTA II(B) March 1993 TABLE OF CONTENTS Section 101. Definitions 1 Section 102. Accomplishment of the Project ................3 a. General Requirements ......3 b. Application of Federal, State, and Local Laws and Regulations .............3 c. Funds of the Recipient.. ...............4 d. Changed Conditions of Performance (Including Litigation)....... ...4 e. No Government Obligations to Third Parties ................................4 Section 103. Ethics... 5 a. Code of Ethics. 5 b. Interest of Members of or Delegates to Congress.. 6 c. Bonus or Commission ............6 d. Prohibition Against the Use of Federal Funds for Lobbying... ...............6 e. Employee Political Activity ..............6 f. False or Fraudulent Statements or Claims 6 Section 104. Project Budget ...............................6 Section 105. Accounting Records ...........................7 a. Project Accounts... ............7 b. Funds Received or Made Available for the Project...... ...................7 c. Documentation of Project Costs and Program Income.. .................7 d. Checks, Orders and Vouchers ..............7 Section 106. Record Retention......... ............7 a. Submission of Proceedings, Contracts and Other Documents ....................7 b. Audit and Inspection .....................8 Section 107. Payments............. ..............8 a. Request by the Recipient for Payment 8 b. Payment by the Government ................9 c. Allowable Costs 11 d. Disallowed Costs.. .......12 e. Bond Interest and Other FinancingCosts.l2 f. Requirement to Remit Interest 13 g. De-obligation of Funds.... ...........13 Section 108. Right of the Government to Terminate 13 Section 109. Project Completion, Audit, Settlement, and Close-Out.........................14 a. Project Completion ......................14 b. Audits..... •..........................14 c. Remittance of Excess Payments 14 d. Project Closeout......... . 14 Section 110. . Real Property, Equipment, and Supplies...... 14 a. Use of Property .........................15 i b. General Federal Requirements 15 c. Maintenance 15 d. Records.. 15 e. Transfer of Project Property 15 f. Withdrawn Property 16 g. Misused or Damaged Property 17 h. Obligations After Project Closeout...... 17 Section 111. Encumbrance of Project Property 17 Section 112. Relocation and Land Acquisition 18 Section 113. Flood Hazards 18 Section 114. Procurement.... 18 a. Federal Standards... 18 b. Exclusionary or Discriminatory Specifications 18 c. Award to Other Than the Lowest Bidder 18 d. Force Account 18 e. Capital Leases 18 f. Buy America........ 19 g. Cargo Preference --Use of United States-Flag Vessels...... 19 h. Preference for Recycled Products 19 i. Project Management Oversight 19 j. Bus Testing.. 20 k. Pre-Award and Post-Delivery Audit 20 1. Notification Requirement 20 m. Debarment and Suspension 20 n. Third Party Contract Disputes or Breaches ...........................20 Section 115. Patent Rights.... . .................21 Section 116. Rights in Data and Copyrights ...............21 Section 117. Civil Rights......... .............23 a. Equal Employment Opportunity 23 b. Disadvantaged Business Enterprise 24 c. Title VI of the Civil Rights Act of 1964.......... .....25 . d. Access Requirements for Individuals with Disabilities .....................26 Section 118. Construction Contracts 27 a. Nondiscrimination .......................27 b. Specifications ..........................29 c. Notice... .........................36 d. Contract Security ....................37 e. Insurance During Construction 38 f. Signs ...................................38 g. Safety Standards ........................38 h. Liquidated Damages ......................38 Section 119. Labor Provisions ............................38 a. Construction Contracts ..................38 b. Nonconstruction Contracts ........47 c. State and Local Government Employees.... 48 ii Section 120. Environmental, Resource Conservation, and Energy Requirements 48 a. Environmental Protection 49 b. Air Pollution 49 c. Use of Public Lands 49 d. Historic Preservation 49 e. Energy Conservation..... 50 f. Mitigation of Adverse Environmental Effects... 50 Section 121. Charter Service Operations 50 Section 122. School Bus Operations 51 Section 123. Private Enterprise 51 Section 124. Metric System 51 Section 125. Privacy 51 Section 126. Substance Abuse.. 53 Section 127. State Safety Oversight of Rail Fixed Guideway Public Systems 53 Section 128. Severability................................ 53 Sections 114.g, 117.b, 118.a, 118.b, 118.c, 119.a, and 119.b contain specific language that must be included in the Recipient's third party contracts. Although other sections of this Agreement may not contain specific language that must be included in third party contracts, many sections do contain requirements applicable to subrecipients and third party contractors. iii DEPARTMENT OF TRANSPORTATION FEDERAL TRANSIT ADMINISTRATION AGREEMENT PART II OF II - TERMS AND CONDITIONS Constituting part of the AGREEMENT providing for Federal financial assistance under the provisions of the Federal Transit Act, as amended, 49 U.S.C. app. 1601 et seq.; Title 23 U.S.C. (Highways); the National Capital Transportation Act of 1969, as amended; or the Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102-240, Dec. 18, 1991 Section 101. Definitions. As used in this Agreement: a. Agreement means any Grant Agreement or Cooperative Agreement. b. Application means the signed and dated proposal as may be amended for Federal financial assistance for the Project, together with all explanatory, supporting, and supplementary documents heretofore filed with and accepted or approved by the Government (FTA) by or on behalf of the Recipient. c. Approval. Authorization. Concurrence, Waiver means a conscious written act by an authorized official of the Government granting permission to the Recipient to perform or omit an action required pursuant to this Agreement, which action may not be performed or omitted without such permission. An approval, authorization, concurrence, or waiver permitting the performance or omission of a specific action does 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. d. Approved Project 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 Recipient is currently eligible, the specific items (including contingencies specified) for which the total may be spent, and the estimated cost of each of such items. e. Federal Transit Act, as amended, is the statutory designation of the former Urban Mass Transportation Act of 1964, as amended, 49 U.S.C. app. § 1601 note. Any reference in any law, map, regulation, document, paper, or other record Page 1 of the United States to the Urban Mass Transportation Act of 1964, as amended, shall be deemed a reference to the Federal Transit Act, as amended. f. Federal Transit Administration is the statutory designation of the former Urban Mass Transportation Administration, 49 U.S.C. app. § 1601 note. Any reference in any law, map, regulation, document, paper, or other record of the United States to the Urban Mass Transportation Administration shall be deemed a reference to the Federal Transit Administration. g. Federal Transit Administrator is the statutory designation for the Urban Mass Transportation Administrator, 49 U.S.C. app. § 1601 note. Any reference in any law, map, regulation, document, paper, or other record of the United States to the Urban Mass Transportation Administrator shall be deemed a reference to the Federal Transit Administrator. h. FTA is the acronym for the Federal Transit Administration of the U.S. Department of Transportation (U.S. DOT). FTA replaces the acronym "UMTA." i. FTA Directive includes FTA circulars, notices, or orders providing information about the FTA's programs, application processing procedures, and project management guidance. In addition to FTA directives, certain U.S. DOT directives also apply to the Project. j. Government means the United States of America and any executive department or agency thereof. k. Mass Transportation means transportation by bus, rail, or other conveyance, either publicly or privately owned, that provides general or special transportation service (but not school bus, charter or sightseeing service) to the public on a regular and continuing basis. The term "mass transportation" also includes "transit" and "public transportation." 1. Project means the task or set of tasks set forth in the Approved Project Budget which the Recipient carries out pursuant to this Agreement. In the case of financial assistance under Section 9, 16, or 18 of the Federal Transit Act, as amended, the term "Project" encompasses both "Program" and "each Project within the Program," as the context may require, to effectuate the particular requirements of this Agreement. m. Recipient means any entity that receives Federal assistance directly from the FTA for the accomplishment of the Project. The term "Grant Recipient" means "Grantee." Page 2 n. Secretary means the U.S. DOT Secretary or his or her duly authorized designee. o. Subrecipient means any entity that receives FTA assistance from an FTA recipient, rather than from the FTA directly. The term "subrecipient" also includes the term "subgrantee," but does not include "third party contractor." p. U.S. DOT is the acronym for the U.S. Department of Transportation, including its operating administrations. Section 102. Accomplishment of the Project. a. General Requirements. The Recipient agrees to carry out the Project in a sound, economical, and efficient manner, and in accordance with the provisions of this Agreement, the Application, Approved Project Budget, Project or Program schedules, and all applicable laws, regulations, PTA directives, and published policies. U.S. DOT regulations, "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments" (common grant management rule), 49 C.F.R. Part 18, apply to Projects with governmental bodies. Office and Management Budget (OMB) Circular A-110, Revised, "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Nonprofit Organizations," apply to Projects with institutions of higher education and private nonprofit organizations. The FTA also applies OMB Circular A-110 to grants and cooperative agreements with private for-profit organizations. b. Application of Federal State and Local Laws and Regulations. (1) Federal Laws and Regulations. The Recipient understands that Federal laws, regulations, policies, and related administrative practices applicable to this Agreement on the date the Agreement was executed may be modified from time to time. The Recipient agrees that the most recent of such Federal requirements will govern the administration of this Agreement at any particular time, except if there is sufficient evidence in the Agreement of a contrary intent. Such contrary intent might be evidenced by express language in Part I of this Agreement, or a letter signed by the Federal Transit Administrator the language of which modifies or otherwise conditions the text of a particular provision of Part II of this Agreement. Likewise, new Federal laws, regulations, policies and administrative practices may be established after the date the Agreement has been executed and may apply to this Agreement. To achieve compliance with changing Federal requirements, the Recipient agrees to Page 3 include in all sub-assistance agreements and third party contracts financed with Government (FTA) assistance specific notice that Federal requirements may change and the changed requirements will apply to the project as required. All limits or standards set forth in this Agreement to be observed in the performance of the Project are minimum requirements. (2) State or Territorial Law and Local Law. Except to the extent that a Federal statute or regulation pre-empts State or territorial law, nothing in the Agreement shall require the Recipient to observe or enforce compliance with any provision thereof, perform any other act, or do any other thing in contravention of any applicable State or territorial law; however, if any of the provisions of the Agreement violate any applicable State or territorial law, or if compliance with the provisions of the Agreement would require the Recipient to violate any applicable State or territorial law, the Recipient agrees to notify the Government (FTA) immediately in writing in order that the Government and the Recipient may make appropriate arrangements to proceed with the Project as soon as possible. c. Funds of the Recipient. Unless approved otherwise by the FTA, the Recipient agrees to complete all proceedings necessary to provide the local share of the Project costs at or before the time that such funds are needed to meet Project expenses. d. Changed Conditions of Performance (Including Litigation). The Recipient agrees to notify the Government (FTA) immediately of any change in local 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 Recipient agrees to notify the Government (FTA) immediately of any decision pertaining to the Recipient's conduct of litigation that may affect the Government's interests in the Project or the Government's administration or enforcement of applicable Federal laws or regulations. Before the Recipient may name the Government as a party to litigation for any reason, the Recipient agrees first to inform the Government; this proviso applies to any type of litigation whatsoever, in any forum. e. No Government Obligations to Third Parties. Absent the Government's express written consent, and notwithstanding any concurrence by the Government in or approval of the award of any contract of the Recipient (third party contract) or subcontract of the Recipient (third party subcontract) or the solicitation thereof, the Government shall not be subject to any obligations or liabilities to third party contractors or third party subcontractors or any other person not a party to Page 4 this Agreement in connection with the performance of this Project. Section 103. Ethics. a. Code of Ethics. The Recipient agrees to maintain a written code or standards of conduct that shall govern the performance of its officers, employees, board members, or agents engaged in the award and administration of contracts supported by Federal funds. The code or standards shall provide that the Recipient'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 subrecipients. The Recipient may set minimum rules where the financial interest is not substantial or the gift is an unsolicited item of nominal intrinsic value. As permitted by State or local law or regulations, such code or standards shall provide for penalties, sanctions, or other disciplinary actions for violations by the Recipient's officers, employees, board members, or agents, or by contractors or subrecipients or their agents. (1) Personal Conflict of Interest. The Recipient's code or standards must provide that no employee, officer, board member, or agent of the Recipient may participate in the selection, award, or administration of a contract supported by Federal funds if a real or apparent conflict of interest 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: (a) The employee, officer, board member, or agent; (b) Any member of his or her immediate family; (c) His or her partner; or (d) An organization that employs, or is about to employ, any of the above. (2) Organizational Conflicts of Interest. The Recipient's code or standards of conduct must include procedures for identifying and preventing real and apparent organizational conflicts of interests. An organizational conflict of interest exists when the nature of the work to be performed under a proposed third party contract, may, without some restrictions on future activities, result in an unfair competitive advantage to the contractor or impair the contractor's objectivity in performing the contract work. Page 5 b. 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. c. Bonus or Commission. The Recipient warrants that it has not paid, and agrees not to pay, any bonus or commission for the purpose of obtaining approval of its application for the financial assistance hereunder. d. Prohibition Against the Use of Federal Funds for Lobbying. The Recipient agrees to comply with the provisions of 31 U.S.C. § 1352, which prohibit the use of Federal funds for lobbying any official or employee of any Federal agency, or member or employee of Congress; and requires the Recipient to disclose any lobbying of any official or employee of any Federal agency, or member or employee of Congress in connection with Federal assistance. The Recipient agrees to comply with U.S. DOT regulations, "New Restrictions on Lobbying," 49 C.F.R. Part 20. e. Employee Political Activity. The terms of the "Hatch Act," 5 U.S.C. 1501 through 1508, and Office of Personnel Management regulations, "Political Activity of State or Local Officers or Employees," 5 C.F.R. Part 151, apply to State and local agencies and their officers and employees to the extent covered by the statute and regulations. The "Hatch Act" restricts the political activity of an individual principally employed by a State or local executive agency in connection with a program financed in whole or in part by a Federal loan, grant, or cooperative agreement. However, the "Hatch Act" does not apply to a nonsupervisory employee of a transit system (or of any other agency or entity performing related functions) receiving FTA assistance to whom the "Hatch Act" is otherwise inapplicable. f. False or Fraudulent Statements or Claims. The Recipient 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 impose on the Recipient the penalties of 18 U.S.C. § 1001, 31 U.S.C. 3801 gI g=., and 49 U.S.C. app. § 1607a(h), as the Government may deem appropriate. The terms of U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to this Project. Section 104. Project Budget. The Recipient agrees to prepare and maintain a Project Budget. The Recipient agrees to incur obligations against Page 6 and make disbursements of Project funds only as authorized in the latest Approved Project Budget. The Approved Project Budget may be revised to the extent permitted by and in conformance with applicable Government requirements. Section 105. Accountina R a. Project Accounts. The Recipient agrees to establish and maintain for the Project either a separate set of accounts or accounts within the framework of an established accounting system, in a manner consistent with 49 C.F.R. § 18.20, or OMB Circular A-110, as amended, whichever is applicable. b. Funds Received or Made Available for the Project. Consistent with the provisions of 49 C.F.R. § 18.21, or OMB Circular A-110, as amended, whichever is applicable, the Recipient agrees to record in the Project Account, and deposit in a financial institution all Project payments received by it from the Government pursuant to this Agreement and all other funds provided for, accruing to, or otherwise received on account of the Project (Project Funds). The Recipient is encouraged to use financial institutions owned at least 50 percent by minority group members. c. Documentation of Project Costs and Program Income. All costs charged to the Project, including any approved services contributed by the Recipient or others, shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers describing in detail the nature and propriety of the charges. The Recipient also agrees to maintain accurate records of all Program Income derived from Project implementation; this requirement, however, does not apply to income of the Recipient that is determined by the Government to be private. d. Checks Orders and Vouchers. The Recipient agrees to refrain from drawing checks or orders for goods or services to be charged against the Project Account until it has on file in its office a properly signed voucher describing in proper detail the purpose of the expenditure. The Recipient agrees that all checks, payrolls, invoices, contracts, vouchers, orders, or other accounting documents pertaining in whole or in part to the Project shall be clearly identified, readily accessible, and, to the extent feasible, kept separate from documents not pertaining to the Project. Section 106. Record Retention. a. Submission of Proceedings Contracts and Other Documents. During the course of the Project and for three years Page 7 thereafter, the Recipient agrees to retain intact and to provide any data, documents, reports, records, contracts, and supporting materials relating to the Project as the Government may require. Reporting and record-keeping requirements for governmental recipients are set forth in 49 C.F.R. Part 18. Reporting and record-keeping requirements for private non-profit and for-profit recipients, are set forth in OMB Circular A-110. Project closeout does not alter these requirements. b. Audit and Inspection. (1) General Audit Rerauirements. A Recipient that is a State, local government or Indian tribal government agrees to comply with the audit requirements of 49 C.F.R. § 18.26 and OMB Circular A-128, and any revision or supplement thereto. A Recipient that is an institution of higher education or nonprofit organization agrees to comply with the audit requirements of OMB Circular A-110 and OMB Circular A-133, and any revision or supplement thereto. A Recipient that is a private for-profit organization agrees to comply with the audit requirements of OMB Circular A-133. The Government may waive the OMB Circular A-128 audit requirement or substitute a requirement for a project audit performed in accordance with the Comptroller General's standards. The Recipient agrees to obtain any other audits required by the Government. Project closeout will not alter the Recipient's audit responsibilities. Audit costs for Project administration and management are allowable under this Project to the extent authorized by OMB Circular A-87, Revised; OMB Circular A-21, Revised; or OMB Circular A-122, Revised. (2) Inspection by Federal Officials. The Recipient agrees to permit the Secretary and the Comptroller General of the United States, or their authorized representative, to inspect all Project work, materials, payrolls, and other data, and to audit the books, records, and accounts of the Recipient and its contractors pertaining to the Project. The Recipient agrees to require each third party contractor whose contract award is not based on competitive bidding procedures as defined by the Secretary to permit the Secretary of Transportation and the Comptroller General of the United States, or their duly authorized representative, to inspect all work, materials, payrolls, and other data and records involving that contract, and to audit the books, records, and accounts involving that contract as it affects the Project. Section 107. Payments. a. Request by the Recipient for Payment. The Recipient's request for payment of the Federal share of allowable costs Page 8 will be honored by the Government as set forth in this Section. Each payment made to the Recipient must comply with Department of the Treasury regulations, "Rules and Procedures for Funds Transfers," 31 C.F.R. Part 205. To receive a Federal assistance payment, the Recipient must: (1) Have demonstrated or certified that it will provide local funds adequate, when combined with Federal payments, to cover all costs to be incurred under the Project. A Recipient required by Federal statute or this Agreement to provide a local share agrees: (a) to refrain from requesting or obtaining Federal funds in excess of the amount justified by the local share that has been provided; and (b) to refrain from taking any action that would cause the proportion of Federal funds made available to the Project at any time to exceed the percentage authorized under the Agreement. A Recipient may defer provision of the local share only to the extent expressly permitted by the Government. (2) Have submitted to the Government (FTA) all financial and progress reports required to date under this Agreement; and (3) Have identified the source(s) of financial assistance provided under this Project or Program from which the payment is to be derived. b. Payment by the Government. The Government (FTA) makes all payments by the Automated Clearing House (ACH) method of payment, regardless of the money amount involved. (1) Electronic Clearing House Operation (ECHO) Payments. If payment is made under the Electronic Clearinghouse Operation (ECHO), by means of an ECHO Control Number (ECN), the Recipient agrees to comply with the following ECHO requirements pursuant to U.S. Department of the Treasury Circular 1075, Part 205, "Withdrawal of Cash from the Treasury for Advances Under Federal Grants and Other Programs," and as established by the "Guidelines for Disbursements" set forth in the Government (FTA) ECHO System Operations Manual: (a) The Recipient may initiate cash drawdowns only when actually needed for immediate disbursement required for Project purposes. Unless provided otherwise by Federal law or regulation, the Recipient agrees to expend all Federal funds obtained under the Project for Project purposes no later than three (3) days after receipt of those funds. Failure to expend those Federal funds within three (3) days Page 9 of their receipt or to return the funds to the Government within a reasonable period, the failure by the Recipient to establish procedures that will minimize the time elapsing between cash advances and the disbursement shall cause the Government to revoke or temporarily suspend the Recipient's ECHO Control Number and the Recipient's access to the ECHO System. In addition, a Recipient's failure to adhere to these requirements may result in other remedies authorized by Federal law or regulation. (b) The Recipient agrees to report its cash disbursements and balances in a timely manner as required by the Government. (c) The Recipient agrees to provide for control and accountability for all Project funds consistent with Federal requirements and procedures for use of ECHO system. (d) The Recipient may not draw down funds for a project in an amount that would exceed the sum obligated by the Government or the current available balance for that Project. (e) The Recipient agrees to limit drawdowns to eligible Project costs and to refrain from drawing down Federal funds before they are needed for disbursement. (f) The Recipient agrees to adhere to and impose on its subrecipients all applicable requirements of Part II, Subsections 107.b(1)(a), (b), (c), (d), and (e) of this Agreement. (g) If the Recipient fails to adhere to the requirements of Part II, Subsections 107.b(i)(a), (b), (c), (d), or (e) of this Agreement, the Government may revoke the portion of the Recipient's funds that has not been obligated. (2) Requisition. If the requisition method of payment is used, the Recipient agrees to: (a) Complete and submit Standard Form 3881, "Payment Information Form - ACH Payment Vendor Payment System," to the PTA's Accounting Division. (b) Complete and submit Standard Form 270, "Request for Advance or Reimbursement," to the designated FTA office. Upon receipt of a payment request and adequate accompanying information, the Government will authorize payment by direct deposit if the Recipient is complying with its obligations Page 10 under this Agreement, has satisfied the Government that it needs the requested Federal funds during the requisition period, and is making adequate and timely progress toward Project completion. If all these circumstances are present, the Government may reimburse apparent allowable costs incurred (or to be incurred during the requisition period) by the Recipient up to the maximum amount of Federal funds payable through the fiscal year in which the requisition is submitted, as stated in the Project Budget. c. Allowable Costs. The Recipient's expenditures will be reimbursed if they meet all requirements set forth below: (1) Conform with the Project Description and the Approved Project Budget and all other terms of this Agreement; (2) Be necessary in order to accomplish the Project; (3) Be reasonable for the goods or services purchased; (4) Be actual net costs to the Recipient (i.e., the price paid minus any refunds, rebates, or other items of value received by the Recipient 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 to the contrary is received; (6) Unless permitted otherwise by Federal statute or regulation, conform with Federal guidelines or regulations and Federal cost principles as set forth below: (a) For Recipients that are governmental organizations, the standards of OMB Circular A-87, Revised, "Cost Principles for State and Local Governments" apply; (b) For Recipients that are institutions of higher education, the standards of OMB Circular A-21, Revised, "Cost Principles for Educational Institutions" apply; (c) For Recipients that are private nonprofit organizations, the standards of OMB Circular A-122, Revised, "Cost Principles for Nonprofit Organizations" apply; (d) For Recipients that are for-profit organizations, the standards of the Federal Acquisition Regulation, 48 C.F.R. Chapter I, Subpart 31.2, "Contracts with Commercial Organizations" apply; Page 11 (7) Be satisfactorily documented; and (8) Be treated uniformly and consistently under accounting principles and procedures approved and prescribed by the Government for the Recipient; and those approved or prescribed by the Recipient for its contractors. d. Disallowed Costs. In determining the amount of Federal assistance the FTA will provide, the FTA will exclude: (1) Any Project costs incurred by the Recipient before the Obligation Date of this Agreement or Amendment thereof, whichever is later, unless otherwise permitted by Federal law or regulation, or unless an authorized representative of the Government states in writing to the contrary; (2) Any costs incurred by the Recipient that are not included in the latest Approved Project Budget; and (3) Any costs attributable to goods or services received under a contract or other arrangement that is required to be, but has not been, concurred in or approved in writing by the Government. The Recipient agrees that reimbursement of any cost under Part II, Section 107 of this Agreement does not constitute a final Government decision about the allowability of that cost and does not constitute a waiver of any violation by the Recipient of the terms of this Agreement. The Recipient understands that the Government will not make a final determination about the allowability of any cost until an audit of the Project has been completed. If the Government determines that the Recipient is not entitled to receive any part of the Federal funds requested, the Government will notify the Recipient stating the reasons therefor. Project closeout will not alter the Recipient's obligation to return any funds due to the Government as a result of later refunds, corrections, or other transactions. Nor will Project closeout alter the Government's right to disallow costs and recover funds on the basis of a later audit or other review. Unless prohibited by law, the Government may offset any Federal assistance funds to be made available under this Project as needed to satisfy any outstanding monetary claims that the Government may have against the Recipient. Exceptions pertaining to disallowed costs are set forth in FTA directives or in other written Federal guidance. e. Bond Interest and Other Financing Costs. To the extent permitted in writing by the PTA, bond interest and other financing costs are allowable. Page 12 f. Requirement to Remit Interest. The Recipient agrees that: (1) Any interest earned by the Recipient on Federal funds must be remitted to the Government, except as provided by 31 U.S.C. § 6503, or the Indian Self-Determination Act, 25 U.S.C. § 450 gt sea., and any regulations thereunder that may be issued by the U.S. Secretary of the Treasury. (2) Irrespective of whether the Recipient has deposited funds in an interest-bearing account, the Recipient agrees to pay to the Government interest on any Federal funds that the Recipient has drawn down and failed to spend for eligible Project activities. Unless waived by the Government, interest will be calculated at rates imposed by the U.S. Secretary of the Treasury beginning on the fourth day after the funds were deposited in the Recipient's bank or other financial depository. This requirement does not apply to any Recipient that is a state, state instrumentality, or Indian Tribal Government, except as permitted by regulations that may be issued by the U.S. Secretary of the Treasury. (3) Upon notice by the Government to the Recipient of specific amounts due, the Recipient agrees to promptly remit to the Government any excess payment of amounts or disallowed costs, including any interest due thereon. g. De-obligation of Funds. The Government reserves the right to de-obligate unspent Federal funds prior to Project closeout. Section 108. Right of the Government to Terminate. Upon written notice, the Recipient agrees that the Government may suspend or terminate all or part of the financial assistance provided herein if the Recipient has violated the terms of this Agreement, or if the Government determines that the purposes of the statute under which the Project is authorized would not be adequately served by continuation of Federal financial assistance for the Project. Any failure to make reasonable progress on the Project or other violation of the Agreement that significantly endangers substantial performance of the Project shall provide sufficient grounds for the Government to terminate this Agreement. In general, termination of any financial assistance under this Agreement will not invalidate obligations properly incurred by the Recipient and concurred in by the Government before the termination date, to the extent those obligations cannot be cancelled. However, if the Government determines Page 13 that the Recipient has willfully misused Federal assistance funds by failing to make adequate progress, failing to make reasonable use of the Project real property, facilities, or equipment, or failing to adhere to the terms of this Agreement,, the Government reserves the right to require the Recipient to refund the entire amount of Federal funds provided under this Agreement or any lesser amount as may be determined by the Government. Expiration of any Project Time Period established for this Project does not, by itself, constitute an expiration or termination of this Agreement. Section 109. Project Completion. Audit. Settlement, and Closeout. a. Project Completion. Within 90 days of the Project completion date or termination by the Government, the Recipient agrees to submit a final Financial Status Report (Standard Form 269), a certification or summary of Project expenses, and third party audit reports, as applicable. b. Audits. Each Governmental Recipient the audits required by 49 C.F.R. § 18.26 A-128 or any revision or supplement ther, Nongovernmental Recipient covered agrees audits required by OMB Circular A-133 or supplement thereto. agrees to undertake and OMB Circular eto. Each to undertake the any revision or c. Remittance of Excess Payments. If the Government has made payments to the Recipient in excess of the total amount of the Federal assistance due, the Recipient agrees to promptly remit that excess and interest as may be required by Part II, Subsections 107.b and 107.f of this Agreement. d. Project Closeout. Project closeout occurs when the Government notifies the Recipient and forwards the final Federal assistance payment or when the Government acknowledges the Recipient's remittance of the proper refund. Project closeout shall not invalidate any continuing obligations imposed on the Recipient by this Agreement or by the Government's final notification or acknowledgment. Section 110. Real Property, Eguipment. and Supplies. Unless otherwise approved by the Federal Transit Administrator, the following conditions apply to real property, equipment, and supplies financed under this Agreement: Page 14 a. Use of Property. The Recipient agrees that Project real property, equipment, and supplies shall be used for the provision of transit service for the duration of their useful life, as determined by the FTA. Should the Recipient unreasonably delay or fail to use Project real property, equipment, or supplies during their useful life, the Recipient agrees that the FTA may require the Recipient to return the entire amount of the Federal assistance expended on that real property, equipment, or supplies. The Recipient further agrees to notify the FTA immediately when any Project real property or equipment is withdrawn from use in transit service or when real property or equipment is used in a manner substantially different from the representations made by the Recipient in its Application or the text of the Project Description. b. General Federal Requirements. A Recipient that is a governmental entity agrees to comply with the property management standards of 49 C.F.R. 18.31, 18.32, and 18.33, including any amendments thereto, and other applicable guidelines or regulations that the Government may issue. A Recipient that is not a governmental entity agrees to comply with OMs Circular A-110, Attachment N, including any amendments thereto, and other applicable 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 OMs Circular A-110, Attachment N must be specifically approved by the Government. c. Maintenance. The Recipient agrees to maintain the Project real property and equipment in good operating order, and in accordance with any guidelines, directives, or regulations that the FTA may issue. d. Records. The Recipient agrees to keep satisfactory records with regard to the use of the real property, equipment, and supplies, and submit to the Government upon request such information as may be required to assure compliance with this Section of this Agreement e. Transfer of Project Property. (1) Recipient Reauest. The Recipient may transfer assets financed under the Federal Transit Act, as amended, to a public body to be used for any public purpose with no further obligation to the Government, provided that transfer is authorized by the Federal Transit Administrator and meets the requirements of Section 12(k) of the Federal Transit Act, as amended, 49 U.S.C. app. § 1608(k). (2) Government Direction. The Recipient agrees that the Government may require the Recipient to transfer title to Page 15 any real property, equipment, or supplies financed with Federal assistance made available by this Agreement as permitted by 49 C.F.R. § 18.32(g) or OMB Circular A-110, Attachment N, whichever may be applicable. The Recipient also agrees that the Government may direct the disposition of real property or equipment financed with Federal assistance funds made available under this Agreement, as set forth by 49 C.F.R. H 18.31 and 18.32 or OMs Circular A-110, Attachment N, whichever may be applicable. f. Withdrawn Property. If any Project real property, equipment, or supplies are not used in transit service for the duration of their useful life as determined by the FTA, whether by planned withdrawal, misuse or casualty loss, the Recipient agrees to notify the FTA immediately. (1) Federal Interest in Property. Unless otherwise approved by the Government, the Recipient agrees to remit to the Government the Federal interest in the fair market value, if any, of the real property, equipment, or supplies whose aggregate value exceeds $5,000. The amount of that Federal interest shall be determined on the basis of the ratio of the Federal assistance awarded by the Government for the Project to the actual cost of the Project. (2) Fair Market Value. The following requirements apply to the calculation of fair market value: (a) Equipment and Supplies. Unless otherwise approved in writing by the FTA, the fair market value of equipment and supplies will be the value of that property at the time immediately before the occurrence that prompted the withdrawal of the equipment or supplies from transit use. The fair market value shall be calculated on straight line depreciation of the equipment or supplies, based on a useful life approved by the FTA, irrespective of the reason for withdrawal of equipment or supplies from transit use. The fair market value of equipment or supplies lost or damaged by casualty or fire will be calculated on the basis of the condition of the equipment or supplies immediately before the casualty or fire, irrespective of the extent of insurance coverage. (b) Real Property. The fair market value of real property 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. (c) Exceptional Circumstances. The Government, however, reserves the right to require another method of Page 16 valuation to be used if determined to be in the best interests of the Government. In unusual circumstances, the Recipient 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 Government may consider any action taken, omission made, or unfortunate occurrence suffered by the Recipient with respect to the preservation or conservation of the value of the real property, equipment, or supplies that, for any reason, have been withdrawn from service. g. Misused or Damaged Property. If any damage to Project real property, equipment, or supplies results from abuse or misuse that has taken place with the Recipient's knowledge and consent, the Recipient agrees that the Government may require the Recipient to restore that real property or equipment to its original condition or refund the value of the Federal interest in the damaged property. h. Obligations After Project Closeout. A Recipient that is a governmental entity agrees that project closeout will not alter its property management obligations set forth in Section 110 of this Agreement and 49 C.F.R. 18.31 and 18.32. A Recipient that is an institution of higher education or a private organization agrees that project closeout will not alter its property management obligations set forth in Section 110 of this Agreement and OMB Circular A-110, Attachment N. Section 111. Encumbrance of Project Property. a. Unless expressly authorized in writing by the Government, the Recipient agrees to refrain from: (1) Executing any transfer of title, lease, lien, pledge, mortgage, encumbrance, contract, grant anticipation note, alienation, or other obligation that in any way would affect the Federal interest in any Project real property or equipment; or (2) Obligating itself in any manner to any third party with respect to Project real property or equipment. b. The Recipient agrees to refrain from taking any action or acting in a manner that would adversely affect the Federal interest or impair the Recipient's continuing control over the use of Project real property or equipment. Page 17 Section 112. Relocation and Land Acgpisition. The Recipient agrees to comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.C. 4601 gt 1=.; and U.S. DOT regulations, "Uniform Relocation and Real Property Acquisition for Federal and Federally Assisted Programs," 49 C.F.R. Part 24. Section 113. Flood Hazards. The Recipient agrees to comply with the flood insurance purchase requirements of Section 102(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. § 4012a(a), with respect to any construction or acquisition Project. Section 114. Procurement a. Federal Standards. The Recipient agrees to comply with the Procurement Standards requirements set forth at 49 C.F.R. § 18.36 or OMB Circular A-110, Attachment 0, whichever may be applicable; and with applicable supplementary directives or regulations including PTA Circular 4220.1E and any changes or revisions thereto; and other applicable guidance that the FTA or the U.S. DOT may issue. If determined necessary for proper Project administration, the FTA reserves the right to review the Recipient's technical specifications and requirements. b. Exclusionary or Discriminatory Specifications. The Recipient further agrees that, notwithstanding the Buy America requirements of Part II, Subsection 114.f of this Agreement, no Federal funds shall be used to support procurements utilizing exclusionary or discriminatory specifications. c. Award to Other Than the Lowest Bidder. In accordance with Section 12(1)(3) of the Federal Transit Act, as amended, 49 U.S.C. app. § 1608(1)(3), a Recipient may award a third party contract to other than the lowest bidder in connection with a procurement, when such award furthers objectives that are consistent with the applicable regulations guidance that the FTA may issue. d. Force Account. The FTA reserves the right to determine the extent of its participation in force account costs. e. Capital Leases. As may be applicable, the Recipient agrees to comply with FTA regulations, "Capital Leases," 49 C.F.R. Part 639, and any revision thereto. Page 18 f. Buy America. Each third party contract utilizing FTA assistance must conform with Section 165 of the Surface Transportation Assistance Act of 1982, as amended by Section 337 of the Surface Transportation and Uniform Relocation Assistance Act of 1987, and Section 1048 of the Intermodal Surface Transportation Efficiency Act of 1991, and FTA regulations, "Buy America Requirements - Surface Transportation Assistance Act of 1982," 49 C.F.R. Part 661 and applicable revisions thereto. g. Cargo Preference Use of United States-Flag Vessels. Pursuant to Maritime Administration regulations, "Cargo Preference U.S.-Flag Vessels," 46 C.F.R. Part 381, the Recipient shall insert the following clauses in contracts let by the Recipient in which equipment, materials or commodities may be transported by ocean vessel in carrying out the Project: AS REQUIRED BY 46 C.F.R. PART 381, THE CONTRACTOR AGREES (1) TO UTILIZE PRIVATELY OWNED UNITED STATES-FLAG COMMERCIAL VESSELS TO SHIP AT LEAST 50 PERCENT OF THE GROSS TONNAGE (COMPUTED SEPARATELY FOR DRY BULK CARRIERS, DRY CARGO LINERS, AND TANKERS) INVOLVED, WHENEVER SHIPPING ANY EQUIPMENT, MATERIALS, OR COMMODITIES PURSUANT TO THIS CONTRACT TO THE EXTENT SUCH VESSELS ARE AVAILABLE AT FAIR AND REASONABLE RATES FOR UNITED STATES-FLAG COMMERCIAL VESSELS. (2) TO FURNISH WITHIN 20 DAYS FOLLOWING THE DATE OF LOADING FOR SHIPMENTS ORIGINATING WITHIN THE UNITED STATES, OR WITHIN 30 WORKING DAYS FOLLOWING THE DATE OF LOADING FOR SHIPMENT ORIGINATING OUTSIDE THE UNITED STATES, A LEGIBLE COPY OF A RATED, "ON-BOARD" COMMERCIAL OCEAN BILL-OF-LADING IN ENGLISH FOR EACH SHIPMENT OF CARGO DESCRIBED IN PARAGRAPH (1) ABOVE TO THE RECIPIENT (THROUGH THE PRIME CONTRACTOR IN THE CASE OF SUBCONTRACTOR BILLS-OF-LADING) AND TO THE DIVISION OF NATIONAL CARGO, OFFICE OF MARKET DEVELOPMENT, MARITIME ADMINISTRATION, 400 SEVENTH STREET, S.W., WASHINGTON, D.C. 20590, MARKED WITH APPROPRIATE IDENTIFICATION OF THE PROJECT. (3) TO INSERT THE SUBSTANCE OF THE PROVISIONS OF THIS CLAUSE IN ALL SUBCONTRACTS ISSUED PURSUANT TO THIS CONTRACT. h. Preference for Recycled Products. The Recipient agrees to give preference to the purchase of recycled products for use in this Project pursuant to the various Environmental Protection Agency (EPA) guidelines contained in 40 C.F.R. Parts 247-254. i. Project Management Oversight. To the extent applicable, the Recipient agrees to comply with FTA regulations, "Project Page 19 Management Oversight," 49 C.F.R. Part 633, and any revision thereto, with respect to a major capital project. j. Bus Testing. To the extent applicable, the Recipient agrees to comply with FTA regulations, "Bus Testing," 49 C.F.R. Part 665, and any revision thereto. k. Pre-Award and Post-Delivery Audit. To the extent applicable, the Recipient agrees to comply with FTA regulations, "Pre-Award and Post-Delivery Audits of Rolling Stock Purchases," 49 C.F.R. Part 663, and any revision thereto. 1. Notification Recauirement. With respect to any procurement for goods and services (including construction services) having an aggregate value of $500,000 or more, the Recipient agrees to: (1) specify in any announcement of the awarding of the contract for.such goods or services the amount of Federal funds that will be used to finance the acquisition; and (2) express the said amount as a percentage of the total costs of the planned acquisition. m. Debarment and Suspension. The Recipient agrees to obtain certifications on debarment and suspension from its third party contractors and subrecipients and otherwise comply with U.S. DOT regulations, "Governmentwide Debarment and Suspension (Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace (Grants)," 49 C.F.R. Part 29. n. Third Party Contract Disputes or Breaches. (1) General. The Government has a vested interest in the settlement of any dispute, default, or breach involving any federally-assisted third party contract. Therefore the Recipient agrees to pursue all legal rights available under any third party contract. The Government reserves the right to concur in any compromise or settlement of any claim by the Recipient involving any third party contract. (2) Notification Reauirement. The Recipient agrees to notify the Government of any current or prospective major dispute, breach, or litigation pertaining to any third party contract. If the Recipient seeks to name the Government as a party to litigation for any reason, the Recipient agrees first to inform the Government before doing so; this proviso applies to any type of litigation whatsoever, in any forum. (3) Federal Interest in Recovery. 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. If the third party contract at issue contains a liquidated damages Page 20 provision, the Recipient agrees to credit any liquidated damages recovered to the Project account unless the Government permits otherwise. (4) Alternative Dispute Resolution. The Government encourages the Recipient to use alternative dispute resolution, as may be appropriate. Section 115. Patent Rights. a. If any invention, improvement, or discovery of the Recipient or any of its third party contractors is conceived or first actually reduced to practice in the course of or under this Project, and that invention, improvement, or discovery is patentable under the laws of the United States of America or any foreign country, the Recipient agrees to notify the FTA immediately and provide a detailed report. The rights and responsibilities of the Recipient, third party contractors 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. b. The Recipient agrees to include the requirements of Part II, Subsection 115.a of this Agreement in its third party contracts for planning, research, development, or demonstration under this Project. Section 116. Rights in Data and Copyrights. a. The term "subject data" used in this Section means recorded information, whether or not copyrighted, that is delivered or specified to be delivered under this Agreement. The term includes graphic or pictorial delineations in media such as drawings or photographs; text in specifications or related performance or design-type documents; machine forms such as punched cards, magnetic tape, or computer memory printouts; and information retained in computer memory. Examples include, but are not limited to: computer software, engineering drawings and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identifications, and related information. The term does not include financial reports, cost analyses, and similar information incidental to Project administration. b. The following restrictions apply to all subject data first produced in the performance of this Agreement: (1) Except for its own internal use, the Recipient may not publish or reproduce such data in whole or in part, or in Page 21 any manner or form, nor may the Recipient authorize others to do so, without the written consent of 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. § 18.34, the Government reserves a royalty-free, non-exclusive and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for Federal Government purposes: (a) Any work developed under a grant, cooperative agreement, sub-grant, sub-agreement, or third party contract, irrespective of whether or not a copyright has been obtained; and (b) Any rights of copyright to which a Recipient, subrecipient, or a third party contractor purchases ownership with Federal assistance. c. When the FTA provides assistance to a Recipient for a Project involving planning, research, development, or a demonstration, it is generally the FTA's intent to increase the body of mass transit knowledge, rather than to limit the benefits of the Project to those parties that have participated therein. Therefore, unless the FTA determines otherwise, the Recipient of FTA assistance to support planning, research, development, or a demonstration financed under the Federal Transit Act, as amended, understands and agrees that, in addition to the rights set forth in Part II, Subsection 116.b(2) of this Agreement, the FTA may make available to any FTA recipient, subrecipient, third party contractor, or third party subcontractor, either the FTA'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. In the event that such a 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 Part II, Subsection 116.a of this Agreement and shall be delivered as the Government may direct. This subsection of Part II of the Agreement, however, does not apply to adaptations of automatic data processing equipment or programs for the Recipient's use which costs are financed with capital funds (Section 3, 90 16, 18 of the Federal Transit Act, as amended, or Title 23 funds). d. Unless prohibited by State law, the Recipient agrees to 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 Page 22 and expenses, resulting from any willful or intentional violation by the Recipient of proprietary rights, copyrights, or right of privacy, arising out of the publication, translation, reproduction, delivery, use, or disposition of any data furnished under this Agreement. The Recipient shall not be required to indemnify the Government for any such liability arising out of the wrongful acts of employees or agents of the Government. e. Nothing contained in this Section on rights in data shall imply a license to the Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Government under any patent. f. The requirements of Part II, Subsections 116.b, 116.c and 116.d of this Agreement do not apply to material furnished to the Recipient by the Government and incorporated in the work carried out under the Agreement; provided that such incorporated material is identified by the Recipient at the time of delivery of such work. g. Unless the FTA determines otherwise, the Recipient agrees to include the requirements of Part II, Subsections 116.a through 116.f of this Agreement in its third party contracts for planning, research, development, or demonstration under this Project. Section 117. Civil Rights. a. EAual Employment Opportunity. The following requirements apply to the Project: (1) In implementing the Project, the Recipient may not discriminate against any employee or applicant for employment because of race, color, creed, sex, disability, age, or national origin. The Recipient agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, sex, disability, 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 Recipient shall insert the foregoing provision (modified only to show the particular contractual relationship) in all its third party contracts for Project implementation, except contracts for standard commercial supplies or raw materials and construction contracts, and shall require all such contractors to insert a similar provision in all Page 23 subcontracts, except subcontracts for standard commercial supplies or raw materials. (2) If, as a condition of assistance, the Recipient has submitted and the Government has approved, an equal employment opportunity program that the Recipient 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_ employment opportunity program shall be treated as a Recipient of its failure to carry out the approved program, the Government will impose such remedies as it may deem appropriate, which remedies may include termination of financial assistance as set forth in Part II, Section 108 of this Agreement or other measures that may affect the ability of the Recipient to obtain future financial assistance under the Federal Transit Act, as amended; Title 23, United States Code (Highways), or the Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. 102-240, Dec. 18, 1991. b. Disadvantaged Business Enterprise. The Recipient agrees to facilitate participation of disadvantaged business enterprises (DBE) as follows: (1) The Recipient agrees to comply with current U.S. DOT regulations at 49 C.F.R. Part 23, including any amendments that may be made to those regulations during the term of this Agreement. (2) The Recipient agrees that it shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any U.S. DOT-assisted contract. The Recipient agrees to take all necessary and reasonable steps under 49 C.F.R. Part 23 to ensure that eligible DBEs have the maximum feasible opportunity to participate in U.S. DOT-assisted contracts. The Recipient's DBE program, if required by 49 C.F.R. Part 23 and as approved by the U.S. DOT, is incorporated by reference in this Agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this Agreement. Upon notification to the Recipient of its failure to carry out its approved program, the U.S. DOT may impose sanctions as provided for under 49 C.F.R. Part 23. (3) The Recipient agrees to include the following clause in all agreements between the Recipient and subrecipients and in all third party contracts assisted by the Government (PTA) between the Recipient or subrecipients and third party contractors: Page 24 THE (CONTRACTOR, SUBRECIPIENT, OR SUBCONTRACTOR) SHALL NOT DISCRIMINATE ON THE BASIS OF RACE, COLOR, NATIONAL ORIGIN, OR SEX IN THE PERFORMANCE OF THIS (CONTRACT OR AGREEMENT). THE REQUIREMENTS OF 49 C.F.R. PART 23 AND THE RECIPIENT'S U.S. DOT-APPROVED DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM (WHERE REQUIRED) ARE INCORPORATED IN THIS (CONTRACT OR AGREEMENT) BY REFERENCE. FAILURE BY THE (CONTRACTOR, SUBRECIPIENT, OR SUBCONTRACTOR) TO CARRY OUT THESE REQUIREMENTS IS A MATERIAL BREACH OF THE (CONTRACT OR AGREEMENT), WHICH MAY RESULT IN THE TERMINATION OF THIS (CONTRACT OR AGREEMENT) OR SUCH OTHER REMEDY AS THE RECIPIENT DEEMS APPROPRIATE. (4) The Recipient agrees to treat lessees as follows: (a) The Recipient agrees not to exclude DBE's from participation in business opportunities by entering into long-term, exclusive agreements with non-DBE's for the operation of major transportation-related activities for the provision of goods and services to the facility or to the public on the facility. (b) A Recipient required to submit an affirmative action program under 49 C.F.R. Part 23 that has business opportunities for lessees shall submit for approval to the U.S. DOT overall goals for the participation as lessees of firms owned and controlled by DBE's. These goals shall be for a specified period of time and shall be based on the factors listed in 49 C.F.R. Part 23. The Recipient agrees to review these goals at least annually and whenever they expire, analyzing projected versus actual DBE participation during the period covered by the review and any changes in factual circumstances affecting the selection of goals. Following each review, the Recipient agrees to submit new overall goals to the U.S. DOT for approval. A Recipient that fails to meet its goals for DBE lessees agrees to demonstrate to the Government in writing that it made reasonable efforts to meet the goals. (c) Except as provided in this Section, the Recipient agrees to include lessees in affirmative action programs. The requirements of 49 C.F.R. Part 23, do not apply to lessees, except for the requirement that lessees avoid discrimination against DBE's. c. Title VI of the Civil Rights Act of 1964. The Recipient agrees to comply with, and assure the compliance by its third party contractors and subcontractors under this Project, with all requirements of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; U.S. DOT regulations, "Nondiscrimination in Federally-Assisted Programs of the Page 25 Department of Transportation Effectuation of Title VI of the Civil Rights Act," 49 C.F.R. Part 21. d. Access Requirements for Individuals with Disabilities. The Recipient agrees to comply with, and assure that any subrecipient, or third party contractor under this Project complies with all applicable requirements of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 = seg. and 49 U.S.C. § 322; Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; Section 16 of the Federal Transit Act, as amended, 49 U.S.C. app. § 1612; and the following regulations and any amendments thereto: (1) U.S. DOT regulations, "Transportation Services for Individuals with Disabilities (ADA)," 49 C.F.R. Part 37; (2) U.S. DOT regulations, "Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefitting from Federal Financial Assistance," 49 C.F.R. Part 27; (3) U.S. DOT regulations, "Americans With Disabilities (ADA) Accessibility Specifications for Transportation Vehicles," 49 C.F.R. Part 38; (4) Department of Justice (DOJ) regulations, "Nondiscrimination on the Basis of Disability in State and Local Government Services," 28 C.F.R. Part 35; (5) DOJ regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities," 28 C.F.R. Part 36; (6) General Services Administration regulations, "Construction and Alteration of Public Buildings," "Accommodations for the Physically Handicapped," 41 C.F.R. Part 101-19; (7) Equal Employment Opportunity Commission (EEOC) "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630; (8) Federal Communications Commission regulations, "Telecommunications Relay Services and Related Customer Premises Equipment for the Hearing and Speech Disabled," 47 C.F.R. Part 64, Subpart F; and (9) FTA regulations, "Transportation for Elderly and Handicapped Persons," 49 C.F.R. Part 609. Page 26 Section 118. Construction Contr The following provisions apply to the Recipient's third party construction contracts: a. Nondiscrimination. Pursuant to Department of Labor regulations at 41 C.F.R. 60-1.4(b)(1) and 60-1.4(c): (1) The Recipient agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in Department of Labor regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 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: (a) THE CONTRACTOR WILL NOT DISCRIMINATE AGAINST ANY EMPLOYEE OR APPLICANT FOR EMPLOYMENT BECAUSE OF RACE, COLOR, RELIGION, SEX, DISABILITY, 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, DISABILITY 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. (b) 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, DISABILITY, OR NATIONAL ORIGIN. (c) 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 Page 27 202 OF EXECUTIVE ORDER NO. 11246 OF SEPTEMBER 24, 1965, AND SHALL POST COPIES OF THE NOTICE IN CONSPICUOUS PLACES AVAILABLE TO EMPLOYEES AND APPLICANTS FOR EMPLOYMENT. (d) THE CONTRACTOR WILL COMPLY WITH ALL PROVISIONS OF EXECUTIVE ORDER NO. 11246 OF SEPTEMBER 241 1965, AND OF THE RULES, REGULATIONS, AND RELEVANT ORDERS OF THE SECRETARY OF LABOR. (e) THE CONTRACTOR WILL FURNISH ALL INFORMATION AND REPORTS REQUIRED BY EXECUTIVE ORDER NO. 11246 OF SEPTEMBER 24, 1965, AND BY THE RULES, REGULATIONS, AND ORDERS OF THE SECRETARY OF LABOR, OR PURSUANT THERETO, AND WILL PERMIT ACCESS TO ITS BOORS, RECORDS AND ACCOUNTS BY THE SECRETARY OF LABOR AND THE FTA FOR PURPOSES OF INVESTIGATION TO ASCERTAIN COMPLIANCE WITH SUCH RULES, REGULATIONS, AND ORDERS. (f) IN THE EVENT OF THE CONTRACTOR'S NONCOMPLIANCE WITH THE NONDISCRIMINATION CLAUSES OF THIS AGREEMENT OR WITH ANY OF SUCH RULES, REGULATIONS, OR ORDERS, THIS AGREEMENT MAY BE CANCELLED, TERMINATED, OR SUSPENDED IN WHOLE OR IN PART AND THE CONTRACTOR MAY BE DECLARED INELIGIBLE FOR FURTHER FEDERAL OR FEDERALLY ASSISTED CONTRACTS IN ACCORDANCE WITH PROCEDURES AUTHORIZED IN EXECUTIVE ORDER NO. 11246 OF SEPTEMBER 24, 1965, AND SUCH OTHER SANCTIONS MAY BE IMPOSED AND REMEDIES INVOKED AS PROVIDED IN EXECUTIVE ORDER NO. 11246 OF SEPTEMBER 24, 1965, OR BY RULE, REGULATION, OR ORDER OF THE SECRETARY OF LABOR, OR AS OTHERWISE PROVIDED BY LAW. (g) THE CONTRACTOR WILL INCLUDE THE PROVISIONS OF PARAGRAPHS (a) THROUGH (g) OF THIS SUBSECTION IN EVERY SUBCONTRACT OR PURCHASE ORDER UNLESS EXEMPTED BY RULES, REGULATIONS, OR ORDERS OF THE SECRETARY OF LABOR ISSUED PURSUANT TO SECTION 204 OF EXECUTIVE ORDER NO. 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 THE PTA 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. (2) The Recipient agrees to assure that each nonexempt prime contractor and subcontractor shall include in each nonexempt contract the requirements of Part II, Subsections 118.a(1)(a) through (g) of this Agreement. Page 28 (3) The Recipient 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 Recipient 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. (4) The Recipient agrees that it will assist and cooperate actively with the FTA and the Secretary of Labor in obtaining compliance by contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor; that it will provide the FTA and the Secretary of Labor such information as they may require for the supervision of such compliance; and that it will otherwise assist the FTA in discharging its primary responsibility for securing compliance. (5) The Recipient further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order No. 11246 of September 24, 1965, as amended, "Equal Employment Opportunity," 30 Fed. Rea. 12319 pt sea. with any contractor that is debarred from or has not demonstrated eligibility 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 clause as may be imposed upon contractors and subcontractors by the FTA or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the Recipient agrees that if it fails or refuses to comply with these undertakings, the PTA 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 Recipient under the program with respect to which the failure or refusal occurred until the Recipient provides satisfactory assurance of future compliance; and refer the case to the Department of Justice for appropriate legal proceedings. b. Specifications. The Recipient agrees that it will incorporate or cause to be incorporated the specifications set forth below into all 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 Department of Labor regulations 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 No. 11246: Page 29 STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION CONTRACT SPECIFICATIONS (EXECUTIVE ORDER NO. 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 (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 CONTRACT RESULTED. (3) IF THE CONTRACTOR IS PARTICIPATING (PURSUANT TO 41 C.F.R. § 60-4.5) IN A HOMETOWN PLAN APPROVED BY THE U.S. DEPARTMENT OF LABOR IN THE COVERED AREA, EITHER INDIVIDUALLY OR THROUGH AN ASSOCIATION, ITS AFFIRMATIVE ACTION OBLIGATIONS Page 30 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 PARTICIPATION IN AND COMPLIANCE WITH THE PROVISIONS OF ANY SUCH HOMETOWN PLAN. EACH CONTRACTOR OR SUBCONTRACTOR PARTICIPATING IN AN APPROVED PLAN IS INDIVIDUALLY REQUIRED TO COMPLY WITH ITS OBLIGATIONS UNDER THE EEO CLAUSE, AND TO MAKE A GOOD FAITH EFFORT TO ACHIEVE EACH GOAL UNDER THE PLAN IN EACH TRADE IN WHICH IT HAS EMPLOYEES. THE OVERALL GOOD FAITH PERFORMANCE BY OTHER CONTRACTORS OR 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 HOURS OF EMPLOYMENT AND TRAINING OF MINORITY AND FEMALE UTILIZATION THE CONTRACTOR SHOULD REASONABLY BE ABLE TO ACHIEVE IN EACH CONSTRUCTION TRADE IN WHICH IT HAS EMPLOYEES IN THE COVERED AREA. COVERED CONSTRUCTION CONTRACTORS PERFORMING CONSTRUCTION WORK IN GEOGRAPHICAL AREAS WHERE THEY DO NOT HAVE A FEDERAL OR FEDERALLY ASSISTED CONSTRUCTION CONTRACT SHALL APPLY THE MINORITY AND FEMALE GOALS ESTABLISHED FOR THE GEOGRAPHICAL AREA WHERE THE WORK IS BEING PERFORMED. GOALS ARE PUBLISHED PERIODICALLY IN THE FEDERAL REGISTER IN NOTICE FORM, AND SUCH NOTICES MAY BE OBTAINED FROM ANY OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS OFFICE OR FROM FEDERAL PROCUREMENT CONTRACTING OFFICERS. THE CONTRACTOR IS EXPECTED TO MAKE SUBSTANTIALLY UNIFORM PROGRESS TOWARD ITS GOAL IN EACH CRAFT DURING THE PERIOD SPECIFIED. (5) NEITHER THE PROVISIONS OF ANY COLLECTIVE BARGAINING AGREEMENT, NOR THE FAILURE BY A UNION WITH WHOM THE CONTRACTOR HAS A COLLECTIVE BARGAINING AGREEMENT, TO REFER EITHER MINORITIES OR WOMEN SHALL EXCUSE THE CONTRACTOR'S OBLIGATIONS UNDER THESE SPECIFICATIONS, EXECUTIVE ORDER NO. 11246, OR THE REGULATIONS PROMULGATED PURSUANT THERETO. (6) IN ORDER FOR THE NONWORKING TRAINING HOURS OF APPRENTICES AND TRAINEES TO BE COUNTED IN MEETING THE GOALS, SUCH APPRENTICES AND TRAINEES MUST BE EMPLOYED BY THE CONTRACTOR DURING THE TRAINING PERIOD, AND THE CONTRACTOR MUST HAVE MADE A COMMITMENT TO EMPLOY THE 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. Page 31 (7) THE CONTRACTOR SHALL TAKE SPECIFIC AFFIRMATIVE ACTIONS TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY. THE EVALUATION OF THE CONTRACTOR'S COMPLIANCE WITH THESE SPECIFICATIONS SHALL BE BASED UPON ITS EFFORT TO ACHIEVE MAXIMUM RESULTS FROM ITS ACTIONS. THE CONTRACTOR SHALL DOCUMENT THESE EFFORTS FULLY, AND SHALL IMPLEMENT 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 SPECIFICALLY ENSURE THAT ALL FOREMEN, SUPERINTENDENTS, AND OTHER ON-SITE SUPERVISORY PERSONNEL ARE AWARE OF AND CARRY OUT THE CONTRACTOR'S OBLIGATION TO MAINTAIN SUCH A WORKING ENVIRONMENT, WITH SPECIFIC 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 RECRUITMENT SOURCE OR COMMUNITY ORGANIZATION AND OF WHAT ACTION WAS TAKEN WITH RESPECT TO EACH SUCH 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 Page 32 PROGRAMS AND APPRENTICESHIP AND TRAINEE PROGRAMS RELEVANT TO THE CONTRACTOR'S EMPLOYMENT NEEDS, ESPECIALLY THOSE PROGRAMS FUNDED OR APPROVED BY THE DEPARTMENT OF LABOR. THE CONTRACTOR SHALL PROVIDE NOTICE OF THESE PROGRAMS TO THE SOURCES COMPILED UNDER (7)(b) ABOVE. (f) DISSEMINATE THE CONTRACTOR'S EEO POLICY BY PROVIDING NOTICE OF THE POLICY TO UNIONS AND TRAINING 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 SUPERINTENDENTS, GENERAL FOREMAN, ETC., PRIOR TO THE INITIATION OF CONSTRUCTION WORK AT ANY JOB SITE. A WRITTEN RECORD SHALL BE MADE AND MAINTAINED IDENTIFYING THE TIME AND PLACE OF THESE MEETINGS, PERSONS ATTENDING, SUBJECT MATTER DISCUSSED, AND DISPOSITION OF THE SUBJECT MATTER. (h) DISSEMINATE THE CONTRACTOR'S EEO POLICY 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, Page 33 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 PROMOTIONAL OPPORTUNITIES AND ENCOURAGE THESE EMPLOYEES TO SEEK OR TO PREPARE FOR, THROUGH APPROPRIATE TRAINING, ETC., SUCH OPPORTUNITIES. (m) ENSURE THAT SENIORITY PRACTICES, JOB CLASSIFICATIONS, WORK 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 SUPERVISORS' 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 Page 34 TIMETABLES, AND DEMONSTRATES THE THE CONTRACTOR. CONTRACTOR'S AND OBLIGATION SHALL NONCOMPLIANCE. ^AN PROVIDE ACCESS TO DOCUMENTATION THAT EFFECTIVENESS OF ACTIONS TAKEN ON BEHALF OF THE OBLIGATION TO COMPLY, HOWEVER, IS THE FAILURE OF SUCH A GROUP TO FULFILL AN NOT BE A DEFENSE FOR THE CONTRACTOR'S (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 PARTICULAR GROUP IS EMPLOYED IN A SUBSTANTIALLY DISPARATE MANNER (EVEN THOUGH THE CONTRACTOR HAS ACHIEVED ITS GOAL FOR WOMEN GENERALLY, THE CONTRACTOR MAY BE IN VIOLATION OF THE EXECUTIVE ORDER IF A SPECIFIC MINORITY GROUP OF WOMEN IS UNDERUTILIZED). (10) THE CONTRACTOR SHALL NOT USE THE GOALS AND 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 NO. 11246. (12) THE CONTRACTOR SHALL CARRY OUT SUCH SANCTIONS AND PENALTIES FOR VIOLATION OF THESE SPECIFICATIONS AND OF THE EQUAL OPPORTUNITY CLAUSE, INCLUDING SUSPENSION, TERMINATION AND CANCELLATION OF EXISTING SUBCONTRACTS AS MAY BE IMPOSED OR ORDERED PURSUANT TO EXECUTIVE ORDER NO. 112461 AS AMENDED, AND ITS IMPLEMENTING REGULATIONS, BY THE OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS. ANY CONTRACTOR WHO FAILS TO CARRY OUT SUCH SANCTIONS AND PENALTIES SHALL BE IN VIOLATION OF THESE SPECIFICATIONS AND EXECUTIVE ORDER NO. 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 CONTRACTOR 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 Page 35 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 AFFILIATION IF ANY, EMPLOYEE IDENTIFICATION NUMBER WHEN ASSIGNED, SOCIAL SECURITY NUMBER, RACE, SEX, STATUS (E.G., MECHANIC, APPRENTICE TRAINEE, HELPER, OR LABORER), DATES OF CHANGES IN STATUS, HOURS WORKED PER WEEK IN THE INDICATED TRADE, RATE OF PAY, AND LOCATIONS AT WHICH THE WORK WAS PERFORMED. RECORDS SHALL BE MAINTAINED IN AN EASILY UNDERSTANDABLE AND RETRIEVABLE FORM; HOWEVER, TO THE EXTENT THAT EXISTING RECORDS SATISFY THIS REQUIREMENT, CONTRACTORS SHALL NOT BE REQUIRED TO MAINTAIN SEPARATE RECORDS. (15) NOTHING HEREIN PROVIDED SHALL BE CONSTRUED AS A LIMITATION UPON THE APPLICATION OF OTHER LAWS THAT 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). c. Notice. The Recipient 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 federally assisted construction contracts or subcontracts in excess of $10,000 to be performed in geographical areas designated by the Director, Office of Federal Contract Compliance Programs of the Department of Labor at 41 C.F.R. S 60-4.2: NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY (EXECUTIVE ORDER NO. 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 PARTICIPATION IN EACH TRADE INSERT GOALS FOR EACH YEAR GOALS FOR FEMALE PARTICIPATION IN EACH TRADE INSERT GOALS FOR EACH YEAR Page 36 (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 PERFORMS CONSTRUCTION WORK IN A GEOGRAPHICAL AREA LOCATED OUTSIDE OF THE COVERED AREA, IT SHALL APPLY THE GOALS ESTABLISHED FOR SUCH GEOGRAPHICAL AREA WHERE THE WORK IS ACTUALLY PERFORMED. WITH REGARD TO THIS SECOND AREA, THE CONTRACTOR ALSO IS SUBJECT TO THE GOALS FOR BOTH ITS FEDERALLY INVOLVED AND NONFEDERALLY INVOLVED CONSTRUCTION. (c) THE CONTRACTOR'S COMPLIANCE WITH THE 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 CONTRACTOR TO CONTRACTOR OR FROM PROJECT TO PROJECT FOR THE SOLE PURPOSE OF MEETING THE CONTRACTOR'S GOALS SHALL BE A VIOLATION OF THE CONTRACT, THE EXECUTIVE ORDER, AND THE REGULATIONS IN AT C.F.R. PART 60-4. COMPLIANCE WITH THE GOALS WILL BE MEASURED AGAINST THE TOTAL WORK HOURS PERFORMED. (3) THE CONTRACTOR SHALL PROVIDE WRITTEN NOTIFICATION TO THE DIRECTOR OF THE OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS WITHIN 10 WORKING DAYS OF AWARD OF ANY CONSTRUCTION SUBCONTRACT IN EXCESS OF $10,000 AT ANY TIER FOR CONSTRUCTION WORK UNDER THE CONTRACT RESULTING FROM THIS SOLICITATION. THE NOTIFICATION SHALL LIST THE NAME, ADDRESS, AND TELEPHONE NUMBER OF THE SUBCONTRACTOR; EMPLOYER IDENTIFICATION NUMBER OF THE SUBCONTRACTOR; ESTIMATED DOLLAR AMOUNT OF THE SUBCONTRACT; ESTIMATED STARTING AND COMPLETION DATES OF THE SUBCONTRACT; AND THE GEOGRAPHICAL AREA IN WHICH THE SUBCONTRACT IS TO BE PERFORMED. (4) AS USED IN THIS NOTICE, AND IN THE CONTRACT RESULTING FROM THIS SOLICITATION, THE "COVERED AREA" IS (INSERT DESCRIPTION OF THE GEOGRAPHICAL AREAS WHERE THE CONTRACT IS TO BE PERFORMED, GIVING THE STATE, COUNTY AND CITY, IF ANY). d. Contract Security. The Recipient agrees to follow the requirements of 49 C.F.R. § 18.36(h) or OMB Circular A-110, Attachment B, as applicable, and Federal (FTA) guidelines with regard to bid guarantees and bonding requirements. Page 37 e. Insurance During Construction. At a minimum, the Recipient agrees to comply with the insurance requirements normally imposed by its State and local governments. f. Signs. The Recipient agrees to cause to be erected at the site of construction, and maintained during construction, signs satisfactory to the U.S. DOT identifying the Project and indicating that the Government is participating in the development of the Project. g. Safety Standards. Pursuant to Section 107 of the Contract Work Hours and Safety Standards Act and Department of Labor regulations, "Safety and Health Regulations for Construction," 29 C.F.R. § 1926, no laborer or mechanic working on a construction contract shall be required to work in surroundings or under working conditions that are unsanitary, hazardous, or dangerous to his or her health and safety as determined under construction and health standards promulgated by the Secretary of Labor. h. Liquidated Damages. If appropriate, the Recipient agrees to include a clause providing for liquidated damages in its third party contracts for construction. Liquidated damages clauses are appropriate if the parties may reasonably expect to suffer damages (increased costs on the Project involved) from the late completion of the construction and the extent or amount of such damages would be difficult or impossible to determine. The assessment for damages shall be at a specific rate per day for each day of overrun in contract time; and the rate must be specified in the third party contract. Any liquidated damages recovered shall be credited to the Project account involved unless the Government permits otherwise. Section 119. Labor Provisions. a. Construction Contracts. Pursuant to Department of Labor regulations, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (Also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act)," 29 C.F.R. Part 5, the following provisions shall be incorporated in each construction contract of $2,000 or more let by the Recipient in carrying out the Project. (1) MINIMUM WAGES. (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 Page 38 CONSTRUCTION OR DEVELOPMENT OF THE PROJECT), WILL BE PAID UNCONDITIONALLY AND NOT LESS OFTEN THAN ONCE A WEEK, AND WITHOUT SUBSEQUENT DEDUCTION OR REBATE ON ANY ACCOUNT (EXCEPT SUCH PAYROLL DEDUCTIONS AS ARE PERMITTED BY REGULATIONS ISSUED BY THE SECRETARY OF LABOR UNDER THE COPELAND ACT, 29 C.F.R. PART 3), THE FULL AMOUNT OF WAGES AND BONA FIDE FRINGE BENEFITS (OR CASH EQUIVALENTS THEREOF) DUE AT THE TIME OF PAYMENT COMPUTED AT RATES NOT LESS THAN THOSE CONTAINED IN THE WAGE DETERMINATION OF THE 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 CONSIDERED WAGES PAID TO SUCH LABORERS OR MECHANICS, SUBJECT TO THE PROVISIONS OF 29 C.F.R. § 5.5(a)(1)(iv); ALSO, REGULAR CONTRIBUTIONS MADE OR COSTS INCURRED FOR MORE THAN A WEEKLY PERIOD (BUT NOT LESS OFTEN THAN 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 PERFORMED, WITHOUT REGARD TO SKILL, EXCEPT AS PROVIDED AT 29 C.F.R. § 5.5(a)(4). LABORERS OR MECHANICS PERFORMING WORK IN MORE THAN ONE CLASSIFICATION MAY BE COMPENSATED AT THE RATE SPECIFIED FOR EACH 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 DETERMINATION (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, INCLUDING HELPERS, 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. EXCEPT WITH RESPECT TO HELPERS AS DEFINED IN 29 C.F.R. § 5.2(n)(4), THE WORK TO BE PERFORMED BY THE CLASSIFICATION REQUESTED IS NOT PERFORMED BY A CLASSIFICATION IN THE WAGE DETERMINATION; AND Page 39 b. THE CLASSIFICATION IS UTILIZED IN THE AREA BY THE CONSTRUCTION INDUSTRY; AND c. THE PROPOSED WAGE RATE, INCLUDING ANY BONA FIDE FRINGE BENEFITS, BEARS A REASONABLE RELATIONSHIP TO THE WAGE RATES CONTAINED IN THE WAGE DETERMINATION. d. WITH RESPECT TO HELPERS AS DEFINED IN 29 C.F.R. § 5.2(n)(4), SUCH A CLASSIFICATION PREVAILS IN THE AREA IN WHICH THE WORK IS PERFORMED. 2. IF THE CONTRACTOR AND THE LABORERS AND MECHANICS TO BE EMPLOYED IN THE CLASSIFICATION (IF KNOWN), OR THEIR REPRESENTATIVES, AND THE CONTRACTING OFFICER AGREE ON THE CLASSIFICATION AND WAGE RATE (INCLUDING THE AMOUNT DESIGNATED FOR FRINGE BENEFITS WHERE APPROPRIATE), A REPORT OF THE ACTION TAKEN SHALL BE SENT BY THE CONTRACTING OFFICER TO THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, EMPLOYMENT STANDARDS ADMINISTRATION, U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C. 20210. THE ADMINISTRATOR, OR AN AUTHORIZED REPRESENTATIVE, WILL APPROVE, MODIFY, OR DISAPPROVE EVERY ADDITIONAL CLASSIFICATION ACTION WITHIN 30 DAYS OF RECEIPT AND SO ADVISE THE CONTRACTING OFFICER OR WILL NOTIFY THE CONTRACTING OFFICER WITHIN THE 30-DAY PERIOD THAT ADDITIONAL TIME IS NECESSARY. 2. IN THE EVENT THE CONTRACTOR, THE 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 QUESTIONS INCLUDING THE VIEWS OF ALL INTERESTED PARTIES AND THE RECOMMENDATION OF THE CONTRACTING OFFICER, TO THE ADMINISTRATOR FOR DETERMINATION. THE ADMINISTRATOR, OR AN AUTHORIZED REPRESENTATIVE, WILL ISSUE A DETERMINATION WITHIN 30 DAYS OF RECEIPT AND SO ADVISE THE CONTRACTING OFFICER OR WILL NOTIFY THE CONTRACTING OFFICER WITHIN THE 30-DAY PERIOD THAT ADDITIONAL TIME IS NECESSARY. 4. THE WAGE RATE (INCLUDING FRINGE BENEFITS WHERE APPROPRIATE) DETERMINED PURSUANT TO 29 C.F.R. § 5.5 (a) (i) (1) (B) OR 29 C.F.R. § 5.5 (a) (i) (1) (C) , SHALL BE PAID TO ALL WORKERS PERFORMING WORK IN THE CLASSIFICATION UNDER THIS CONTRACT 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 Page 40 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. THE FEDERAL TRANSIT ADMINISTRATION (FTA) SHALL UPON ITS OWN ACTION OR UPON WRITTEN REQUEST OF AN AUTHORIZED REPRESENTATIVE OF THE DEPARTMENT OF LABOR WITHHOLD OR CAUSE TO BE WITHHELD FROM THE CONTRACTOR, UNDER THIS AGREEMENT OR ANY OTHER FEDERAL CONTRACT WITH THE SAME RECIPIENT OR ANY OTHER FEDERALLY-ASSISTED CONTRACT SUBJECT TO DAVIS-BACON PREVAILING WAGE REQUIREMENTS, WHICH IS HELD BY THE SAME PRIME CONTRACTOR, SO MUCH OF THE ACCRUED PAYMENTS OR ADVANCES AS MAY BE CONSIDERED NECESSARY TO PAY LABORERS AND MECHANICS, INCLUDING APPRENTICES, TRAINEES, AND HELPERS, EMPLOYED BY THE CONTRACTOR OR ANY SUBCONTRACTOR THE FULL AMOUNT OF WAGES REQUIRED BY THE CONTRACT. IN THE EVENT OF FAILURE TO PAY ANY LABORER OR MECHANIC, INCLUDING ANY APPRENTICE, TRAINEE, OR HELPER, EMPLOYED OR WORKING ON THE SITE OF THE WORK (OR UNDER THE UNITED STATES HOUSING ACT OF 1937 OR UNDER THE HOUSING ACT OF 1949 IN THE CONSTRUCTION OR DEVELOPMENT OF THE PROJECT), ALL OR PART OF THE WAGES REQUIRED BY THE CONTRACT, THE FTA MAY, AFTER WRITTEN NOTICE TO THE CONTRACTOR, SPONSOR, APPLICANT, OR OWNER, TAKE SUCH ACTION AS MAY BE NECESSARY TO CAUSE THE SUSPENSION OF ANY FURTHER PAYMENT, ADVANCE, OR GUARANTEE OF FUNDS UNTIL SUCH VIOLATIONS HAVE CEASED. (3) PAYROLLS AND BASIC RECORDS.- (a) PAYROLLS AND BASIC RECORDS RELATING THERETO SHALL BE MAINTAINED BY THE CONTRACTOR DURING THE COURSE OF THE WORK AND PRESERVED FOR A PERIOD OF THREE YEARS THEREAFTER FOR ALL LABORERS AND MECHANICS WORKING AT THE SITE OF THE WORK (OR UNDER THE UNITED STATES HOUSING ACT OF 1937, OR UNDER THE HOUSING ACT OF 1949, IN THE CONSTRUCTION OR DEVELOPMENT OF THE PROJECT). SUCH RECORDS SHALL CONTAIN THE NAME, ADDRESS, AND SOCIAL SECURITY NUMBER OF EACH SUCH WORKER, HIS OR HER CORRECT CLASSIFICATION, HOURLY RATES OF WAGES PAID (INCLUDING RATES OF CONTRIBUTIONS OR COSTS ANTICIPATED FOR BONA FIDE FRINGE BENEFITS OR CASH EQUIVALENTS THEREOF OF THE TYPES DESCRIBED IN SECTION 1(b)(2)(B) OF THE DAVIS-BACON ACT), DAILY AND WEEKLY NUMBER OF HOURS WORKED, DEDUCTIONS MADE AND ACTUAL Page 41 WAGES PAID. WHENEVER THE SECRETARY OF LABOR HAS FOUND UNDER 29 C.F.R. S 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 FINANCIALLY RESPONSIBLE, AND THAT THE PLAN OR PROGRAM HAS BEEN COMMUNICATED IN WRITING TO THE LABORERS OR MECHANICS AFFECTED, AND RECORDS WHICH SHOW THE COSTS ANTICIPATED OR THE ACTUAL COSTS INCURRED IN PROVIDING SUCH BENEFITS. CONTRACTORS EMPLOYING APPRENTICES OR TRAINEES UNDER APPROVED PROGRAMS SHALL MAINTAIN WRITTEN EVIDENCE OF THE REGISTRATION OF 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) THE CONTRACTOR SHALL SUBMIT WEEKLY FOR EACH WEEK IN WHICH ANY CONTRACT WORK IS PERFORMED A COPY OF ALL PAYROLLS TO THE FTA IF THE PTA IS A PARTY TO THE CONTRACT; BUT IF THE FTA 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 THE FTA. THE PAYROLLS SUBMITTED SHALL SET OUT ACCURATELY AND COMPLETELY ALL OF THE INFORMATION REQUIRED TO BE MAINTAINED UNDER 29 C.F.R. S 5.5(a)(3)(i). THIS INFORMATION MAY BE SUBMITTED IN ANY FORM DESIRED. OPTIONAL FORM WH-347 IS AVAILABLE FOR THIS PURPOSE AND MAY BE PURCHASED FROM THE SUPERINTENDENT OF DOCUMENTS (FEDERAL STOCK NO. 029-005-00014-1), U.S. GOVERNMENT PRINTING OFFICE, WASHINGTON, D.C. 20402. THE PRIME CONTRACTOR IS RESPONSIBLE FOR THE SUBMISSION OF COPIES OF PAYROLLS BY ALL SUBCONTRACTORS. .Z. EACH PAYROLL SUBMITTED SHALL BE ACCOMPANIED BY A "STATEMENT OF COMPLIANCE," SIGNED BY THE CONTRACTOR OR SUBCONTRACTOR OR HIS OR HER AGENT WHO PAYS OR SUPERVISES THE PAYMENT OF THE PERSONS EMPLOYED UNDER THE CONTRACT AND SHALL CERTIFY THE FOLLOWING: A. THAT THE PAYROLL FOR THE PAYROLL PERIOD CONTAINS THE INFORMATION REQUIRED TO BE MAINTAINED UNDER 29 C.F.R. S 5.5.(a)(3)(i) AND THAT SUCH INFORMATION IS CORRECT AND COMPLETE; 12. 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; Page 42 c. THAT EACH LABORER OR MECHANIC HAS BEEN PAID NOT LESS THAN THE APPLICABLE WAGE RATES AND FRINGE BENEFITS OR CASH EQUIVALENTS FOR THE CLASSIFICATION OF WORK PERFORMED, AS SPECIFIED IN THE APPLICABLE WAGE DETERMINATION INCORPORATED INTO THE CONTRACT. 3. THE WEEKLY SUBMISSION OF A PROPERLY EXECUTED CERTIFICATION SET FORTH ON THE REVERSE SIDE OF OPTIONAL FORM WH-347 SHALL SATISFY THE REQUIREMENT FOR SUBMISSION OF THE "STATEMENT OF COMPLIANCE" REQUIRED BY 29 C.F.R. § 5.5 (a) (3) (ii) (B) . 4. THE FALSIFICATION OF ANY OF THE ABOVE CERTIFICATIONS MAY SUBJECT THE CONTRACTOR OR SUBCONTRACTOR TO CIVIL OR CRIMINAL PROSECUTION UNDER 18 U.S.C. § 1001 AND 31 U.S.C. § 231. (c) THE CONTRACTOR OR SUBCONTRACTOR SHALL MAKE THE RECORDS REQUIRED UNDER 29 C.F.R. § 5.5(a)(3)(i) AVAILABLE FOR INSPECTION, COPYING, OR TRANSCRIPTION BY AUTHORIZED REPRESENTATIVES OF THE FTA OR THE DEPARTMENT OF LABOR, AND SHALL PERMIT SUCH REPRESENTATIVES TO INTERVIEW EMPLOYEES DURING WORKING HOURS ON THE JOB. IF THE CONTRACTOR OR SUBCONTRACTOR FAILS TO SUBMIT THE REQUIRED RECORDS OR MAKE THEM AVAILABLE, THE FTA 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 FIDE APPRENTICESHIP PROGRAM REGISTERED WITH THE U.S. DEPARTMENT OF LABOR, EMPLOYMENT AND TRAINING ADMINISTRATION, BUREAU OF APPRENTICESHIP AND TRAINING, OR WITH A STATE APPRENTICESHIP AGENCY RECOGNIZED BY THE BUREAU, OR IF A PERSON IS EMPLOYED IN HIS OR HER FIRST 90 DAYS OF PROBATIONARY EMPLOYMENT AS AN APPRENTICE IN SUCH AN APPRENTICESHIP PROGRAM, WHO IS NOT INDIVIDUALLY REGISTERED IN THE PROGRAM, BUT WHO HAS BEEN CERTIFIED BY THE BUREAU OF APPRENTICESHIP AND TRAINING OR A STATE APPRENTICESHIP AGENCY (WHERE APPROPRIATE) TO BE ELIGIBLE FOR PROBATIONARY EMPLOYMENT AS AN APPRENTICE. THE ALLOWABLE RATIO OF APPRENTICES TO JOURNEYMEN ON THE JOB SITE IN ANY CRAFT CLASSIFICATION SHALL NOT BE GREATER THAN THE RATIO PERMITTED TO THE CONTRACTOR AS TO THE ENTIRE WORK FORCE UNDER THE REGISTERED PROGRAM. ANY WORKER LISTED ON A PAYROLL AT AN APPRENTICE WAGE RATE, WHO IS NOT REGISTERED OR OTHERWISE Page 43 EMPLOYED AS STATED ABOVE, SHALL BE PAID NOT LESS THAN THE APPLICABLE WAGE ON THE WAGE DETERMINATION 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 OBSERVED. EVERY APPRENTICE MUST BE PAID AT NOT LESS THAN THE RATE SPECIFIED IN THE REGISTERED PROGRAM FOR THE APPRENTICE'S LEVEL OF PROGRESS, EXPRESSED AS A 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 APPLICABLE CLASSIFICATION. IF THE ADMINISTRATOR DETERMINES THAT A DIFFERENT PRACTICE PREVAILS FOR THE APPLICABLE APPRENTICE CLASSIFICATION, FRINGE BENEFITS SHALL BE PAID IN ACCORDANCE WITH THAT DETERMINATION. IN THE EVENT THE BUREAU OF APPRENTICESHIP AND TRAINING, OR A STATE APPRENTICESHIP AGENCY RECOGNIZED BY THE BUREAU, WITHDRAWS APPROVAL OF AN APPRENTICESHIP PROGRAM, THE CONTRACTOR WILL NO LONGER BE PERMITTED TO UTILIZE APPRENTICES AT LESS THAN THE APPLICABLE PREDETERMINED RATE FOR THE WORK PERFORMED UNTIL AN ACCEPTABLE PROGRAM IS APPROVED. (b) TRAINEES. EXCEPT AS PROVIDED IN 29 C.F.R. § 5.16, TRAINEES WILL NOT BE PERMITTED TO WORK AT LESS THAN THE PREDETERMINED RATE FOR THE WORK PERFORMED UNLESS THEY ARE EMPLOYED PURSUANT TO AND INDIVIDUALLY REGISTERED IN A PROGRAM WHICH HAS RECEIVED PRIOR APPROVAL, EVIDENCED BY FORMAL CERTIFICATION BY THE U.S. DEPARTMENT OF LABOR, EMPLOYMENT AND TRAINING ADMINISTRATION. THE RATIO OF TRAINEES TO JOURNEYMEN ON THE JOB SITE SHALL NOT BE GREATER THAN PERMITTED UNDER THE PLAN APPROVED BY THE EMPLOYMENT AND TRAINING ADMINISTRATION. EVERY TRAINEE MUST BE PAID AT NOT LESS THAN THE RATE SPECIFIED IN THE APPROVED PROGRAM FOR THE TRAINEE'S LEVEL OF PROGRESS, EXPRESSED AS A PERCENTAGE OF THE JOURNEYMAN HOURLY RATE SPECIFIED IN THE APPLICABLE WAGE DETERMINATION. TRAINEES SHALL BE PAID FRINGE BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE TRAINEE PROGRAM. IF THE TRAINEE PROGRAM DOES NOT MENTION FRINGE BENEFITS, TRAINEES SHALL BE PAID THE FULL AMOUNT OF FRINGE BENEFITS LISTED ON THE WAGE DETERMINATION UNLESS THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION DETERMINES THAT THERE IS AN APPRENTICESHIP PROGRAM ASSOCIATED WITH THE CORRESPONDING JOURNEYMAN WAGE RATE ON THE Page 44 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) EOUAL 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 NO. 11246, AS AMENDED, AND 29 C.F.R. PART 30. (d) HELPERS. HELPERS WILL BE PERMITTED TO WORK ON A PROJECT IF THE HELPER CLASSIFICATION IS SPECIFIED ON AN APPLICABLE WAGE DETERMINATION OR IS APPROVED PURSUANT TO THE CONFORMANCE PROCEDURE SET FORTH IN 29 C.F.R. § 5.5(a)(1)(ii). THE ALLOWABLE RATIO OF HELPERS TO JOURNEYMEN EMPLOYED BY THE CONTRACTOR OR SUBCONTRACTOR ON THE JOB SITE SHALL NOT BE GREATER THAN TWO HELPERS FOR EVERY THREE JOURNEYMEN (IN OTHER WORDS, NOT MORE THAN 40 PERCENT OF THE TOTAL NUMBER OF JOURNEYMEN AND HELPERS IN EACH CONTRACTOR'S OR IN EACH SUBCONTRACTOR'S OWN WORK FORCE EMPLOYED ON THE JOB SITE.) ANY WORKER LISTED ON A PAYROLL AT A HELPER WAGE RATE, WHO IS NOT A HELPER AS DEFINED IN 29 C.F.R. § 5.2(n)(4), SHALL BE PAID NOT LESS THAN THE APPLICABLE WAGE RATE ON THE WAGE DETERMINATION FOR THE CLASSIFICATION OF WORK ACTUALLY PERFORMED. IN ADDITION, ANY HELPER PERFORMING WORK ON THE JOB SITE IN EXCESS OF THE RATIO PERMITTED SHALL BE PAID NOT LESS THAN THE APPLICABLE JOURNEYMAN'S (OR LABORER'S, WHERE APPROPRIATE) WAGE RATE ON THE WAGE DETERMINATION FOR THE WORK ACTUALLY PERFORMED. (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. Page 45 (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, 31 AND 5 ARE INCORPORATED HEREIN BY REFERENCE. (8) DISPUTES CONCERNING LABOR STANDARDS. DISPUTES ARISING OUT OF THE LABOR STANDARDS PROVISIONS OF THIS CONTRACT SHALL NOT BE SUBJECT TO THE GENERAL DISPUTES CLAUSE OF THIS CONTRACT. SUCH DISPUTES SHALL BE RESOLVED IN ACCORDANCE WITH THE PROCEDURES OF THE DEPARTMENT OF LABOR SET FORTH IN 29 C.F.R. PARTS 5, 6, AND 7. DISPUTES WITHIN THE MEANING OF THIS CLAUSE INCLUDE DISPUTES BETWEEN THE CONTRACTOR (OR ANY OF ITS SUBCONTRACTORS) AND THE CONTRACTING AGENCY, THE U.S. DEPARTMENT OF LABOR, OR THE EMPLOYEES OR THEIR REPRESENTATIVES. (9) CERTIFICATION OF ELIGIBILITY. (a) BY ENTERING INTO THIS AGREEMENT OR A THIRD PARTY CONTRACT FINANCED UNDER THIS AGREEMENT, THE CONTRACTOR CERTIFIES THAT NEITHER IT (NOR HE NOR SHE) NOR ANY PERSON OR FIRM THAT HAS AN INTEREST IN THE CONTRACTOR'S FIRM IS A PERSON OR FIRM INELIGIBLE TO BE AWARDED GOVERNMENT CONTRACTS BY VIRTUE OF SECTION 3(a) OF THE DAVIS-BACON ACT OR 29 C.F.R. § 5.12(a)(1). (b) NO PART OF THIS CONTRACT SHALL BE SUBCONTRACTED TO ANY PERSON OR FIRM INELIGIBLE FOR AWARD OF A GOVERNMENT CONTRACT BY VIRTUE OF SECTION 3(a) OF THE DAVIS-BACON ACT OR 29 C.F.R. § 5.12(a)(1). (C) THE PENALTY FOR MAKING FALSE STATEMENTS IS PRESCRIBED IN THE U.S. CRIMINAL CODE, 18 U.S.C. § 1001. (10) OVERTIME REQUIREMENTS. NO CONTRACTOR OR SUBCONTRACTOR CONTRACTING FOR ANY PART OF THE CONTRACT WORK WHICH MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS SHALL REQUIRE OR PERMIT ANY 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 COMPENSATION AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE BASIC RATE OF PAY FOR ALL HOURS WORKED IN EXCESS OF FORTY HOURS IN SUCH WORK WEEK. (11) VIOLATION* LIABILITY FOR UNPAID WAGES: LIQUIDATED DAMAGES. IN THE EVENT OF ANY VIOLATION OF THE REQUIREMENTS OF 29 C.F.R. § 5.5(b)(1), THE CONTRACTOR AND ANY SUBCONTRACTOR RESPONSIBLE THEREFOR SHALL BE LIABLE FOR THE UNPAID WAGES. IN ADDITION, SUCH CONTRACTOR AND SUBCONTRACTOR SHALL BE LIABLE TO THE UNITED STATES (IN THE CASE OF WORK DONE UNDER CONTRACT FOR THE DISTRICT OF COLUMBIA OR A TERRITORY, TO SUCH DISTRICT OR TO SUCH TERRITORY) FOR LIQUIDATED DAMAGES. SUCH LIQUIDATED DAMAGES SHALL BE Page 46 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. THE FTA OR THE RECIPIENT SHALL UPON ITS OWN ACTION OR UPON WRITTEN REQUEST OF AN AUTHORIZED REPRESENTATIVE OF THE DEPARTMENT OF LABOR WITHHOLD OR CAUSE TO BE WITHHELD, FROM ANY MONEYS PAYABLE ON ACCOUNT OF WORK PERFORMED BY THE CONTRACTOR OR SUBCONTRACTOR UNDER ANY SUCH CONTRACT OR ANY OTHER FEDERAL CONTRACT WITH THE SAME PRIME 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 PART II, SUBSECTIONS 119.a(1) THROUGH (13) OF THIS AGREEMENT AND ALSO A CLAUSE REQUIRING THE SUBCONTRACTORS TO INCLUDE THESE CLAUSES IN ANY LOWER TIER SUBCONTRACTS. THE PRIME CONTRACTOR SHALL BE RESPONSIBLE FOR COMPLIANCE BY ANY SUBCONTRACTOR OR LOWER TIER SUBCONTRACTOR WITH THE CLAUSES SET FORTH IN PART II, SUBSECTIONS 119.a(1) THROUGH 119.a(12) OF THIS AGREEMENT. b. Nonconstruction Contracts. Pursuant to Department of Labor regulations, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (Also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act)," 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 Recipient in carrying out the Project: (1) NONCONSTRUCTION CONTRACTS. THE REQUIREMENTS OF THE CLAUSES CONTAINED IN 29 C.F.R. § 5.5(b) OR PART II, SUBSECTIONS 119.a(10) THROUGH 119.a(13) 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 Page 47 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 SUBCONTRACTOR FOR INSPECTION, COPYING, OR TRANSCRIPTION BY AUTHORIZED REPRESENTATIVES OF THE FTA, THE U.S. DOT, OR THE DEPARTMENT OF LABOR, AND THE CONTRACTOR OR SUBCONTRACTOR WILL PERMIT SUCH REPRESENTATIVES TO INTERVIEW EMPLOYEES DURING WORKING HOURS ON THE JOB. (2) NONCONSTRUCTION SUBCONTRACTS. THE CONTRACTOR OR SUBCONTRACTOR SHALL INSERT IN ANY SUBCONTRACTS THE CLAUSES SET FORTH IN PART II, SUBSECTIONS 119.a(10) THROUGH (12) AND SUBSECTION 119.b(2) OF THIS AGREEMENT AND ALSO A CLAUSE REQUIRING THE SUBCONTRACTORS TO INCLUDE THESE CLAUSES IN ANY LOWER TIER SUBCONTRACTS. THE PRIME CONTRACTOR SHALL BE RESPONSIBLE FOR COMPLIANCE BY ANY SUBCONTRACTOR OR LOWER TIER SUBCONTRACTOR WITH THE CLAUSES SET FORTH IN PART II, SUBSECTIONS 119.a(10) THROUGH 119.a(12) AND SUBSECTION 119.b(2) OF THIS AGREEMENT. c. State and Local Government Employees. The provisions of the Fair Labor Standards Act, as amended by Pub. L. 99-150, Nov. 13, 1985, and any further amendment, apply to State and local government employees that participate in the FTA assisted Project with the Recipient. Section 120. Environmental. Resource Conservation and Energy Requirements. The Recipient recognizes that many Federal and State statutes imposing environmental, resource conservation, and energy requirements may apply to the Project. Some, but not all, of the major Federal laws that may affect the Project include: the National Environmental Policy Act of 1969, 42 U.S.C. 4321 g1 seg,; the Clean Air Act, as amended, 42 U.S.C. 7401 a sea, and scattered sections of 29 U.S.C.; the Clean Water Act, as amended, scattered sections of 33 and 12 U.S.C.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901 g1 &=.; and the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, 42 U.S.C. 9601 at A=. The Recipient also recognizes that the Environmental Protection Agency (EPA), the Federal Highway Administration (FHWA) and other agencies of the Federal Government have issued and are expected in the future to issue requirements in the form of regulations, guidelines, standards, orders, or other directives that may affect the Project. Page 48 Accordingly, the Recipient agrees to adhere to, and impose on its subrecipients, any such Federal requirements, as the Government may now or in the future promulgate. Listed below are requirements of particular concern to the FTA. The Recipient expressly understands that this list does not constitute the Recipient's entire obligation to meet Federal requirements. a. Environmental Protection. To the extent applicable, the Recipient agrees to comply with the requirements of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321 It secy.; Section 14 of the Federal Transit Act, as amended, 49 U.S.C. app. 1610; the Council on Environmental Quality regulations, 40 C.F.R. Part 1500 g~ sq.; and the joint FHWA/FTA regulations, "Environmental Impact and Related Procedures," at 23 C.F.R. Part 771 and 49 C.F.R. Part 622. b. Air Pollution. The Recipient agrees to comply with the joint FHWA/FTA regulations, "Air Quality Conformity and Priority Procedures for Use in Federal-Aid Highway and 49 C.F.R. Part 623. The Recipient agrees to obtain satisfactory assurances that any facilities or equipment acquired, constructed, or improved as a part of the Project 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 and In-Use Motor Vehicles and New and In-Use Motor Vehicle Engines: Certification and Test Procedures," 40 C.F.R. Part 86; and "Fuel Economy of Motor Vehicles," 40 C.F.R. Part 600; in accordance with applicable Federally-approved State Implementation Plan(s) (in particular, the Transportation Control Measures); and in accordance with applicable Federal regulations, directives and other standards. c. Use of Public Lands. No publicly owned land from a park, recreation area, or wildlife or waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance may be used for the Project unless specific findings required by 49 U.S.C. § 303 are made by the U.S. DOT. d. Historic Preservation. The Recipient agrees to assist the Government to comply with Section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f, involving historic and archaeological preservation by: Page 49 (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 (FTA) of the existence of any such properties; and (2) Complying with all Federal requirements to avoid or mitigate adverse effects upon such properties. e. Energy Conservation. The Recipient and its third party contractors shall comply with mandatory standards and policies relating to energy efficiency that are contained in applicable State energy conservation plans issued in compliance with the Energy Policy and Conservation Act, 42 U.S.C. 6321 et seq. f. Mitigation of Adverse Environmental Effects. Should the proposed Project cause adverse environmental effects, the Recipient agrees to take all reasonable steps to minimize such effects pursuant to 49 U.S.C. app. § 1610, all other applicable statutes, and the procedures set forth in 23 C.F.R. Part 771 and 49 C.F.R. Part 622. The Recipient agrees to undertake all environmental mitigation measures that may be identified as commitments in applicable environmental documents (such as environmental assessments, environmental impact statements, memoranda of agreements, and statements required by 49 U.S.C. § 303) and with any conditions imposed by the Government as part of a finding of no significant impact or a record of decision; all such mitigation measures are incorporated in and made part of this Agreement by reference. If some or all mitigation measures are deferred, as soon as the Government and the Recipient agree on those measures, those agreed-upon measures will be incorporated into this Agreement. Such mitigation measures may not be modified or withdrawn without the express written approval of the Government. Section 121. Charter Service Operations. Neither the Recipient nor any mass transit operator that acts on behalf of a Recipient may engage in charter service operations except as provided under Section 3(f) of the Federal Transit Act, as amended, 49 U.S.C. app. § 1602(f), and FTA regulations "Charter Service," 49 C.F.R. Part 604. Any charter service agreement entered into under these regulations is incorporated into this Agreement by reference. Page 50 Section 122. School Bus Operations. Neither the Recipient nor any mass transit operator that acts on behalf of a Recipient may engage in school bus operations exclusively for the transportation of students or school personnel in competition with private school bus operators, except as provided in Section 3(g) of the Federal Transit Act, as amended, 49 U.S.C. app. § 1602(g), and FTA regulations "School Bus Operations," 49 C.F.R. Part 605, and any amendments thereto that may be issued. Any school bus agreement entered into under these regulations is incorporated into this Agreement by reference. Section 123. Private Enterprise. The private enterprise provisions of Sections 3(e), 8(0), and 9(f) of the Federal Transit Act, as amended, 49 U.S.C. app. 1602(e), 1607(0), and 1607a(f), and implementing guidance in FTA Circular 7005.1, "Documentation of Private Enterprise Participation Required for Sections 3 and 9 Programs," as may be revised, and any other U.S. DOT or FTA guidance that may be issued apply to Projects financed under Sections 3 and 9 of the Federal Transit Act, as amended, and Sections 103(e)(4) and 142 of Title 23, United States Code. Section 124. Metric System The Recipient agrees to use the metric system of measurement in its Project activities, in conformance with applicable regulations, guidelines, and policies that the U.S. DOT or the FTA may issue. Section 125. Privacy. Should the Recipient, or any of its third party contractors, subrecipients, or their employees administer any system of records on behalf of the Federal Government, the Privacy Act of 1974 (the Act), 5 U.S.C. § 552a, imposes information restrictions on the party managing the system of records. a. For purposes of the Act, when the Agreement involves the operation of a system of records on individuals to accomplish a Government function, the Recipient and any third party contractors, subrecipients 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. Page 51 Failure to comply with the terms of the Act or this Section 125 will make this Agreement subject to termination. b. As used in this Section 125: (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 Recipient on behalf of the Government including, but not limited to, his or her education, financial transactions, medical history, and criminal, or employment history and that contains his or her name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph. (3) "System of records" on individuals means a group of any records under the control of the Recipient on behalf of the Government from which information is retrieved by the name of the individual or by some identifying number, symbol or other identifying particular assigned to the individual. c. The Recipient 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 Recipient, its third party contractors, subrecipients, or their employees to accomplish a Government function; (2) To notify the Government when the Recipient or any of its third party contractors, subrecipients, or their employees anticipates operating a system of records on behalf of the Government in order to implement the Project, if such system contains information about individuals retrievable by the individual's name or other identifier assigned to the individual. A system of records subject to the Act may not be used in carrying out this Project until the necessary and applicable approval and publication requirements have been met. The Recipient, its third party contractors, subrecipients, and their employees agree to correct, maintain, disseminate, and use such records as required by the Act, and to comply with all applicable terms of the Act; (3) To include in every solicitation and in every third party contract and sub-agreement when the performance of work under that proposed third party contract or sub-agreement may involve the design, development, or operation of a system of Page 52 records on individuals to be operated under that third party contract or sub-agreement to accomplish a Government function, a Privacy Act notification informing the third party contractor, or subrecipient that it will be required to design, develop, or operate a system of records on individuals to accomplish a Government function subject to the Privacy Act of 1974, 5 U.S.C. § 552a, and Federal agency regulations, and that a violation of the Act may involve the imposition of criminal penalties; and (4) To include the text of Part II, Subsections 125.c(1) through 125.c(3) of this Agreement, in all third party contracts 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. Section 126. Substance Abuse. The Recipient agrees to comply with U.S. DOT regulations, "Drug-Free Workplace Requirements (Grants)," 49 C.F.R. Part 29, Subpart F; and other U.S. DOT and FTA regulations and guidance pertaining to substance abuse (drugs and alcohol) that may be promulgated. Section 127. State Safety Oversight of Rail Fixed Guideway Public Systems. To the extent applicable, the Recipient agrees to comply with any regulations issued pursuant to Section 128 of the Federal Transit Act, as amended, 49 U.S.C. app. § 1624, and other guidance that the FTA or the U.S. DOT may issue pertaining to safety oversight of rail fixed guideway public systems. Section 128. 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. Page 53