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2002-113 FILE REFERENCE FORM 2002-113 X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials Amended by Ordinance No. 2002-399 12/10/02 JR Amended by Ordinance No. 2003-220 07/15/03 JR Amended by Ordinance No. 2004-078 03/23/04 JR Amended by Ordinance No. 2004-177 06/15/04 JR Amended by Ordinance No. 2004-178 06/15/04 JR AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF DENTON AND MCDONALD TRANSIT ASSOCIATES, INC. TO PROVIDE PASSENGER MOTOR CARRIER TRANSIT MANAGEMENT AND OPERATION SERVICES FOR THE CITY; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Denton has advertised for, received and evaluated proposals for the management and operation of the City's passenger motor carder system based on the selection criteria set forth in the request for proposals; and WHEREAS, the City Council finds that McDonald Transit Associates, Inc. ("McDonald") offers the best value to the City based upon the selection criteria listed in the request for proposals; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble o f this ordinance are incorporated into the body of this ordinance as if fully set forth herein. SECTION 2. The agreement for management and operation of the City's passenger motor carrier system is awarded to McDonald. The City Manager, or his designee is hereby authorized to enter in the agreement for such services in substantially the same form as the agreement attached hereto and made a part hereof by reference (the "Agreement"). SECTION 3. The City Manager, or his designee, is authorized to expend funds provided for in the Agreement and to exercise the City's rights and obligations thereunder. SECTION 4. approval. This ordinance shall become effective immediately upon its passage and PASSED AND APPROVED this the -- day of ~-~-~' ,2002. EULINE BROCK, MAYOR ATTEST: BY: -z.: ~,,~-~7~ ' AGREEMENT TO PROVIDE MANAGEMENT AND OPERATION SERVICES FOR PASSENGER MOTOR CARRIER TRANSIT SYSTEM THIS AGREEMENT is entered into by and between the City of Denton, Texas, a Home Rule Municipal Corporation, (hereinafter referred to as "City") and McDonald Transit Associates, Inc., a Texas corporation (herein after referred to as "Company"). WHEREAS, the City and Company desire to enter into this Agreement to provide for the management and operation of the City's passenger motor carder transit system (called the "Link" or "Transit System"); and WHEREAS, McDonald is engaged in the business of providing management services for the operation of transit systems and has trained and experienced personnel available for that purpose; and NOW, THEREFORE, the parties hereto mutually agree as follows: L INDEPENDENT CONTRACTOR The City does hereby engage Company as an independent contractor to advise Client and to manage the operation of the Transit System in and about the City of Denton, Texas including additions to and extensions thereof, as provided herein. The Company agrees to supply such services in an efficient and economical manner. IL PURPOSE The purpose o£ this Agreement is to secure and provide all management and supervisory services, including the employment of drivers, dispatchers and other personnel reasonably required and necessary for the efficient operation of the Transit System under City's policies and in a way which will provide the quality and quantity of service as determined from time to time by City. Company will not, however, be expected to achieve results beyond the limits of the funding and other resources made available to it for management &the Transit System. ill. SCOPE OF SERVICES The Company will be responsible for the management and day-to-day operation of'the Transit System in an efficient and effective manner, and for providing consultation and recommendations to the City, in all areas of' public transportation. The Company shall be responsible to City, or its designee. All services to be rendered by the Company shall be subject to the reasonable supervision and control of City. The Company shall make recommendations, or City Page 1 may request information or recommendations, as to any areas of operation which are deemed appropriate and proper and the decision of City shall be binding and final in regards thereto. The advisory, management, and supervisory services to be furnished by the Company will include, but not be limited to: a. Overall management and operation of the Transit System and policy recommendations; b. Management continuity; c. Management and supervision of personnel development and training, and recruitment and employment as necessary; d. Monitoring and evaluation of all operations, systems, and procedures; e. Assist in budgeting, including preparation of an annual budget for the Transit System; £ Safety, loss prevention, and insurance; g. Schedules, transportation, and routing; h. Customer relations and promotion; i. Assist in the preparation and administration of state and federal grants; j. Administration of service contracts; k. Employee relations; 1. Selection and training of all non-maintenance transit employees; and m. Assist in the preparation of agenda items and back-up information for all governing board meetings. n. Transitional services with the current service provider. In addition, Client may, from time to time, request McDonald to perform specific transportation related studies or projections which are beyond the responsibilities set forth above. Page 2 IV. OBLIGATIONS OF COMPANY The Company shall in a satisfactory and proper manner perform services under this Agreement in an efficient manner and undertake and complete the services, and substantially as described in City's Application for Federal funding, which is incorporated herein by reference, filed with and approved by the U. S. Government, and in accordance with the terms and conditions of this Agreement, including: A. Providing transportation within the designated operating limits during the hours of 6:00 a.m. to 9:00 p.m., Monday through Friday and Saturdays from 9:00 a.m. to 6:00 p.m. except on holidays as described in the most current system map and ride guide. B. Charging a fee to each passenger in such amount as determined by the City Council. C. Providing transportation services within the city limits to the general public on fixed routes, as outlined in the most current system map and ride guide hereof as may be determined and revised from time to time by the City Council. D. Providing transportation services within the city limits to the disabled population on a door-to-door demand response system. E. Company shall maintain an on-time performance standard of no earlier and no later than 5 minutes from the scheduled time of arrival. Current standard is as follows: 95%+ exceptional, 90% - 95% satisfactory, 85% - 90% needs improvement, below 85% unsatisfactory. Company will be required to document and submit on-time performance. Submission will be included with the monthly invoice. F. Company shall establish, operate, and maintain an account system for these services that will allow for a tracing of funds and a review of the financial status of the Transit System and will permit authorized officials for the City to review Company books at any time. G. Company shall comply with all federal statutes and regulations promulgated thereunder applicable to the Company and the operation of the Transit System. H. Company shall comply with all provisions of the current annual contract and future contracts between the City and Texas Department of Transportation. I. Company shall reduce to writing all of its rules, regulations and policies, such as drug testing, training procedures, grievance policies, and compliance with the Americans with Disabilities Act, and file a copy with the City Manager or authorized representative along with any amendments, additions, or revisions whenever adopted. J. Company shall not enter into any contracts that would encumber the City funds for a period that would extend beyond the term of this Agreement. Page 3 K. Company shall promptly pay all bills when submitted unless there is a discrepancy in a bill; any errors or discrepancies in bills shall be promptly reported to the Assistant City Manager of Finance or their authorized representative for further direction. L. Company shall appoint a resident operations manager (the "Operations Manager") who will supervise and manage the day-to-day operations of the Transit System and who will be available to meet with the Public Transportation Manager and other City officials when requested. The initial and subsequent appointment of the Operations Manager will be with the advice and consent of the City. M. Company shall submit to the City copies of year-end audited financial statements in accordance with the provisions hereof. It shall also submit to the City an annual report to include year-end statistics of the number of riders, by route and ridership category, final financial data and other quantitative data enumerating milestones and accomplishments. The information in these reports should be as of September 30, each year, and should be submitted to the City no later than November 15, of the corresponding year. N. Company shall anticipate and be actively involved in all Transit System public hearings as required by the American with Disabilities Act and provide ridership input for system and route changes, at such times as required by law. O. On-time performance documentations shall be submitted to the Public Transportation Manager along with the request for re-imbursement. The City will provide the format in which this information is to be submitted. P. Company shall submit to the City copies of each accident report, the Police accident report, Company accident report and indication of drug policy action taken as soon as possible after the accident. A review of accidents will be conducted quarterly with the assistance of the City's Risk Manager. Q. Company shall submit evidence of compliance with various federal and state regulations pursuant to City's request. R. Company shall comply with all items listed in the Scope of Service in the Request for Proposals. S. Company shall: Comply with the Privacy Act of 1974, 5 U.S.C. § 552a and regulations thereunder (the "Privacy Act"), when performance under this Agreement involves the design, development, or operation of any system of records on individuals to be operated by the Company, its third party contractors, sub-grantees, sub-recipients, or their employees to accomplish a Government function; Page 4 Notify the City when the Company or any of its third party contractors, sub-grantees, sub-recipients, or their employees anticipates operating a system of records on behalf of the Government in providing services under this Agreement, 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 Privacy Act may not be used in the performance of this Agreement until the necessary and applicable approval and publication requirements have been met. The Company, its third party contractors, sub-grantees, sub- recipients, and their employees agree to correct, maintain, disseminate, and use such records in accordance with the terms of the Privacy Act, and to comply with all applicable terms of the Privacy ACt; Include in every solicitation and in every third party contract, sub- grant, and sub-agreement when the performance of work under that proposed third party contract, sub-grant, or sub-agreement may involve the design, development, or operation of a system of records on individuals to be operated under that third party contract, sub-grant, or sub-agreement to accomplish a government function, a Privacy Act notification informing the third party contractor, sub-grantee, or sub- recipient that it will be required to design, develop, or operate a system of records on individuals to accomplish a government function subject to the Privacy Act, and that a violation of the Privacy Act may involve the imposition of criminal penalties; and Include the text of Subsections 125.c (1) through 125.c (4) of Part II of the City's Agreement with the Government, in all third party contracts, sub-grants, and sub-agreements under which work for this Agreement is performed or which is awarded pursuant to this Agreement or which may involve the design, development, or operation of such a system of records on behalf of the Government. T. The Company shall comply with the following regulations: UMTA regulations, "Control of Drug Use in Mass Transportation Operations," 49 C.F.R. Part 653; Department of Transportation regulations, "Drug-Free Workplace Requirements (Grants)," 49 C.F.R. Part 29, Subpart F; and Department of Transportation regulations, "Procedures for Transportation Workplace Drug Testing Programs," 49 C.F.R. Part 40, and "Qualification of Drivers," 49 C.F.R. Part 391, Subpart h. U. Company shall obtain from its third party contractors, sub-grantees, and sub- recipients certifications required by Department of Transportation regulations, "Government-wide Debarment and Suspension (Non-procurement)," 49 C.F.R. Part 29, and otherwise comply with the requirements of those regulations. Page 5 V. Company acknowledges that if it makes a false, fictitious, or fraudulent claim, statement, submission, or certification to the Government in connection with this Project, the Government reserves the right to pursue the procedures and impose on the Company the penalties of 18 U.S.C. § 1001, 31 U.S.C. § § 231 and 3801 et seq., and/or 49 U.S.C. app. § 1607(h), and may be deemed by the Government to be appropriate. The terms of Department of Transportation regulations, "Program Fraud Civil Remedies," 49 CF.R. Part 31, are applicable to this Agreement. V. TERM OF AGREEMENT The term of this Agreement shall commence as of the effective date of this Agreement and shall continue through September 30, 2004. This Agreement may be renewed on an annual basis by written agreement &the parties for a maximum of three years. VL COMPENSATION A. For the satisfactory performance of the management and operation services under this Agreement the City shall pay the Company a fixed sum of $438,208.00 for the first fiscal year of October 1, 2002 through September 30, 2003 and a fixed sum of $425,032.00 for the second fiscal year of October 1, 2003 through September 30, 2004. Should the parties extend this Agreement for three additional years the fixed sums shall be $438,856.00 for October 1, 2004 through September 30, 2005, $456,282.00 for October 1, 2005 though September 30, 2006 and $474,698.00 for October 1, 2006 through September 30, 2007. The fixed sums set forth in this section are for those fixed costs described in the "CITY OF DENTON-TRANSIT BUDGET (FIXED COSTS)- TRANSPORTATION MANAGEMENT SERVICES" attached hereto and made a part here&by reference as Exhibit "A' (the "Fixed Sums"). Payment of the Fixed Sums shall be made in accordance with Section VI.C. below. B. In addition to the Fixed Sums the City shall reimburse the Company, as provided in Section VI.C. below, for its variable direct costs, without mark up, for those variable costs set forth in the "CITY OF DENTON-TRANSIT BUDGET (VARIABLE COSTS)-TRANSPORTATION MANAGEMENT SERVICES" attached hereto and made a part hereof by reference as Exhibit "B" (the "Direct Variable Sums"). The Direct Variable Sums shall not exceed the amounts set forth in Exhibit "B" unless the City approves such increases in writing in advance or the City increases the scope of the Transportation Services as provided below. It is anticipated that these requested increases will be addressed through an annual budget process where the Company will prepare a proposed budget for City approval. It is recognized that the Direct Variable Sums are based on the Transit System's current scope of schedules and routings and that an increase in the schedules and routings may require an increase in the Direct Variable Sums. In the event of an increase in the schedules and routings requiring additional Page 6 drivers or other personnel the maximum Direct Variable Costs will be increased accordingly based on the direct costs for adding such personnel. C. The Fixed Sums shall be paid in twelve equal monthly payments with the first payment being due and payable in November, 2002 within 15 days after the City receives an invoice for such monthly payment. All subsequent monthly payments shall be due and payable for each month thereafter within 15 days of the City's receipt of an invoice for such monthly payment. All invoices shall be submitted to the Public Transportation Manager no later than the 10th day of each month. On the same monthly invoice the Company shall include the amount of Direct Variable Costs incurred up to the date of the invoice (the "Monthly Direct Variable Costs"). The City shall pay the Monthly Direct Variable Costs within 15 days of the City's receipt of the invoice, unless payment is delayed because Company cannot justify that the Monthly Direct Variable Costs, or any portion thereof, is based on its actual direct cost, without markup. Once such justification is provided, the City shall promptly make the payment. D. Company shall make each request for payment in accordance with the provisions herein and all requests for payment shall be submitted to the Public Transportation Manager. E. It is expressly understood and agreed that (i) the funds payable under this Agreement are subject to receipt of monies fxom the State of Texas and the FTA. Should the funds be curtailed, or should the City be required to curtail its funding, City shall have the right to terminate this Agreement immediately without penalty. In no event under the terms of this Agreement will the total compensation to be paid exceed the amount of the City's FTA and State grants, as outlined in. the City's contracts with the State and the FTA. F. It is expressly understood that this Agreement in no way obligates the General Fund or any other monies or credits of the City of Denton. G. The City shall not be obligated or liable under this Agreement to any party other than the Company for payment of any monies or provision of any goods or services. VIII. VEHICLES~ VEItICLE MAINTENANCE, AND OFFICE SPACE The City shall provide all vehicles and maintenance of vehicles that are necessary for the operation of the Transit System. The City shall provide office space for the Company's Operation Manager and necessary support staff and suitable space or areas for the Company's drivers and dispatchers. The office space shall include utilities and telephones at the City's expense. Initially such office and areas will be located in the trailer adjacent to the fleet service area at the City's Service Center on Texas SWeet in the City of Denton, Texas. Page 7 VIII. EVALUATION The Company shall participate in an implementation and maintenance system whereby its services can be continuously monitored. The Company shall make available its financial records for review by the City at the City's discretion~ In addition, the Company shall provide the City copies of the following data and reports: A. All external or internal audits. Company shall submit a copy of the annual independent audit to City within ten (10) days of receipt. B. All external or internal evaluation reports. C. Company shall submit quarterly financial statements to City in Januaryl April, July, and September. Each statement shall include expenses and income for the preceding quarter and shall identify the number of participants in each transportation program the Company operates. Company shall submit such statements not later than the fifteenth day of the month following the end of each quarter. IX. DIRECTORS' MEETINGS During the term of this Agreement, the Company shall cause to be delivered to the City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof. Such notice shall be delivered to the City in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. Company shall afford City representatives access to all Board of Directors' meetings pertaining to Company operations under this agreement. Minutes of all meetings, pertaining to company operations under this agreement, of the Company's governing body shall be submitted to the City within ten (10) working days of approval. X. SUSPENSION OR TERMINATION The City may suspend or terminate this Agreement and payments to the Company, in whole or part, for cause. Cause shall include but not be limited to the following: A. Company's improper, misuse, or inept use of funds; B. Company's failure to comply with the terms and conditions of this Agreement; C. Company's submission of data or reports that are incorrect or incomplete in any material respect; Page 8 D. Appointment of a trustee, receiver or liquidator for all or a substantial part of the Company's property, or institution of bankruptcy, reorganization, rearrangement of or liquidation proceedings by or against the Company; or E. If for any reason the carrying out of this Agreement is rendered impossible or infeasible. In case of suspension, the City shall advise the Company, in writing, as to conditions precedent to the resumption of funding and specify a reasonable data for compliance. In case of termination, the Company shall remit to the City any unexpended City funds. Acceptance of these funds shall not constitute a waiver of any claim the City may otherwise have arising out of this Agreement. XI. EQUAL OPPORTUNITY A. Company shall submit for City approval a written plan for compliance with the Equal Employment and Affirmative Action Federal provisions, within one hundred twenty (120) days of the effective date of this Agreement. B. Company shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. C. Company shall furnish all information and reports requested by the City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, state and Federal rules and regulations. D. In the event of the Company's non-compliance with the Federal non- discrimination requirements, the Agreement may be cancelled, terminated, or suspended in whole or in part, and the Company may be barred fi.om further contracts with the City. XH. INDEMNIFICATION AND INSURANCE A. COMPANY SHALL INDEMNIFY AND HOLD HARMLESS THE CITY PROM ANY AND ALL CLAIMS AND SUITS ARISING OUT OF THE ACTIVITIES OP THE COMPANY~ ITS EMPLOYEES~ OR CONTRACTORS AND SAVE AND HOLD THE CITY HARMLESS FROM ALL LIABILITY~ INCLUDING COSTS, EXPENSES AND ATTORNEYS FEES~ FOR OR ON ACCOUNT OI*, ANY CLAIMS, AUDIT EXCEPTIONS, SUITS, OR DAMAGES OF ANY CHARACTER WHATSOEVER RESULTING IN WHOLE OR IN PART FROM THE PERFORMANCE OR OMISSION OF ANY ACT OF ANY EMPLOYEE, AGENT, REPRESENTIVE OR CONTRACTOR OF THE COMPANY, WHETHER OR NOT SUCH CLAIM, SUIT OR LIABILITY ARISES OUT OF ~ NEGLIGENT ACT OR OMISSION OF THE CITY. P~e9 B. Without limiting any of the other obligations or liabilities of the Company, the Company shall provide and maintain throughout the term of this Agreement, the minimum insurance coverage as indicated hereinafter. Upon the effective date of this Agreement, Company shall file with the City's Purchasing Department satisfactory certificates of insurance. Company shall not commence any work under this Agreement until it has fully complied with this Article by providing the required certificates of insurance. C. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted: 1. Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A. 2. Any deductibles or self-insured retentions shall be declared in the bid proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. 3. Liability policies shall be endorsed to provide the following: a. Name as additional insured the City of Denton, its Officials, Agents, Employees and volunteers. b. Such insurance is primary to any other insurance available to the additional insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. 4. All policies shall be endorsed to read: "SAID POLICY SHALL NOT BE CANCELLED, NONRENEWED OR MATERIALLY CHANGE WITHOUT 30 DAYS ADVANCED WRITTEN NOTICE BEING GIVEN TO THE OWNER (CITY) EXCEPT WHEN THE POLICY IS BEING CANCELLED FOR NONPAYMENT OF PREMIUM IN WHICH CASE 10 DAYS ADVANCE WRITTEN NOTICE IS REQUIRED". Page 10 5. Should any of the required insurance be provided under a claims-made form, Company shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. 6. Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Company shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. 7. Should any required insurance lapse during the term of this Agreement, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. D. All insurance policies proposed or obtained in satisfaction of this Agreement shall additionally comply with the following specifications, and shall be maintained in compliance with these additional specifications throughout the term of this Agreement or any extension thereof: 1. General Liability insurance with combined single limits of not less than $1,000,000 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. · Coverage B shall include personal injury. · Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent P~ell contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. 2. Company shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $1,000,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: any auto, or all owned, hired and non-owned autos. 3. Company shall purchase and maintain Worker's Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Worker's Compensation Commission (TWCC). 4. Professional liability insurance with limits not less than $1,000,000 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. 5. Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. 6. The Company shall file copies of all insurance policies with the City's Risk Manager and the Texas Department of Transportation and will not cancel any of the policies without the City's written approval. Page 12 7. All policies shall contain an agreement on the part of the insurer waiving the right to subrogation. 8. The insurance certificates furnished shall name the City as an additional insured. XIII, CONFLICT OF INTEREST A. The Company covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. The Company further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. The Company further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself, or others, particularly those with which he has family, business, or other ties. C. No officer, member, or employee of the City and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall (1) participate in any decision relating to the Agreement which affects his personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest; or (2) have any interest, direct or indirect, in this Agreement or the proceeds thereo£ XIV. NEPOTISM Company shall not employ in any paid capacity any person who is a member of the immediate family of any person who is currently employed by Company, or is a member of Company's governing board. The term "members of immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, step-parent, step-child, half-brother and half-sister. XV. SPECIAL CONDITIONS A. Company agrees to undertake, carry out, and complete the Project consistent with the terms and conditions determined by the Secretary of Labor to be fair and equitable to protect the interests of employees affected by the Project and meet requirements of Section 13(c) of Federal Transit Act, as amended, 49 U.S.C. App. Section 1609(c), and Department of Labor (DOL) guidelines set forth in 29 C.F.R. Part 215. These terms and conditions are identified in the letter of certification from DOL to FTA whose date is set forth in the Notification of Grant Approval to the City. The Company agrees to carry out the Grant in compliance with the conditions stated in that P~el3 DOL letter. That letter and any documents cited in the letter are incorporated herein by reference and made part of this Grant. B. Company agrees to comply with the requirements of Section 8 of the Federal Transit Act, as amended, 49 U.S.C. App. Section 1607, and any implementing regulations that may be issued thereunder. C. Company agrees that it will utilize its administrative process to solicit and consider public comment prior to raising fares or implementing a major reduction of service. D. Company agrees that the Federal Government and the City may, at least annually and more fi-equently in its discretion, either conduct or require the Company to have independently conducted, reviews and audits as the Government may deem appropriate pursuant to the provisions of Section 9(g) of the Federal Transit Act, as amended, 49 U.S.C. App. Section 1607a(g), and any regulations or guidelines that may be issued by the Government. E. Company agrees and assures that the rates charged elderly and handicapped persons during non-peak hours for transportation utilizing or involving the facilities and equipment financed pursuant to this Agreement will not exceed one-half of the rates generally applicable to other persons at peak hours, whether the operation of such facilities and equipment is by the Company or is by another entity under lease or otherwise. The Company 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 1I or Title XVIII of the Social Security Act. F. Company agrees to comply with applicable Buy America statutory and regulatory provisions. The Company may, without prior approval, procure an associated capital maintenance item eligible under Section 9(j) of the Federal Transit Act, 49 U.S.C. App. Section 1607a(j), by contract directly with the original manufacturer or supplier of the item to be replaced, provided that the Company first certifies in writing to the Government that: (1) such manufacturer or supplier is the only source of such item; and (2) the price of such item is no higher than the price paid for such item by like customers. G. Company shall implement a project management plan, as approved by the Federal Government, in accordance with the requirements of Section 23 of the Federal Transit Act, as amended, 49 U.S.C. App. Section 1619, and any implementing regulations that may be there-under. XVI. ADDITIONAL COVENANTS OF COMPANY A. Definitions. As used in this section: 1. Agreement means any Grant Agreement or Cooperative Agreement. Page 14 2. Application means the signed and dated proposal as may be amended for Federal financial assistance for the Project, together with all explanatory, supporting, and supplementary documents heretofore filed with and accepted and approved by the Government (UMTA) by or on behalf of the Company. 3. Approval, Authorization, Concurrence, Waiver means a conscious written act by an authorized official of the UMTA and City granting permission to the Company to perform or omit an action pursuant to this Agreement, which action may not be performed or omitted without such permission. An approval, authorization, concurrence, or waiver permitting the performance or omission of a specific action shall not constitute permission to perform or omit other similar actions unless such permission is clearly stated. Oral permission or interpretations have no legal force or effect. 4. UMTA Directive includes the most recent circulars, notices, and orders that present information about UMTA programs, application processing procedures, and guidance for administering approved Projects; there are also Department of Transportation directives that may be applicable to the Project. 5. Government means the United States of America, or its cognizant Company, the Department of Transportation (DOT), or its operating administration, the Urban Mass Transportation Administration (UMTA), used herein interchangeably. 6. Mass Transportation includes public transportation and means transportation by bus, rail or other conveyance, either publicly or privately owned, that provides general or special transportation service (but not including school bus, charter or sightseeing service) to the public on a regular and continuing basis. 7. Project means the task or set of tasks provided for in the Project Budget which the Company undertakes to perform pursuant to this Agreement. 8. Project or Program Budget means the most recently dated statement, approved by the Government, of the estimated total cost of the Project or Program, the items to be deducted from such total in order to calculate the estimated net Project cost, the maximum amount of Federal assistance for which the Company, through the City, is currently eligible, the specific items (including contingencies and relocation) for which the total may be spent, and the estimated cost of each of such items. 9. Secretary_ means Secretary of the Department of Transportation or his or her duly authorized designee. 10. UMTA means the Urban Mass Transportation Administration of the U.S. Department of Transportation. 11. City means City of Denton, Texas. Page 15 B. In the performance of its obligations pursuant to this Agreement, the Company agrees to comply with all applicable provisions of Federal, State, and local laws, regulations, and UMTA directives. The Company understands and agrees that Federal laws, regulations, policies, and related administrative practices in force and made applicable to this Agreement on the date of execution may be modified from time to time, and that the most recent of such provisions will govern administration of this Agreement at any pa~icular time, except if there is sufficient evidence in the Agreement of a contrary intent. Such contrary intent might be evidenced by express language in any amendments to the Agreement. Likewise, new Federal laws, regulations, policies and administrative practices may be established after the date of execution and thereafter be applied to this Agreement. As may be necessary to achieve compliance with these requirements, the Company shall include notice of such requirements in all third party contracts, sub-grants, and other sub-assistance agreements financed with Government (UMTA) assistance. All limits or standards set forth in this Agreement to be observed in the performance of the Project are minimum requirements. If there is a conflict between Federal and State or local requirements, the Company shall inform the City and the Government (UMTA) in order that an appropriate resolution may be arranged. C. Company shall submit to the City such data, reports, records, contracts, and other documents relating to the Project as the City may, during the course of the Project and for three years thereafter, require. The Company shall retain intact, for three years following Project close-out, all Project documents, financial records, and supporting documents and make these records available to the City as the City may require. D. Company shall immediately notify the City of any change in law, conditions, or any other event that may significantly affect its ability to perform the Project in accordance with the terms of this Agreement. In addition, the Company shall immediately notify the City of any decision pertaining to the Company's conduct of litigation that may affect the City's interests in the Project or the City's administration or enforcement of applicable Federal laws or regulations. Before the Company may join the City as a named party to litigation, for any reason, the Company agrees to first inform the City; this proviso applies to any type of litigation whatsoever, in any forum. E. Absent the express, written consent of the Government or the City and notwithstanding any concurrence by the Government in or approval of the award of any contract or subcontract or the solicitation thereof, neither the Government nor the City shall be subject to any obligations or liabilities by contractors of the City or their subcontractors or any other person not a party to this Agreement in connection with the performance of this Project. F. Company shall prepare and maintain a Project Budget. A copy of the said budget shall be submitted to the City by March 1 of each year. The Company shall carry out the Project and shall incur obligations against and make disbursements of Project funds only in conformity with the latest approved budget for the Project. The Project Budget may be revised, from time to time, to the extent permitted by and in conformance with the requirements of the Government. Page 16 G. Company shall establish and maintain either a separate set of accounts or accounts, within the framework of an established and approved accounting system, for the Project in a manner consistent with 49 C.F.R. § 18.20, or OMB Circular A-110, as amended, as may be applicable. H. Consistent with the provisions of 49 C.F.R. § 18.21, or OMB Circular A-110, as amended, as may be applicable, the Company shall record in the Project Account, and deposit in a bank or trust company all Project payments it receives from the City pursuant to this Agreement and all other funds provided for, accruing to, or otherwise received on account of the Project, (Project Funds). A separate bank account may be required when drawdowns are made by letter of credit. The Company is encouraged to use banks that are owned at least 50 percent by minority group members. I. Expenditures made by the Company shall be reimbursable as allowable costs to the extent that they meet all the requirements set forth below. They must: 1. Conform with the Project Description and the Project Budget and all other terms of the Agreement; 2. Be necessary in order to accomplish the Project; 3. Be reasonable in amount for the goods or services purchased; 4. Be actual net costs to the Company (i.e., the price paid minus any refunds, rebates, or other items of value received by the Company that have the effect of reducing the cost actually incurred, excluding Program Income); 5. Be incurred (and be for work performed) after the date of this Agreement, unless specific authorization from the Government (UMTA) or the City to the contrary is received; 6. Unless permitted otherwise by Federal statute or regulation, conform with Federal guidelines or regulations and Federal cost principles as set forth in the standards of OMB Circular A-122, Revised, "Cost Principles for Nonprofit Organizations," and the standards of 48 C.F.R. Part 31 are applicable; 7. Be satisfactorily documented; and 8. Be treated uniformly and consistently under accounting principles and procedures approved and prescribed by the Government or City for the Company; and those approved or prescribed by the Company for its contractors. J. All costs charged to the Project, including any approved services contributed by the Company or others, shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers evidencing in detail the nature and propriety of Page 17 the charges. The Company shall also maintain accurate records of all Project Funds derived from the implementation of the Project. K. Any check or order drawn by the Company with respect to any item that is or will be chargeable against the Project Account will be drawn only in accordance with a properly signed voucher then on file in the office of the Company stating in proper detail the purpose for which such check or order is drawn. All checks, payrolls, invoices, contracts, vouchers, orders, or other accounting documents pertaining in whole or in part to the Project shall be clearly identified, readily accessible, and, to the extent feasible, kept separate and apart from all other such documents. L. The Company shall permit the Secretary and the Comptroller General of the United States, or any of their duly authorized representatives to inspect all work, materials, payrolls, and other data and records with regard to the Project, and to audit the books, records, and accounts of the Company and its contractors with regard to the Project. In the case of contracts awarded under other than competitive bidding procedures as defined by the Secretary of Transportation, the Company shall require those contractors to permit the Secretary of Transportation and the Comptroller General of the United States, or any of their duly authorized representatives to inspect all work, materials, payrolls, and other data and records with regard to the Project, and to audit the books, re-cords, and accounts pertaining to such contracts with regard to the Project. If the City is found to be responsible for meeting the audit requirements of 49 C.F.R. § 18.26 and OMB Circular A-128 or any revision or supplement thereto, the Company shall comply with these requests. The Company is responsible for obtaining any audits required by the Government (UMTA). Closeout of the Project will not alter the Company's audit responsibilities. 1. The Company shall report its cash disbursements and balances in a timely manner as requked by the City or Government. 2. The Company shall provide for effective control and accountability for all Project funds consistent with Federal requirements and procedures for use of the letter of credit. 3. The Company shall impose on its sub-recipients all applicable requirements of Subsections 105.b. (1) (a), (b), and (c) of Part II of this Agreement. M. Neither the Company nor any sub-recipient may use Federal assistance funds for publicity or propaganda purposes designed to support or defeat legislation pending before Congress. N. Company agrees that: 1. Any interest earned by the Company on Federal funds must be remitted to the Government, except as provided by the Intergovernmental Cooperation Act, 31 U.S.C. § 6503(a), orthe Indian Self-Determination Act, 23 U.S.C. § 450. Page 18 2. Upon notice by the Government (UMTA) to the City of specific amounts due the Government, the Company shall promptly remit any excess payment of amounts or disallowed costs to the Government (UMTA), including any interest due thereon. O. The Company recognizes that the Government (LrMTA) reserves the right to de-obligate unspent Federal funds prior to Project dose-out, if such occurs, City may terminate this Agreement without penalty. P. Company agrees that, upon written notice, the City may suspend or terminate all or part of the financial assistance provided herein if the Company is, or has been, in violation of the terms of this Agreement, or if the Government or the City determines that the purposes of the statute under which the Project is authorized would not be adequately served by continuation of Federal financial assistance for the Project. Any failure to make reasonable progress or other violation of the Agreement that significantly endangers substantial performance of the Project shall be deemed to be a breach of this Agreement. If the Company's failure either to make adequate progress or to make reasonable use of the Project real property, facilities, or equipment, or to honor the terms of this Agreement is determined by the City to be willful or unreasonable, the City reserves the right to require the Company to refund to the City the entire amount of Project funds provided by the City or any lesser amount as may be determined by the City. Q. Within 30 days of the termination of this Agreement, the Company shall submit a final Financial Status Report (Standard Form 269), a certification or summary of Project expenses, and third party audit reports, as applicable. Company agrees that either the Government (UMTA) or a Company designated by the Government (UMTA) will perform a final audit of the Project to determine the allowability of costs incurred to determine settlement of the Federal assistance for the Project in accordance with Part I of this Agreement. If City has made payments to the Company in excess of the total amount of the Federal assistance due, the Company shall promptly remit to the City that excess and interest as may be required by Subsections 105.b. and 105.e. of Part II of the City's Agreement with the Government. Project closeout occurs when the City notifies the Company and forwards the final Federal assistance payment or when the Company's remittance of the proper refund has been acknowledged by the City. Project closeout shall not invalidate any continuing obligations imposed on the Company by this Agreement or by the City's final notification or acknowledgment. R. The following conditions are applicable to real property, equipment, and supplies financed under this Agreement: 1. The Company agrees to observe the property management standards set forth in 49 C.F.R. §§ 18.31, 18.32, and 18.33, or OMB Circular A-Il0, Attachment N, as appropriate, as now or hereafter amended, and any guidelines or regulations that the Government may issue. Exceptions to the requirements of 49 C.F.R. §§ 18.31, 18.32, Page 19 and 18.33, and to OMB Circular A-110, Attachment N must be specifically approved by the City. The City resewes the right to require the Company to transfer title to any equipment financed with Federal assistance made available by this Agreement as set forth in 49 C.F.R. § 18.32(g) or OMB Circular A-110, Attachment N, as may be appropriate. The City also reserves the right to direct the disposition of real property or equipment financed with Federal assistance funds made available under this Agreement, as set forth in 49 C.F.R. §§ 18.31 and 18.32 or OMB Circular A-Il0, Attachment N, as may be applicable. 2. The Company agrees to maintain the Project real property, equipment, and supplies in good operating order, and in accordance with any guidelines, directives, or regulations that UMTA may issue. If, during the period, any Project real estate, equipment, or supplies are not used in mass transportation service, whether by planned withdrawal, misuse or casualty loss, the Company shall immediately notify the City. Unless otherwise approved, the Company shall remit to the City a proponionai amount of the fair market value, if any, of the real property, equipment, or supplies whose aggregate value exceeds $5,000, which value shall be determined on the basis of the ratio of the Federal assistance awarded by the Government to the actual cost of the Project. The following guidelines shall be followed in determining the fair market value. Unless otherwise approved in writing by UMTA, the fak market value of equipment and supplies will be the value of that property at the time immediately before the reason occurred that prompted the decision to withdraw that property from transit use. For example, in the event of loss of or damage to the property by casualty or fire, the fair market value of the property will be calculated immediately before the loss or damage, irrespective of the extent of insurance coverage. In the case of equipment and supplies, fair market value shall be based on straight line depreciation of the equipment and supplies, based on the industry standard for useful life, irrespective of the reason for withdrawal of that property from transit use. In the case of real property, the fair market value shall be determined by competent appraisal based on an appropriate date as determined by the Government consistent with the standards of 49 C.F.R. Part 24. The City, however, reserves the right to require another method of valuation to be used if the Government (UMTA) finds that special ckcumstances so requke to assure the protection of the Federal investment. In unusual circumstances, the Company may request that another reasonable method of determining fair market value be used, including but not limited to accelerated depredation, comparable sales, or established market values. In determining whether to approve an alternate method, the City may consider any action taken, omission made or unfortunate occurrence suffered by the Company with respect to the preservation or conservation of the value of the real property, equipment, or supplies that, for any reason, have been withdrawn fi-om service. 3. The Company further agrees that the Project real propemy, equipment, and supplies shall be used for the provision of mass transportation service within the area and in the manner set forth in the Project Description. Should the Company unreason-ably delay in or refrain fi-om using Project real estate or equipment, in the manner set forth in the Project Description, the City reserves the right to require the Company to return the entire amount of the Federal assistance expended on that real Page 20 estate or equipment. The Company shall keep satisfactory records with regard to the use of the real property, equipment, and supplies, and submit to the City upon request such information as may be required to assure compliance with this Section and shall immediately notify the City in all cases in which Project real property, equipment, or supplies are used in a manner substantially different from what is set forth in the Project Description. The City reserves the right to require the Company to restore Project real property, equipment, or supplies or pay for damage to Project real property, equipment, or supplies as a result of abuse or misuse of such property with the Company's knowledge and consent. S. Company may not execute any transfer of title, lease, lien, pledge, mortgage, encumbrance, contract, grant anticipation note, alienation, or other obligation that in any way affects the Federal interest in any Project real property or equipment, nor may the Company obligate itself, in any other manner, to any third party with respect to Project real property or equipment, unless such transfer of title, lease, lien, pledge, mortgage, encumbrance, contract, grant anticipation note, alienation, or other obligation is expressly authorized in writing by the City and Government (UMTA); nor may the Company, by any act or omission, adversely affect the Federal interest or impair the Company's continuing control over the use of Project real property or equipment. T. Civil Rights 1. Equal Employment Opportunity - The following requirements are applicable to the Project: (a) In connection with Project implementation, the Company may not discriminate against any employee or applicant for employment because of race, color, age, creed, sex, or national origin. The Company shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, with-out regard to their race, color, religion, sex, age, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Company shall insert the foregoing provision (modified only to show the particular contractual relationship) in all of its contracts in connection with the development or operation of the Project, except contracts for standard commercial supplies or raw materials and construction contracts, and shall require all such contractors to insert a similar provision in all subcontracts, except subcontracts for standard commercial supplies or raw materials. (b) If, as a condition of assistance, the Company has submitted, and the City has approved, an equal employment oppommity program that the Company 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 Company of its failure to carry out the approved Page 21 program, the Government or the City will impose such remedies as it may deem appropriate, which remedies may include termination of financial assistance as set forth in Section 106 of Part II of the City's Agreement with the Government or other measures that may affect the ability of the Company to obtain future financial assistance under the Urban Mass Transportation Act of 1964, as amended, or title 23, United States Code (Highways). 2. Small, Minority and Women's Business Enterprise. The following provisions are applicable to the Project: (a) The Company shall be responsible for meeting the requirements regarding participation by minority business enterprises (DBE) in Department of Transportation programs set forth at 49 C.F.R. Part 23. Pursuant to the requirements of 49 C.F.R. § 23.43, the following clauses must be inserted in each third party contract: (i) POLICY. IT IS THE POLICY OF THE DEPARTMENT OF TRANSPORTATION THAT MINORITY BUSINESS ENTERPRISES, AS DEFINED IN 49 C.F.R. PART 23, SHALL HAVE THE MAXIMUM OPPORTUNITY TO PARTICIPATE IN THE PERFORMANCE OF CONTRACTS FINANCED IN WHOLE OR IN PART WITH FEDERAL FUNDS UNDER THIS AGREEMENT. CONSEQUENTLY, THE DBE REQUIRE-MENTS OF 49 C.F.R. PART 23 APPLY TO THIS AGREEMENT. (ii) DBE OBLIGATION. THE COMPANY AND ITS CONTRACTORS AGREE TO ENSURE THAT MINORITY BUSINESS ENTERPRISES AS DEFINED IN 49 C.F.R. PART 23 HAVE THE MAXIMUM OPPORTUNITY TO PARTICIPATE IN THE PERFORMANCE OF CONTRACTS AND SUBCONTRACTS FINANCED 1N WHOLE OR IN PART WITH FEDERAL FUNDS PROVIDED UNDER THIS AGREEMENT. IN THIS REGARD ALL AGENCIES AND CONTRACTORS SHALL TAKE ALL NECESSARY AND REASON-ABLE STEPS IN ACCORDANCE WITH 49 C.F.R. PART 23 TO ENSURE THAT MINORITY BUSINESS ENTERPRISES HAVE THE MAXIMUM OPPORTUNITY TO COM-PETE FOR AND PERFORM CONTRACTS. COMPANY AND ITS CONTRACTORS SHALL NOT DISCRIMINATE ON THE BASIS OF RACE, COLOR, NATIONAL ORIGIN OR SEX IN THE AWARD AND PERFORMANCE OF CONTRACTS ASSISTED BY THE DEPARTMENT OF TRANSPORTATION. (b) The Company shall advise each sub-recipient, contractor, and subcontractor that failure to carry out the requirements set forth in 49 C.F.R. § 23.43(a) shall constitute a breach of contract and, after the notification of the Department of Transportation, may result in termination of the Agreement or contract by the Company or such remedy as the Company deems appropriate. Page 22 (c) The Company shall take action concerning lessees as follows: (i) The Company shall not exclude DBEs from participation in business opportunities by entering into long-term, exclusive agreements with non-DBEs for the operation of major transportation related activities for the provision of goods and services to the facility or to the public on the facility. (ii) If the Company is required to submit affirmative action programs under 49 C.F.R. § 23.41(a)(2) or 49 C.F.R. § 23.41(a)(3) and has business opportunities for lessees, it shall submit for approval to the Department of Transportation with its programs overall goals for the paxticipation as lessees of finns owned and controlled by DBEs. These goals shall be for a specified period of time and shall be based on the factors listed in 49 C.F.R. § 23.45 (g)(5). The Company shall 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 Company shall submit new overall goals to the Department of Transportation for approval. If Company fails to meet its goals for DBE lessees, it shall demonstrate to the City and the Government in writing that it made reasonable efforts to meet the goals. (iii) Except as provided in this section, the Company is required to include lessees in affirmative action programs. Lessees themselves are not subject to the requirements of this Part, except for the requirement under 49 C.F.R. § 23.7 that lessees avoid discrimination against DBEs. 3. Title VI Civil Rights ACt of 1964. The Company shall comply and shall assure the compliance by contractors and subcontractors under this Project with all requirements of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; Department of Transportation regulations, "Nondiscrimination in Federally-Assisted Programs of the Department of Transportation -- Effectuation of Title VI of the Civil Rights ACt," 49 C.F.R. Part 21; and the Assurance by the Company pursuant thereto. 4. Nondiscrimination on the Basis of Handicap. The Company shall ensure that all fixed facility construction or alteration and all new equipment included in the Project shall comply with Department of Transportation regulations, "Nondiscrimination on the Basis of Handicap in Programs and Activities, Receiving or Benefiting from Federal Financial Assistance," 49 C.F.R. Part 27, and UMTA regulations, "Transportation for Elderly and Handicapped Persons," 49 C.F.R. Part 609, and any amendments thereto that may be issued. 5. Competition in Procurement. The Company agrees to comply with the Procurement Standards requirements set forth at 49 C.F.R. § 18.36 or OMB Circular A- ll0, Attachment O, as may be applicable; and with any supplementary directives or regulations including UMTA Circular 4220.1B; and any revisions thereof, as may be applicable. IJMTA reserves the right to review the Company's technical specifications Page 23 and requirements, where such review is necessary for proper Project administration. The Company further agrees that, notwithstanding the requirements of Section 121 of Part II of the City's Agreement with the Government, no Federal funds shall be used to support procurements utilizing exclusionary or discriminatory specifications. 6. Force Account. The City and Government (UMTA) reserves the right to determine the extent of its participation in force account costs. 7. Settlement of Third Party Contract Disputes or Breaches. The U.S. Government has a vested interest in the settlement of any dispute, default, or breach involving any federally-assisted third party contract. Company agrees that the Government retains the right to a proportionate share, based on the percentage of the Federal share committed to the Project, of any proceeds derived from any third party recovery. Therefore the Company shall avail itself of all legal rights available under any third party con-tract. The Company shall notify the City and Government of any current or prospective litigation or major disputed claim pertaining to any third party contract. The City and Government reserves the right to concur in any compromise or settlement of any claim by the Company involving any third party contract. If the third party contract contains a liquidated damages provision, any liquidated damages recovered shall be credited to the Project account involved unless the Government permits otherwise. In the event the Company wishes to join the Government as a named party to litigation, for any reason, the Company agrees to inform the City Government before doing so; this proviso applies to any type of litigation whatsoever, in any forum. 8. Ethics. The Company shall maintain a written code or standards of conduct that shall govern the performance of its officers, employees, board members, or agents engaged in the award and administration of contracts supported by Federal funds. Such code or standards shall provide that no employee, officer, board member, or agent of the Company may participate in the selection, award, or administration of a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when any of the parties set forth below has a financial or other interest in the firm selected for award: (i) The employee, officer, board member, or agent; (ii) Any member of his or her immediate family; (iii) His or her partner; or (iv) An organization that employs, or is about to employ, any of the above. The code or standards shall also provide that the Company's officers, employees, board members, or agents may neither solicit nor accept gratuities, favors or anything of monetary value from present or potential contractors or sub-recipients. The Company may set minimum rules where the financial interest is not substantial or the gift is an Page 24 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 Company's officers, employees, board members, or agents, or by contractors or sub-recipients or their agents. 9. Interest of Members of or Delegates to Congress. No member of or delegate to the Congress of the United States shall be admitted to any share or part of this Project or to any benefit therefrom. U. CONSTRUCTION CONTRACTS The following provisions are applicable to federally assisted construction contracts: 1. Nondiscrimination. Pursuant to the regulations of the Secretary of Labor at 41 C.F.R. §§ 60-1.4(b)(1) and 60-1.4(c): (a) The Company hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in the regulations of the Secretary of Labor at 41 C.F.R. Chapter 60, that is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, cooperative agreement, contract, loan, insurance, or guarantee, or under-taken pursuant to a Federal program involving the grant, cooperative agreement, contract, loan, insurance, or guarantee, the following equal opportunity clause: DLrRING THE PERFORMANCE OF THIS CONTRACT, THE CONTRACTOR AGREES AS FOLLOWS: (i) THE CONTRACTOR WILL NOT DISCRIMINATE AGAINST ANY EMPLOY-EE OR APPLICANT FOR EMPLOYMENT BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN. THE CONTRACTOR WILL TAKE AFFIRMATIVE ACTION TO ENSURE THAT APPLICANTS ARE EMPLOYED, AND THAT EMPLOYEES ARE TREATED DURING EMPLOYMENT WITHOUT REGARD TO THEIR RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN. SUCH ACTION SHALL INCLUDE, BUT NOT BE LIMITED TO THE FOLLOWING: EMPLOYMENT, UPGRADING, DEMOTION, OR TRANSFER; RECRUITMENT OR RECRUITMENT ADVERTISING; LAYOFF OR 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. Page 25 (ii) THE CONTRACTOR WILL, IN ALL SOLICITATIONS OR ADVERTISEMENTS FOR EMPLOYEES PLACED BY OR ON BEHALF OF THE CONTRACTOR, STATE THAT ALL QUALIFIED APPLICANTS WILL RECEIVE CONSIDERATION FOR EMPLOYMENT WITHOUT REGARD TO RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN. (iii) THE CONTRACTOR WILL SEND TO EACH LABOR UNION OR REPRESENTATIVE OF WORKERS WITH WHICH IT HAS A COLLECTIVE BARGAINING AGREEMENT OR OTHER CONTRACT OR UNDERSTANDING, A NOTICE TO BE PROVIDED ADVISING THE LABOR UNION OR WORKERS' REPRESENTATIVE OF THE CONTRACTOR'S COMMITMENTS UNDER SECTION 202 OF EXECUTIVE ORDER 11246 OF SEPTEDBER 24, 1965, AND SHALL POST COPIES OF THE NOTICE IN CONSPICUOUS PLACES AVAILABLE TO EMPLOYEES AND APPLICANTS FOR EMPLOYMENT. (iv) THE CONTRACTOR WILL COMPLY WITH ALL PROVISIONS OF EXECUTIVE ORDER 11246 OF SEPTEDBER 24, 1965, AND OF THE RULES, REGULATIONS, AND RELEVANT ORDERS OF THE SECRETARY OF LABOR. (v) THE CONTRACTOR WILL FURNISH ALL INFORMATION AND REPORTS REQUIRED BY EXECUTIVE ORDER 11246 OF SEPTEDBER 24, 1965, AND BY THE RULES, REGULATIONS, AND ORDERS OF THE SECRETARY OF LABOR, OR PURSUANT THERETO, AND WILL PERMIT ACCESS TO ITS BOOKS, RECORDS AND ACCOUNTS BY THE SECRETARY OF LABOR AND UMTA FOR PURPOSES OF INVESTIGATION TO ASCERTAIN COMPLIANCE WITH SUCH RULES, REGULATIONS, AND ORDERS. (vi) IN THE EVENT OF THE CONTRACTOR'S NONCOMPLIANCE WITH THE NONDISCRIMINATION CLAUSES OF THIS AGREEMENT OR WITH ANY OF SUCH RULES, REGULATIONS, OR ORDERS, THIS AGREEMENT MAY BE CANCELLED, TERMINATED, OR SUSPENDED IN WHOLE OR IN PART AND THE CONTRACTOR MAY BE DECLARED INELIGIBLE FOR FURTHER FEDERAL OR FEDERALLY ASSISTED CONTRACTS IN ACCORDANCE WITH PROCEDURES AUTHORIZED IN EXECUTIVE ORDER 11246 OF SEPTEDBER 24, 1965, AND SUCH OTHER SANCTIONS MAY BE IMPOSED AND REMEDIES 1NVOKED AS PROVIDED IN EXECUTIVE ORDER 11246 OF SEPTEDBER 24, 1965, OR BY RULE, REGULATION, OR ORDER OF THE SECRETARY OF LABOR, OR AS OTHERWISE PROVIDED BY LAW. Page 26 (vii) 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 11246 OF SEPTEDBER 24, 1965, SO THAT SUCH PROVISIONS SHALL BE BINDING UPON EACH SUBCONTRACTOR OR VENDOR. THE CONTRACTOR WILL TAKE SUCH ACTION WITH RESPECT TO ANY SUBCONTRACT OR PURCHASE ORDER AS THE SECRETARY OF LABOR OR UMTA MAY DIRECT AS A MEANS OF ENFORCING SUCH PROVISIONS, INCLUDING SANCTIONS FOR NONCOMPLIANCE; PROVIDED, HOWEVER, THAT IF A CONTRACTOR BECOMES INVOLVED IN, OR IS THREATENED WITH, LITIGATION WITH A SUBCONTRACTOR OR VENDOR AS A RESULT OF SUCH DIRECTION, THE CONTRACTOR MAY REQUEST THE UNITED STATES TO ENTER INTO SUCH LITIGATION TO PROTECT THE INTERESTS OF THE UNITED STATES. (b) The Company shall assure that each nonexempt prime contractor and subcontractor shall include in each nonexempt contract the requirements of Subsection 115. a. (1) (a) through (g) of Part II of this Agreement. (c) The Company 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 Company so participating is a State or local government, this equal opportunity clause does not apply to any Company, instrumentality or subdivision of such government that does not participate in work under the Agreement. (d) The Company agrees that it will assist and cooperate actively with UMTA and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor; that it will provide UMTA and the Secretary of Labor such information as they may require for the supervision of such compliance; and that it will otherwise assist UMTA in discharging its primary responsibility for securing compliance. (e) The Company further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, as amended, with any contractor that is debarred from or has not demonstrated eligibility for 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 UMTA or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the Company agrees that if it fails or refuses to comply Page 27 with these undertakings, UMTA may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this Agreement; refrain from extending any further assistance to the Company under the program with respect to which the failure or refusal occurred until satisfactory assurance of future compliance has been received from such Company; and refer the case to the Department of Justice for appropriate legal proceedings. 2. Specifications. The Company hereby agrees that it will incorporate or cause to be incorporated the specifications set forth below into all Federal or federally assisted construction contracts, or modifications thereof, in excess of $I0,000 to be performed in geographical areas designated by the Director, Office of Federal Contract Compliance Programs of the Department of Labor pursuant to the regulations of the Secretary of Labor at 41 C.F.R. § 60-4.3 and in construction subcontracts in excess of $10,000 necessary in whole or in part to the performance of non-construction Federal contracts and subcontracts covered under Executive Order 11246: STANDARD FEDERAL EQUAL CONSTRUCTION CONTRACT ORDER 11246): EMPLOYMENT SPECIFICATIONS OPPORTUNITY (EXECUTIVE (1) AS USED 1N 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 NUDBER" MEANS THE FEDERAL SOCIAL SECURITY NUDBER 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 HISPAmC ORIGIN); (ii) HISPANIC (ALL PERSONS OF MEXICAN, PUERTO RICAN, CUBAN, CENTRAL OR SOUTH AMERICAN OR OTHER SPANISH CULTURE OR ORIGIN, REGARDLESS OF RACE); Page 28 (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 ON ALL WORK IN THE PLAN AREA (INCLUDING GOALS AND TIMETABLES) SHALL BE IN ACCORDANCE WITH THAT PLAN FOR THOSE TRADES WI-IICH 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 ACHI~VE 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 ACH]EVE 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 Page 29 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 ACHI~.VE 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 I. FNDER THESE SPECIFICATIONS, EXECUTIVE ORDER 11246, OR THE REGULATIONS PROMULGATED PURSUANT THERETO. (6) IN ORDER FOR THE NONWORKING TRAINING HOURS OF APPRENTICES AND TRAINEES TO BE COUNTED 1N MEETING THE GOALS, SUCH APPRENTICES AND TRAINEES MUST BE EMPLOYED BY THE CONTRACTOR DURING THE TRAINING PERIOD, AND THE CON-TRACTOR MUST HAVE MADE A COMMITMENT TO EMPLOY THE APPRENTICES AND TRAINEES AT THE COMPLETION OF THEIR TRAINING, SUBIECT TO THE AVAILABILITY OF EMPLOYMENT OPPORTUNITIES. TRAINEES MUST BE TRAINED PURSUANT TO TRAINING PROGRAMS APPROVED BY THE U.S. DEPARTMENT OF LABOR. (7) THE CONTRACTOR SHALL TAKE SPECIFIC AFFIRMATIVE ACTIONS TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY. THE EVALUATION OF THE 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 Page 30 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 CON-TRACTOR'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. (e) MAINTAIN A CURRENT FILE OF THE NAMES, ADDRESSES AND TELEPHONE NUDBERS OF EACH MINORITY AND FEMALE OFF-THE-STREET APPLICANT AND MINORITY OR FEMALE REFERRAL FROM A UNION, A RECRUITMENT SOURCE OR COMMUNITY ORGANIZATION AND OF WHAT ACTION WAS TAKEN WITH RESPECT TO EACH SUCH INDIVIDUAL. IF SUCH INDIVIDUAL WAS SENT TO THE UNION HIRING HALL FOR REFERRAL AND WAS NOT REFERRED BACK TO THE CONTRACTOR BY THE UNION OR, IF REFERRED, NOT EMPLOYED BY THE CONTRACTOR, THIS SHALL BE DOCUMENTED IN THE FILE WITH THE REASON THEREFOR, ALONG WITH WHATEVER ADDITIONAL ACTIONS THE CONTRACTOR MAY HAVE TAKEN. (d) PROVIDE IMMEDIATE WRITTEN NOTIFICATION TO THE DIRECTOR WHEN THE UNION OR UNIONS WITH WHICH THE CONTRACTOR HAS A COLLECTIVE BARGAEN1NG AGREEMENT HAS NOT REFERRED TO THE CONTRACTOR A MINORITY PERSON OR WOMAN SENT BY THE CONTRACTOR, OR WHEN THE CONTRACTOR HAS OTHER INFORMATION THAT THE UNION REFERRAL PROCESS HAS IMPEDED THE CONTRACTOR'S EFFORTS TO MEET ITS OBLIGATIONS. Page 31 (e) DEVELOP ON-THE-JOB TRAINING OPPORTUNITIES AND/OR PARTI-CIPATE 1N TRAINING PROGRAMS FOR THE AREA WHICH EXPRESSLY INCLUDE MRqORITIES AND WOMEN, INCLUDING UPGRADING PROGRAMS AND APPRENTICESHIP AND TRAINEE PROGRAMS RELEVANT TO THE CONTRACTOR'S EMPLOYMENT NEEDS, ESPECIALLY THOSE PROGRAMS FUNDED OR APPROVED BY THE DEPARTMENT OF LABOR. THE CONTRACTOR SHALL PROVIDE NOTICE OF THESE PRO-GRAMS TO THE SOURCES COMPILED UNDER (7)(b) ABOVE. (f) DISSEMINATE THE CONTRACTOR'S EEO POLICY BY PROVIDING NOTICE OF THE POLICY TO UNIONS AND TRAINING PROGRAMS AND REQUESTING THEIR COOPERATION IN ASSISTING THE CONTRACTOR IN MEETING ITS EEO OBLIGATIONS; BY INCLUDING IT IN ANY POLICY MANUAL AND COLLECTIVE BARGAINING AGREEMENT; BY PUBLICIZING IT IN THE COMPANY NEWSPAPER, ANNUAL REPORT, ETC.; BY SPECIFIC REVIEW OF THE POLICY WITH ALL MANAGEMENT PERSONNEL AND WITH ALL MINORITY AND FEMALE EMPLOYEES AT LEAST ONCE A YEAR; AND BY POSTING THE COMPANY EEO POLICY ON BULLETIN BOARDS ACCESSIBLE TO ALL EMPLOYEES AT EACH LOCATION WHERE CONSTRUCTION WORK IS PERFORMED. (g) REVIEW, AT LEAST ANNUALLY, THE COMPANY'S EEO POLICY AND AFFIRMATIVE ACTION OBLIGATIONS UNDER THESE SPECIFICATIONS WITH ALL EMPLOYEES HAVING RESPONSIBILITY FOR HIRING, AS SIGNMENT, 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. Page 32 (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 RECRUIT-MENT 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 1N THE SELECTION PROCESS. (j) ENCOURAGE PRESENT MINORITY AND FEMALE EMPLOYEES TO RECRUIT OTHER MINORITY PERSONS AND WOMEN AND, WHERE REASONABLE, PROVIDE AFTER SCHOOL, SUMMER AND VACATION EMPLOYMENT TO MINORITY AND FEMALE YOUTH, BOTH ON THE SITE AND IN OTHER AREAS OF THE CONTRACTOR'S WORK FORCE. (k) VALDATE 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 Page 33 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 1VflNORITY AND FEMALE WORK FORCE PARTICIPATION, MAKES A GOOD FAITH EFFORT TO MEET ITS INDIVIDUAL GOALS AND TIMETABLES, AND CAN PROVIDE ACCESS TO DOCUMENTATION THAT DEMONSTRATES THE EFFECTIVENESS OF ACTIONS TAKEN ON BEHALF OF THE CONTRACTOR. THE OBLIGATION TO COMPLY, HOWEVER, IS THE CONTRACTOR'S AND FAILURE OF SUCH A GROUP TO FULFILL AN OBLIGATION SHALL NOT BE A DEFENSE FOR THE CONTRACTOR'S NONCOMPLIANCE. (9) A SINGLE GOAL FOR MINORITIES AND A SEPARATE SINGLE GOAL FOR WOMEN HAVE BEEN ESTABLISHED. THE CONTRACTOR, HOWEVER, IS REQUIRED TO PROVIDE EQUAL EMPLOYMENT 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). Page 34 (10) THE CONTRACTOR SHALL NOT USE THE GOALS AND TIMETABLES OR AFFIRMATIVE ACTION STANDARDS TO DISCRIMINATE AGAINST ANY PERSON BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN. (11) THE CONTRACTOR SHALL NOT ENTER INTO ANY SUBCONTRACT WITH ANY PERSON OR FIRM DEBARRED FROM GOVERNMENT CONTRACTS PURSUANT TO EXECUTIVE ORDER 11246. (12) THE CONTRACTOR SHALL CARRY OUT SUCH SANCTIONS AND PENAL-TIES FOR VIOLATION OF THESE SPECIFICATIONS AND OF THE EQUAL OPPORTUNITY CLAUSE, INCLUDING SUSPENSION, TERMINATION AND CANCELLATION OF EXISTING SUBCONTRACTS AS MAY BE IMPOSED OR ORDERED PURSUANT TO EXECUTIVE ORDER 11246, AS AMENDED, AND ITS IMPLEMENTING 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 ! 1246, 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 THAT THE COMPANY EEO POLICY IS BEING CARRIED OUT, TO SUBMIT REPORTS RELATING TO THE PROVISIONS HEREOF AS MAY BE REQUIRED BY THE GOVERNMENT AND TO KEEP RECORDS. RECORDS SHALL AT LEAST INCLUDE FOR EACH EMPLOYEE THE NAME, AD-DRESS, TELEPHONE NUDBERS, CONSTRUCTION TRADE, UNION AFFILIATION IF ANY, EMPLOYEE IDENTIFICATION NUDBER WHEN ASSIGNED, SOCIAL SECURITY NUDBER, RACE, SEX, STATUS (E.G., MECHANIC, APPRENTICE TRAINEE, HELPER, OR LABORER), DATES OF CHANGES IN STATUS, HOURS WORKED PER WEEK IN THE ENDICATED TRADE, Page 35 RATE OF PAY, AND LOCATIONS AT WHICH THE WORK WAS PERFORMED. RECORDS SHALL BE MAINTAINED IN AN EASILY UNDERSTANDABLE AND RETRIEVABLE FORM; HOWEVER, TO TIlE 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). 3. Notice. The Company hereby agrees that it will ensure that the notice set forth below shall be included in, and shall be a part of, all solicitations for offers and bids on all Federal and federally assisted construction contracts or subcontracts in excess of $10,000 to be performed in geographical areas designated by the Director, Office of Federal Contract Compliance Programs of the Department of Labor at 41 C.F.R. § 60- 4.2: NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY (EXECUTIVE ORDER 11246): (1) THE OFFEROR'S OR BIDDER'S ATTENTION IS CALLED TO THE "EQUAL OPPORTUNITY CLAUSE" AND THE "STANDARD FEDERAL EQUAL EMPLOYMENT SPECIFICATIONS" SET FORTH (2) (a) THE GOALS AND THE TIMETABLES FOR MINORITY AND FEMALE PARTICIPATION, EXPRESSED IN PERCENTAGE TERMS FOR THE CONTRACTOR'S AGGREGATE WORK FORCE IN EACH TRADE ON ALL CONSTRUCTION WORK IN THE COVERED AREA, ARE AS FOLLOWS: TIMETABLES GOALS FOR MINORITY GOALS FOR FEMALE PARTICIPATION 1N EACH PARTICIPATION IN TRADE EACH TRADE INSERT GOALS FOR EACH INSERT GOALS FOR YEAR 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 TI-IE 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 MINORITJES 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 CON-TRACT, 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 NUDBER OF THE SUBCONTRACTOR; EMPLOYER IDENTIFICATION NUDBER 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. Page 37 (4) AS USED IN THIS NOTICE, AND IN THE CONTRACT RESULTING FROM THIS SOLICITATION, THE "COVERED AREA" IS (INSERT DESCRIPTION OF THE GEOGRAPHICAL AREAS WHERE THE CONTRACT IS TO BE PERFORMED, GIVING THE STATE, COUNTY AND CITY, IF ANY). 4. Accommodations for the Physically Handicapped. UMTA assist-ed construction, designs, and alterations shall be undertaken in accordance with and meet the requirements of the provisions of General Services Administration (GSA) regulations set forth at 41 C.F.R. Subpart 101-19.6, unless an exception is granted in writing by UMTA or a waiver is granted in writing by GSA. 5. Contract Security. The Company shall follow the requirements of 49 C.F.R. § 18.36(h) or OMB Circular A-110, Attachment B, as applicable, and Federal (UMTA) guidelines with regard to bid guarantees and bonding requirements. 6. Signs. The Company shall cause to be erected at the site of construction, and maintained during construction, signs satisfactory to the Department of Transportation identifying the Project and indicating that the Government is participating in the development of the Project. 7. Safety Standards. Pursuant to section 107 of the Con-tract Work Hours and Safety Standards Act and Department of Labor regulations set forth at 29 C.F.R. § 1926, no laborer or mechanic working on a construction contract shall be required to work in surroundings or under working conditions that are unsanitary, hazardous, or dangerous to his or her health and safety as deter-mined under construction and health standards promulgated by the Secretary of Labor. 8. Liquidated Damages. The Company shall include in all con-tracts for construction a clause providing for liquidated damages, where appropriate. Liquidated damages clauses are appropriate if the parties may reasonably expect to suffer damages (increased costs on the Project involved) from the late completion of the 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 ho ai~iJiCql in the third party contract. Any liquidated damages recovered shall be ct~dtt~ed t6 the Project account involved unless the Government permits otherwise. V. Pursuant to regulations set forth at 29 C.F.R. Part 5, the following provisions shall be incorporated in each construction contract of $25,000 let by the Company in carrying out the Project. 1. IVIINIlVIUM WAGES. (a) ALL LABORERS AND MECHANICS EMPLOYED OR WORK1NG UPON THE SITE OF THE WORK (OR UNDER THE Page 38 UNITED STATES HOUSING ACT OF 1937 OR UNDER THE HOUSING ACT OF 1949 IN THE CONSTRUCTION OR DEVELOPMENT OF THE PROJECT), WILL BE PAID UNCONDITIONALLY AND NOT LESS OFTEN THAN ONCE A WEEK, AND WITHOUT SUBSEQUENT DEDUCTION OR REBATE ON ANY ACCOUNT (EXCEPT SUCH PAYROLL DEDUCTIONS AS ARE PERMITTED BY REGULATIONS ISSUED BY THE SECRETARY OF LABOR UNDER THE COPELAND ACT, 29 C.F.R. PART 3), THE FULL AMOUNT OF WAGES AND BONA FIDE FRINGE BENEFITS (OR CASH EQUIVALENTS THEREOF) DUE AT THE TIME OF PAYMENT COMPUTED AT RATES NOT LESS THAN THOSE CONTAINED IN THE WAGE DETERMINATION OF THE SECRE-TARY OF LABOR WHICH IS ATTACHED HERETO AND MADE A PART HEREOF, REGARDLESS OF ANY CONTRACTUAL RELATION-SHIP WHICH MAY BE ALLEGED TO EXIST BETWEEN THE CONTRACTOR AND SUCH LABORERS AND MECHANICS. CONTRIBUTIONS MADE OR COSTS REASONABLY ANTICIPATED FOR BONA FIDE FRINGE BENEFITS UNDER SECTION l(b) (2) OF THE DAVIS-BACON ACT ON BEHALF OF LABORERS OR MECHANICS ARE CONSIDERED WAGES PAID TO SUCH LABORERS OR MECHANICS, SUBJECT TO THE PROVISIONS OF 29 C.F.R. § 5.5(a)(1)(iv); ALSO, REGULAR CONTRIBUTIONS MADE OR COSTS INCURRED FOR MORE THAN A WEEKLY PERIOD (BUT NOT LESS OFTEN THAN QUARTERLy) UNDER PLANS, FUNDS, OR PROGRAMS THAT COVER THE PARTICULAR WEEKLY PERIOD, ARE DEEMED TO BE CONSTRUCTIVELY MADE OR INCURRED DURING SUCH WEEKLY PERIOD. SUCH LABORERS AND MECHANICS SHALL BE PAID THE APPROPRIATE WAGE RATE AND FRINGE BENEFITS ON THE WAGE DETERMINATION FOR THE CLASSIFICATION OF WORK ACTUALLY PERFORM-ED, WITHOUT REGARD TO SKILL, EXCEPT AS PROVIDED AT 29 C.F.R. § 5.5(a)(4), LABORERS OR MECHANICS PERFORMING WORK IN MORE THAN ONE CLASSIFICATION MAY BE COMPENSATED AT THE RATE SPECIFIED FOR EACH CLASSIFICATION FOR THE TIME ACTUALLY WORKED THEREIN: PROVIDED, THAT THE EMPLOYER'S PAYROLL RECORDS ACCURATELY SET FORTH THE TIME SPENT IN EACH CLASSIFICATION IN WI-HCH 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 THAT IS NOT Page 39 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 TI-IEREFOR ONLY WHEN THE FOLLOWING CRITERIA HAVE BEEN MET: a. THE WORK TO BE PERFORMED BY TH]E CLASSIFICATION REQUEST-ED IS NOT PERFORMED BY A CLASSIFICATION IN THE WAGE DETERMINATION; AND b. THE CLASSIFICATION IS UTILIZED IN THE AREA BY THE CONSTRUCTION INDUSTRY; AND c. THE PROPOSED WAGE RATE, INCLUDING ANY BONA FIDE FRINGE BENEFITS, BEARS A REASONABLE RELATIONSHIP TO THE WAGE RATES CONTAINED IN THE WAGE DETERMINATION. 2. IF THE CONTRACTOR AND THE LABORERS AND MECHANICS TO BE EMPLOYED IN THE CLASSIFICATION (IF KNOWN), OR THEIR REPRESENTATIVES, AND THE CONTRACTING OFFICER AGREE ON THE CLASSIFICATION AND WAGE RATE (INCLUDING THE AMOUNT DESIGNATED FOR FRINGE BENEFITS WHERE APPROPRIATE), A REPORT OF THE ACTION TAKEN SHALL BE SENT BY THE CONTRACTING OFFICER TO THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, EMPLOYMENT STANDARDS ADMINISTRATION, U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C. 20210. THE ADMINISTRATOR, OR AN AUTHORIZED REPRESENTATIVE, WILL APPROVE, MODIFY, OR DISAPPROVE EVERY ADDITION-AL CLASSIFICATION ACTION WITHIN 30 DAYS OF RECEIPT AND SO ADVISE THE CONTRACTING OFFICER OR WILL NOTIFY THE CONTRACTING OFFICER WITHIN THE 30-DAY PERIOD THAT ADDITIONAL TIME IS NECESSARY. 3. IN THE EVENT THE CONTRACTOR, LABORERS OR MECHANICS TO BE EMPLOYED IN THE CLASSIFICATION OR THEIR REPRESENTATIVES, AND THE CONTRACTING OFFICER DO NOT AGREE ON THE PROPOSED CLASSIFICATION AND WAGE RATE (INCLUDING THE AMOUNT DESIGNATED FOR FRINGE BENEFITS, WHERE APPROPRIATE), THE CONTRACTING OFFICER SHALL REFER THE QUESTIONS INCLUDING THE VIEWS OF ALL INTERESTED PARTIES AND THE RECOMMENDATION OF THE CONTRACTING OFFICER, TO THE ADMINISTRATOR FOR Page 40 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 WITH-IN 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 TI-IE CLASSIFICATION UNDER THIS CONTRACT FROM THE FIRST DAY ON WHICH WORK IS PERFORMED IN THE CLASSIFICATION. (¢) WHENEVER THE MINIMUM WAGE RATE PRESCRIBED IN THE CONTRACT FOR A CLASS OF LABORERS OR MECHANICS INCLUDES A FRINGE BENEFIT WHICH IS NOT EXPRESSED AS AN HOURLY RATE, THE CONTRACTOR SHALL EITHER PAY THE BENEFIT AS STATED IN THE WAGE DETERMINATION OR SHALL PAY ANOTHER BONA FIDE FRINGE BENEFIT OR AN HOURLY CASH EQUIVALENT THEREOF. (d) IF THE CONTRACTOR DOES NOT MAKE PAYMENTS TO A TRUSTEE OR OTHER THIRD PERSON, THE CONTRACTOR MAY CONSIDER AS PART OF THE WAGES OF ANY LABORER OR MECHANIC THE AMOUNT OF ANY COSTS REASONABLY ANTICIPATED IN PROVIDING BONA FIDE FRINGE BENEFITS UNDER A PLAN OR PROGRAM, PROVIDED, THAT THE SECRETARY OF LABOR HAS FOUND, UPON THE WRITTEN REQUEST OF THE CONTRACTOR, THAT THE APPLICABLE STANDARDS OF THE DAVIS-BACON ACT HAVE BEEN MET. THE SECRETARY OF LABOR MAY REQUIRE THE CONTRACTOR TO SET ASIDE IN A SEPARATE ACCOUNT ASSETS FOR THE MEETING OF OBLIGATIONS UNDER THE PLAN OR PROGRAM. 2. WITHHOLDING. UMTA SHALL UPON ITS OWN ACTION OR UPON WRITTEN REQUEST OF AN AUTHORIZED REPRESENTATIVE OF THE DEPARTMENT OF LABOR WITHHOLD OR CAUSE TO BE WITHHELD FROM THE CONTRACTOR, UNDER THIS AGREEMENT OR ANY OTHER FEDERAL CONTRACT WITH THE SAME COMPANY OR ANY OTHER FEDERALLY-ASSISTED CONTRACT SUBJECT TO DAVIS-BACON PREVAILING WAGE REQUIREMENTS, WHICH IS WITHHELD BY THE SAME PRIME CONTRACTOR, SO MUCH OF THE ACCRUED PAYMENTS OR ADVANCES AS MAY BE CONSIDERED NECESSARY TO PAY LABORERS AND MECHANICS, INCLUDING APPRENTICES, TRAINEES, AND HELPERS, EMPLOYED BY THE CONTRACTOR OR Page 41 ANY SUBCONTRACTOR THE FULL AMOUNT OF WAGES REQUIRED BY THE CONTRACT. IN THE EVENT OF FAILURE TO PAY ANY LABORER OR MECHANIC, INCLUDING ANY APPRENTICE, TRAINEE, OR HELPER, EMPLOYED OR WORKING ON THE SITE OF THE WORK (OR UNDER THE UNITED STATES HOUSING ACT OF 1937 OR UNDER THE HOUSING ACT OF 1949 IN THE CONSTRUCTION OR DEVELOPMENT OF THE PROJECT), ALL OR PART OF THE WAGES REQUIRED BY THE CONTRACT, UMTA MAY, AFTER WRITTEN NOTICE TO THE CONTRACTOR, SPONSOR, . APPLICANT, OR OWNER, TAKE SUCH ACTION AS MAY BE NECESSARY TO CAUSE THE SUSPENSION OF ANY FURTHER PAYMENT, ADVANCE, OR GUARANTEE OF FUNDS UNT1L SUCH VIOLATIONS HAVE CEASED. 3. PAYROLLS AND BASIC RECORDS. (a) PAYROLLS AND BASIC RECORDS RELATING THERETO SHALL BE MAINTAINED BY THE CONTRACTOR DURING THE COURSE OF THE WORK AND PRESERVED FOR A PERIOD OF THREE YEARS THERE-AFTER FOR ALL LABORERS AND MECHANICS WORKING AT THE SITE OF THE WORK (OR UNDER THE UNITED STATES HOUSING ACT OF 1937, OR UNDER THE HOUSING ACT OF 1949, IN THE CONSTRUCTION OR DEVELOPMENT OF THE PROJECT). SUCH RECORDS SHALL CONTAIN THE NAME, ADDRESS, AND SOCIAL SECURITY NUDBER OF EACH SUCH WORKER, HIS OR HER CORRECT CLASSIPICATION, HOURLY RATES OF WAGES PAID (INCLUDING RATES OF CONTRIBUTIONS OR COSTS ANTICIPATED FOR BONA FIDE FRINGE BENEFITS OR CASH EQUIVALENTS THEREOF OF THE TYPES DESCRIBED IN SECTION l(b) (2) (B) OF THE DAVIS- BACON ACT), DAILY AND WEEKLY NUDBER OF HOURS WORKED, DEDUCTIONS MADE AND ACTUAL WAGES PAID. WHENEVER THE SECRETARY OF LABOR HAS FOUND UNDER 29 C.F.R. § 5.5(a) (1) (iv) THAT THE WAGES OF ANY LABORER OR MECHANIC INCLUDE THE AMOUNT OF ANY COSTS REASONABLY ANTICIPATED IN PROVIDING BENEFITS UNDER A PLAN OR PROGRAM DESCRIBED IN SECTION l(b) (2) (B) OF THE DAVIS- BACON ACT, THE CONTRACTOR SHALL MAINTAIN RECORDS WHICH SHOW THAT THE COMMITMENT TO PROVIDE SUCH BENEFITS IS ENFORCE-ABLE, THAT THE PLAN OR PROGRAM IS FINANCIALLY RESPONSIBLE, AND THAT THE PLAN OR PROGRAM HAS BEEN COMMUNICATED IN WRITING TO THE LABORERS OR MECHANICS AFFECTED, AND RECORDS WHICH SHOW THE COSTS ANTICIPATED OR THE ACTUAL COSTS INCURRED IN PROVIDING SUCH BENEFITS. CONTRACTORS EMPLOYING APPRENTICES OR TRAINEES UNDER APPROVED PROGRAMS SHALL MAINTAIN WRITTEN EVIDENCE OF THE REGISTRATION OF APPRENTICESHIP PROGRAMS AND CERTIFICATION OF TRAINEE PROGRAMS, THE Page 42 REGISTRATION OF THE APPRENTICES AND TRAINEES, AND THE RATIOS AND WAGE RATES PRESCRIBED IN THE APPLICABLE PRO-GRAMS. (b) 1. THE CONTRACTOR SHALL SUBMIT WEEKLY FOR EACH WEEK 1N WHICH ANY CONTRACT WORK IS PERFORMED A COPY OF ALL PAYROLLS TO UMTA IF UMTA IS A PARTY TO THE CONTRACT; BUT IF UMTA IS NOT SUCH A PARTY, THE CONTRACTOR WILL SUBMIT THE PAYROLLS TO THE APPLICANT, SPONSOR, OR OWNER, AS THE CASE MAY BE, FOR TRANSMISSION TO UMTA. THE PAYROLLS SUBMITTED SHALL SET OUT ACCURATELY AND COMPLETELY ALL OF THE INFORMATION REQUIRED TO BE MAINTAINED UNDER 29 C.F.R. § 5.5(a) (3) (i). THIS INFORMATION MAY BE SUBMITTED IN ANY FORM DESIRED. OPTIONAL FORM WH-347 IS AVAILABLE FOR THIS PURPOSE AND MAY BE PURCHASED FROM THE SUPERINTENDENT OF DOCUMENTS (FEDERAL STOCK NO. 029- 005-00014-1), U.S. GOVERNMENT PRINTING OFFICE, WASHINGTON, D.C. 20402. THE PRIME CONTRACTOR IS RESPONSIBLE FOR THE SUBMISSION OF COPIES OF PAYROLLS BY ALL SUBCONTRACTORS. 2. EACH PAYROLL SUBMITTED SHALL BE ACCOMPANIED BY A "STATEMENT OF COMPLIANCE," SIGNED BY THE CONTRACTOR OR SUBCONTRACTOR OR HIS OR HER AGENT WHO PAYS OR SUPERVISES THE PAYMENT OF THE PERSONS EMPLOYED UNDER THE CONTRACT AND SHALL CERTIFY THE FOLLOWING: (a) THAT THE PAYROLL FOR THE PAYROLL PERIOD CONTAINS THE INFORMATION REQUIRED TO BE MAINTAINED UNDER 29 C.F.R. § 5.5 (a) (3) (i) AND THAT SUCH INFORMATION IS CORRECT AND COMPLETE; (b) THAT EACH LABORER OR MECHANIC (INCLUDING EACH HELPER, APPRENTICE, AND TRAINEE) EMPLOYED ON THE CONTRACT DURING THE PAYROLL PERIOD HAS BEEN PAID THE FULL WEEKLY WAGES EARNED, WITHOUT REBATE, EITHER DIRECTLY OR INDIRECTLY, AND THAT NO DEDUCTIONS HAVE BEEN MADE EITHER DIRECTLY OR INDIRECTLY FROM THE FULL WAGES EARNED, OTHER THAN PERMISSIBLE DEDUCTIONS AS SET FORTH AT 29 C.F.R. PART 3; (c) THAT EACH LABORER OR MECHANIC HAS BEEN PAID NOT LESS THAN THE APPLICABLE WAGE RATES AND FRINGE BENEFITS OR CASH EQUIVALENTS FOR THE Page 43 CLASSIFICATION OF WORK PER-FORMED, AS SPECIFIED IN THE APPLICABLE WAGE DETERMINATION INCORPORATED INTO THE CON-TRACT. 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 UMTA OR THE DEPARTMENT OF LABOR, AND SHALL PERMIT SUCH REPRESENTATIVES TO INTERVIEW EMPLOYEES DURING WORKING HOURS ON THE JOB. IF THE CONTRACTOR OR SUBCONTRACTOR FAILS TO SUBMIT THE REQUIRED RECORDS OR MAKE THEM AVAILABLE, UMTA MAY, AFTER WRITTEN NOTICE TO THE CONTRACTOR, SPONSOR, APPLICANT, OR OWNER, TAKE SUCH ACTION AS MAY BE NECESSARY TO CAUSE THE SUSPENSION OF ANY FURTHER PAYMENT, ADVANCE, OR GUARANTEE OF FUNDS. FURTHER-MORE, 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 ENDIVIDUALLY 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 COMPANY 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 Page 44 HAS BEEN CERTIFIED BY THE BUREAU OF APPRENTICESHIP AND TRAINING OR A STATE APPRENTICESHIP COMPANY (WHERE APPROPRIATE) TO BE ELIGIBLE FOR PROBATIONARY EMPLOYMENT AS AN APPRENTICE. THE ALLOWABLE RATIO OF APPRENTICES TO JOURNEYMEN ON THE JOB SITE IN ANY CRAFT CLASSIFICATION SHALL NOT BE GREATER THAN THE RATIO PERMITTED TO THE CONTRACTOR AS TO THE ENTIRE WORK FORCE UNDER THE REGISTERED PROGRAM. ANY WORKER LISTED ON A PAYROLL AT AN APPRENTICE WAGE RATE, WHO IS NOT REGISTERED OR OTHERWISE EMPLOYED AS STATED ABOVE, SHALL BE PAID NOT LESS THAN THE APPLICABLE WAGE ON THE WAGE DETERMINATION FOR THE CLASSIFICATION OF WORK ACTUALLY PER-FORMED. IN ADDITION, ANY APPRENTICE PERFORMING WORK ON THE JOB SITE IN EXCESS OF THE RATIO PERMITTED UNDER THE 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 1N PERCENTAGES OF THE JOURNEYMAN'S HOURLY RATE) SPECIFIED IN THE CONTRACTOR'S OR SUBCONTRACTOR'S REGISTERED PROGRAM SHALL BE OBSERVED. EVERY APPRENTICE MUST BE PAID AT NOT LESS THAN THE RATE SPECIFIED IN THE REGISTERED PROGRAM FOR THE APPRENTICE'S LEVEL OF PROGRESS, EXPRESSED AS A PERCENT-AGE OF THE JOURNEYMAN HOURLY RATE SPECIFIED IN THE APPLICABLE WAGE DETERMINATION. APPRENTICES SHALL BE PAID FRINGE BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE APPRENTICESHIP PROGRAM. IF THE APPRENTICESI-I]? 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 APPRENTICESI-m~' COMPANY RECOGNIZED BY THE BUREAU, WITI-IDRAWS APPROVAL OF AN APPRENTICESHIP PROGRAM, THE CON-TRACTOR WILL NO LONGER BE PERMITTED TO UTILIZE APPRENTICES AT LESS THAN THE APPLICABLE PREDETERMINED RATE FOR THE WORK PERFORMED UNTIL AN ACCEPTABLE PROGRAM IS APPROVED. Page 45 (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 TRA1NEES TO JOURNEYMEN ON THE JOB SITE SHALL NOT BE GREATER THAN PERMITTED UNDER THE PLAN APPROVED BY THE EMPLOYMENT AND TRAINING ADMINISTRATION. EVERY TRAINEE MUST BE PAID AT NOT LESS THAN THE RATE SPECIFIED IN THE APPROVED PROGRAM FOR THE TRAINEE'S LEVEL OF PROGRESS, EXPRESSED AS A PERCENT-AGE OF THE JOURNEYMAN HOURLY RATE SPECIFIED IN THE 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 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 PER-FORMED UNTIL AN ACCEPTABLE PROGRAM IS APPROVED. (c) EQUAL EMPLOYMENT OPPORTUNITY. THE UTILIZATION OF APPRENTICES, TRAINEES, AND JOURNEYMEN UNDER 29 C.F.R. PART 5 SHALL BE IN CONFORMITY WITH THE Page 46 EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS OF EXECUTIVE ORDER 11246, AS AMENDED, AND 29 C.F.R. PART 30. 5. COMPLIANCE WITH COPELAND ACT REQUIREMENTS. THE CON-TRACTOR 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 CON-TRACT 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. §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a) CERTIFICATION OF ELIGIBILITY. BY ENTERING INTO THIS AGREEMENT OR A THIRD PARTY CONTRACT FINANCED UNDER THIS AGREEMENT, THE CONTRACTOR CERTIFIES THAT NEITHER IT (NOR HE NOR SHE) NOR ANY PERSON OR FIRM THAT HAS AN INTEREST IN THE CON-TRACTOR'S FIRM IS A PERSON OR FIRM INELIGIBLE TO BE AWARDED GOVERNMENT CONTRACTS BY VIRTUE OF SECTION 3 (a) OF THE DAVIS-BACON ACT OR 29 C.F.R. § 5.12(a) (1). (b) NO PART OF THIS CONTRACT SHALL BE SUBCONTRACT-ED TO ANY PERSON OR FIRM INELIGIBLE FOR AWARD OF A GOVERNMENT CONTRACT BY VIRTUE OF SECTION 3(a) OF THE DAVIS-BACON ACT OR 29 C.F.R. § 5.12(a) (1). Page 47 (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 THERE-FOR SHALL BE LIABLE FOR THE UNPAID WAGES. IN ADDITION, SUCH CONTRACTOR AND SUBCONTRACTOR SHALL BE LIABLE TO THE UNITED STATES (IN THE CASE OF WORK DONE UNDER CONTRACT FOR THE DISTRICT OF COLUMBIA OR A TERRITORY, TO SUCH DISTRICT OR TO SUCH TERRITORY) FOR LIQUIDATED DAMAGES. SUCH LIQUIDATED DAMAGES SHALL BE COMPUTED WITH RESPECT TO EACH INDIVIDUAL LABORER OR MECHANIC, INCLUDING WATCHMEN AND GUARDS, EMPLOYED IN VIOLATION OF 29 C.F.R. § 5.5(b) (1) IN THE SUM OF $10 FOR EACH CALENDAR DAY ON WHICH SUCH INDIVIDUAL WAS REQUIRED OR PERMITTED TO WORK IN EXCESS OF THE 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 LIOUIDATED DAMAGES. UMTA OR THE COMPANY 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 AC-COUNT OF WORK PERFORMED BY THE CONTRACTOR OR SUBCONTRACTOR UNDER ANY SUCH CON-TRACT OR ANY OTHER FEDERAL CONTRACT WITH THE SAME PRIME CON-TRACTOR, OR ANY OTHER FEDERALLY-ASSISTED CONTRACT SUBJECT TO THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT, WHICH IS HELD BY THE SAME PRIME CONTRACTOR, SUCH SUMS AS MAY BE DETERMINED TO BE NECESSARY TO SATISFY ANY LIABILITIES OF SUCH Page 48 CONTRACTOR OR SUBCONTRACTOR FOR UNPAID WAGES AND LIQUIDATED DAMAGES AS PROVIDED IN THE CLAUSE SET FORTH AT 29 C.F.R. § 5.5(b) (2). 13. SUBCONTRACTS. THE CONTRACTOR OR SUBCONTRACTOR SHALL INSERT IN ANY SUBCONTRACTS THE CLAUSES SET FORTH IN SUBSECTIONS 116.a.(1) THROUGH (12) OF PART II OF THIS AGREEMENT AND ALSO A CLAUSE REQUIRING THE SUBCONTRACTORS TO INCLUDE THESE CLAUSES IN ANY LOWER TIER SUBCONTRACTS. THE PRIME CONTRACTOR SHALL BE RESPONSIBLE FOR COMPLIANCE BY ANY SUBCONTRACTOR OR LOWER TIER SUBCONTRACTOR WITH THE CLAUSES SET FORTH IN SUBSECTIONS l16.a.(1) THROUGH 116.a.(12) OF PART II OF THE CITY'S AGREEMENT WITH THE GOVERNMENT. Non-construction Contracts. Pursuant to the regulations set forth at 29 C.F.R. Part 5, the following provisions shall be incorporated in all federally-assisted non-construction contracts of $2,500 let by the Company in carrying out the Project: NONCONSTRUCTION CONTRACTS. THE REQUIREMENTS OF THE CLAUSES CONTAINED IN 29 C.F.R. § 5.5(b) OR SUBSECTIONS l16.a.(10) THROUGH 116.a.(13) OF PART II OF THIS AGREEMENT ARE APPLICABLE TO ANY CONTRACT SUBJECT TO THE OVERTIME PROVISIONS OF THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT AND NOT TO ANY OF THE OTHER STATUTES CITED IN 29 C.F.R. § 5.1. THE CON-TRACTOR OR SUBCONTRACTOR SHALL MAINTAIN PAYROLLS AND BASIC PAYROLL RECORDS DURING THE COURSE OF THE WORK AND SHALL PRESERVE THEM FOR A PERIOD OF THREE YEARS FROM THE COMPLETION OF THE CONTRACT FOR ALL LABORERS AND MECHANICS, INCLUDING GUARDS AND WATCHMEN, WORKING ON THE CONTRACT. SUCH RECORDS SHALL CONTAIN THE NAME AND ADDRESS OF EACH SUCH EMPLOYEE, SOCIAL SECURITY NUDBER, CORRECT CLASSIFICATIONS, HOURLY RATES OF WAGES PAID, DAILY AND WEEKLY NUDBER OF HOURS WORKED, DEDUCTIONS MADE, AND ACTUAL WAGES PAID. THE RECORDS TO BE MAINTAINED UNDER THIS CLAUSE SHALL BE MADE AVAILABLE BY THE CONTRACTOR OR SUB-CONTRACTOR FOR INSPECTION, COPYING, OR TRANSCRIPTION BY AUTHORIZED REPRESENTATIVES OF UMTA, DOT, OR THE DEPARTMENT OF LABOR, AND THE CONTRACTOR OR SUBCONTRACTOR WILL PERMIT SUCH REPRESENTATIVES TO INTERVIEW EMPLOYEES DURING WORKING HOURS ON THE JOB. Page 49 W. Environmental, Resource, Energy Protection, and Conservation Requirements. 1. The National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§ 4321 et seq.; Section 14 of the Urban Mass Transportation Act of 1964, as amended, 49 U.S.C. app. §§ 1601 et seq.; the Council on Environmental Quality regulations, 40 C.F.R. Part 1500 et seq.; and the FHX~A/UMTA regulation, "Environmental Impact and Related Procedures," 23 C.F.R. Part 771, as amended, are applicable to the Project. 2. The Company shall comply with the provisions of the Clean Air Act, as amended, 42 U.S.C. §§ 1857 et seq4 the Federal Water Pollution Control Act, as amended, 33 U.S.C. §§ 1251 et seq.; and implementing regulations, in the facilities that are involved in the Project for which Federal assistance is given. The Company shall ensure that the facilities under ownership, lease or super-vision, whether directly or under contract, that will be utilized in the accomplishment of the Project are not listed on the Environ-mental Protection Company (EPA) List of Violating Facilities. Con-tracts, subcontracts, and sub-grants of amounts in excess of $100,000 shall contain a pro-vision requiring compliance with all applicable standards, orders, or requirements issued pursuant to Federal statute or regulation. The Company and any third party contractor thereof shall be responsible for reporting any violations to City and UMTA and to the EPA Assistant Administrator for Enforcement. In addition, the Company shall notify City and UMTA of the receipt of any communication from the Director of the EPA Office of Federal Activities indicating that a facility to be utilized in the Project is under consideration for listing by EPA. 3. No facilities or equipment shall be acquired, construct-ed, or improved as a part of the Project unless the Company obtains satisfactory assurances that they are (or will be) designed and equipped to limit air pollution as provided in accordance with the following EPA regulations: "Control of Air Pollution from Motor Vehicles and Motor Vehicle Engines," 40 C.F.R. Part 85; "Control of Air Pollution from New Motor Vehicles and New Motor Vehicle Engines; Test Procedures for Light-Duty Vehicles and Light- Duty Trucks and Selective Enforcement Auditing of New Light-Duty Vehicles, Light- Duty Trucks and Heavy-Duty Engines," 40 C.F.R. Part 86; and "Fuel Economy of Motor Vehicles," 40 C.F.R. Part 600; in accordance with applicable federally-approved State Implementation Plan(s) (in particular, the Transportation Control Measures); and in accordance with appropriate UMTA directives and all other applicable standards. 4. No publicly owned land from a park, recreation area, or wildlife or waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land fxom an historic site of national, State, or local significance may be used for the Project unless specific findings required under 49 U.S.C. § 303 are made by the Department of Transportation. Page 50 5. The Company shall assist the Government (UMTA) to comply with section 106 of the National Historic Preservation Act involving historic and archaeological preservation by: (1) Consulting the State Historic Preservation Officer on the conduct of investigations, in accordance with Advisory Council on Historic Preservation regulations, "Protection of Historic and Cultural Properties," 36 C.F.R. Part 800, to identify properties and resources listed in or eligible for inclusion in the National Register of Historic Places that may be affected by the Project, and notifying the Government (UMTA) of the existence of any such properties; and (2) Complying with all Federal requirements to avoid or mitigate adverse effects upon such properties. 6. The Company 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. 7. Should the proposed Project cause adverse environmental effects, the Company shall take all reasonable steps to minimize such effects pursuant to 49 U.S.C. app. § 1610, other applicable statutes, and the procedures set forth in 23 C.F.R. Part 771. The Company shall undertake all environmental mitigation measures that may be identified as commitments in applicable environmental documents (such as environmental assessments, environmental impact statements, memoranda of agreements, and statements required by 49 U.S.C. § 303) and with any conditions imposed by the Government as part of a finding of no significant impact or a record of decision; all such mitigation measures are incorporated in and made part of this Agreement by reference. In the event that some or all mitigation measures are deferred, once such measures are agreed upon by the Government, City and the Company, those mitigation methods subsequently determined will be incorporated into this Agreement. Such mitigation measures may not be modified or with-drawn without the express written approval of the Government. 8. In carrying out the Project, the Company shall make all appropriate efforts to foster the use of fly ash, substantially in compliance with EPA regulations "Guideline for Federal Procurement of Cement and Concrete Containing Fly Ash," 40 C.F.R. Part 249. Should the Company make a determination that the use of fly ash is inappropriate in a particular procurement of cement or concrete, the Company shall provide UMTA a written justification to support that decision. X. MISCELLANEOUS 1. Company shall comply with Department of Transportation regulations, "Uniform Relocation and Real Property Acquisition Regulation for Federal and Federally Assisted Programs," 49 C.F.R. Part 24. Page 51 2. Company shall comply with the flood insurance purchase requirements of section 102(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. § 4012(a), with respect to any construction or acquisition Project. 3. Company shall comply with the bus testing requirements as set forth in section 12(h) of the Urban Mass Transportation ACt of 1964, as amended, 49 U.S.C. app. § 1608(h), and any implementing regulations that may be issued thereunder. 4. Company shall comply with any regulations that may be issued to implement section 12(j) of the Urban Mass Transportation Act, of 1964, as amended, 49 U.S.C. app. § 16080). 5. If any invention, improvement, or discovery of the Company or any of its third party contractors is conceived or first actually reduced to practice in the course of or under this Project, which invention, improvement, or discovery may be patentable under the laws of the United States of America or any foreign country, the Company shall immediately notify the Government (UMTA) and pro-vide a detailed report. The rights and responsibilities of the Company, third party contractors, the City and the Government with respect to such invention, improvement, or discovery will be determined in accordance with applicable Federal laws, regulations, policies, and any waiver thereof. 6. Rights in Data. a. The term "subject data" as used herein means recorded information, whether or not copyrighted, that is delivered or specified to be delivered under this Agreement. The term includes graphic or pictorial delineations in media such as drawings or photographs; text in specifications or related performance or design-type documents; machine forms such as punched cards, 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 Company may not publish or reproduce such data in whole or in part, or in any manner or form, nor may the Company authorize others to do so, without the written consent of the City and the Government, until such time as the Government may have either released or approved the release of such data to the public; this restriction on publication, however, does not apply to Agreements with academic institutions. Page 52 (2) As authorized by 49 C.F.R. Part 18.34, the City and the Government (UMTA) reserve a royalty-free, non-exclusive and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for Federal Government purposes: (a) Any work developed under a grant, cooperative agreement, sub-grant, sub-agreement, or third party contract, irrespective of whether or not a copyright has been obtained; and (b) Any rights of copyright to which a Company, sub-recipient, or a third party contractor purchases ownership with Federal assistance. c. Company understands and agrees that, in addition to the rights set forth in Subsection 119.b.(2) of Part II of this Agreement, UMTA may make available to any UMTA recipient, sub-grantee, sub-recipient, third party contractor, or third party subcontractor, either UMTA's license in the copyright to the "subject data" derived under this Agreement or a copy of the "subject data" first produced under this Agreement. d. The City and Company shall indemnify, save and hold harmless the Government, its officers, agents, and employees acting within the scope of their official duties against any liability, including costs and expenses, resulting from any willful or intentional violation by the Company of proprietary rights, copyrights, or right of privacy, arising out of the publication, translation, reproduction, delivery, use, or disposition of any data furnished under this Agreement. e. Nothing contained in this clause shall imply a license to the City or Government under any patent or be construed as affecting the scope of any license or other fight otherwise granted to the City or Government under any patent. f. Subsections b., c. and d. of Part II of this Section are not applicable to material furnished to the Company by the U. S. Government and incorporated in the work furnished under the Agreement; provided that such incorporated material is identified by the Company at the time of delivery of such work. g. In the event that the Project, which is the subject of this Agreement, is not completed, for any reason whatsoever, all data developed under that Project shall become subject data as defined in Subsection 119.a. of Part II of the City's Agreement with the Government- and shall be delivered as the Government may direct. h. The requirements of Subsections a. through g. of this Section shall be included in all third party contracts of the Company under this Project. 7. Privacy. Should the Company, or any or its third party contractors, sub- grantees, sub-recipients or their employees administer any system of records on behalf of the Federal Government, the Privacy Act of 1974, 5 U.S.C. § 552a (the Act), imposes information restrictions on the party administering the system of records. Page 53 a. For purposes of the Privacy Act, when the Agreement involves the operation of a system of records on individuals to accomplish a Government function, the Company and any third party contractors, sub-grantees, sub-recipients and their employees involved therein are considered to be Government employees with respect to the Government function. The requirements of the Act, including the civil and criminal penalties for violations of the Act, apply to those individuals involved. Failure to comply with the terms of the Act will make this Agreement subject to termination. b. As used herein: (1) "Operation of a system of records" means performance of any of the activities associated with maintaining the system of records on behalf of the Government including the collection, use and dissemination of records. (2) "Record" means any item, collection, or grouping of information about an individual that is maintained by the Company 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 nuDBEr, 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 Company on behalf of the Government from which information is retrieved by the name of the individual or by some identifying nuDBEr, symbol or other identify-ing particular assigned to the individual. XV. GENERAL PROVISIONS a. Bonus or Commission. The Company warrants that it has not paid, and also agrees not to pay, any bonus or commission for the purpose of obtaining approval of its application for the financial assistance hereunder. b. State or Territorial Law. Except to the extent that a Federal statute or regulation conflicts with State or territorial law, nothing in the Agreement shall require the Company 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 Company to violate any applicable State territorial law, the Company shall at once notify the Government (UMTA) in writing in order that appropriate arrangements may be made by the Government and the Company to the end that the Company may proceed as soon as possible with the Project. c. Records. The Company will, for each local fiscal year ending on or after July 1, 1978, conform to the reporting system and the uniform system of accounts Page 54 and records to the extent required by section 15 of the Urban Mass Transportation Act of 1964, as amended, 49 U.S.C. app. § 1611, effective for each local fiscal year ending on or after July 1, 1978, and applicable regulations "Uniform System of Accounts and Records and Reporting System," set forth at 49 C.F.R. Part 630. d. Severabilitv. 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. 1N WITNESS WHEREOF, the parties do he,.r~l;~iy affix their, signatl~res and enter into this Agreement as of the effective date being/_~tday of :~.,/)/"/[ , 2002. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERB~O~Y ATTORNEY ATTEST: CITY OF DENTON, TEXAS EULINE BROCK, MAYOR MCDONALD 'I~P,_~dN S I T_.~ ~ By/ ,---/ ~ ~ ( //~ ~O~E~T T. ~T P~S~E~ Page 55 EXHIBIT "A" City of Denton - Transit Budget (Fixed Costs) Transportation Management Services Cost Category Year 1 Year 2 Year 3 Year 4 Year 5 1. Management, Administrative, and $135,058 $180,473 $183,941 $190,379 $197,042 Supervisory Wages and Benefits: These costs provide for the salary and connected tYinge benefits of the dispatchers, supervisors, and clerical employees associated with the provision of transit services. 2. Office Supplies, Materials and Equipment: $4,800 $4,968 $5,142 $5,322 $5,508 This line item will pay for expenses associated with the provision of needed office supplies for the collective administrative functions for transit operations. 3. Services: This line item will provide for $26,200 $27,117 $28,066 $29,048 $30,065 payroll service, internal audit functions, internal legal assistance, marketing efforts to include special campaigns outside those provided by the City of Denton, and printing cost associated to the management and operation of transit services. 4. Insurance Premiums & Deductibles: Will $86,480 $90,804 $95,344 $100,111 $105,117 provide for the specified and required limits of insurance pertaining to the operation and management of the transit system. This will include all premiums for General Liability, Property Damage, auto Liability, Worker's Compensation for administrative personnel and Professional Error & Omissions coverage. 5. Leases and Rentals: Will pay for rented $1,200 $1,242 $1,285 $1,330 $1,377 items not provided for under the capital grant program. Since it is assumed that most of the computer hardware, sof~ware and supplementary office equipment such as phones, copier, printer and fax machine will be provided through the normal capital grant process, we are placing a limited amount of rental/lease expense into the fixed fee for transit management and operation. 6. Other Fixed Expenses: Will include all $2,500 $2,588 $2,678 $2,772 $2,869 costs associated to providing travel and dues membership of the Local Operations Manager. 7. One-Thne Start-Up Expenses: These costs $45,140 $0 $0 $0 $0 will pay for the transition expenses associated to the start of the new contract. These will include relocation assistance for the Local Operations Manager, training assistance, and other ancillary services associated to the transition of contractors. 8. Management Fee: Covers the wages and $136,830 $117,840 $122,400 $127,320 $132,720 fringe benefits for the Local Operations Manager, corporate support, company overhead and profit. Total Fixed Costs: $438,208 $425,032 $438,856 $456,282 $474,698 S:\Our Documea~t s~/~fisc~llaneous\02kLink Budget- Exhibit A.doe EXHIBIT "B" City of Denton - Transit Budget (Variable Costs) Transportation Management Services Variable Costs Year 1 Year 2 Year 3 Year 4 Year 5 1. Driver Wages & Benefits $425,755 $443,523 $447,403 $463,124 $479,395 2. Training $11,472 $12,793 $13,240 $13,704 $14,183 3. Uniforms $2,550 $2,846 $2,946 $3,049 $3,156 4. DOT Physicals and Drug Screens $2,550 $2,857 $2,857 $2,957 $3,060 5. Maintenance Services $5~)0 $518 $536 $554 $574 6. Miscellaneous Materials & Supplies $15,356 $16,052 $16,213 $16,780 $17,368 Total Variable Costs $458,183 $478,589 $483,195 $500,168 $517,736