HomeMy WebLinkAbout05579ORDINANCE NO. 5579
AN ORDINANCE APPROVING A CONTRACT, PROJECT NO.
CO - 90- X051 -00, BETWEEN PUEBLO, A MUNICIPAL
CORPORATION, AND THE UNITED STATES OF AMERICA,
AND AUTHORIZING THE CITY COUNCIL TO EXECUTE SAME
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, COLORADO,
that:
SECTION 1.
A certain contract, after having been approved by the City
Attorney, by and between PUEBLO, A MUNICIPAL CORPORATION, and the
UNITED STATES OF AMERICA, relating to project number CO -90- X051 -00,
covering an Urban Mass Transportation Grant under Section 9 of the
Urban Mass Transportation Act of 1964, as amended, to assist in
meeting operating deficits incurred by the Pueblo Transportation
Company during calendar year 1990 and to fund the 1990 Unified
Planning Work Program, be and the same are hereby approved. Copies
of which are on file in the City Clerk's office.
SECTION 2.
The President of the Council is hereby authorized to execute said
Contract on behalf of Pueblo, a Municipal Corporation, and the City
Clerk shall affix the Seal of the City thereto and attest the same.
SECTION 3.
This Ordinance shall become effective immediately upon passage
and approval.
INTRODUCED January 22 1990
By: KENNETH HUNTER
Councilman
APP D:
P�tde�n
f City Council
ATTEST:
f ..
4e la'�
Clerk
UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION
URBAN MASS TRANSPORTATION ADMINISTRATION
NOTIFICATION OF GRANT APPROVAL
SECTIONS 9 & 9B OF THE
URBAN MASS TRANSPORTATION ACT OF 1964, AS AMENDED
PROGRAM NO.: CO -90- X051 -00
GRANTEE City of Pueblo, CO
DESIGNATED RECIPIENT City of Pueblo, CO
ESTIMATED TOTAL PROGRAM COST One Million, Sixteen Thousand,
Seven Hundred Eighty -Five Dollars ($1,016,785)
MAXIMUM FEDERAL GRANT AMOUNT Five Hundred Twenty Thousand,
Forty -Seven Dollars ($520,047)
IDENTIFICATION OF SOURCES OF FEDERAL FINANCIAL ASSISTANCE:
Total
Accounting Classification Code Amount
87.21.90.91.1.02 (Planning - 80/20) $ 31,080
87.21.90.91.1.04 (Operating) 488.967
Total $520,047
DATE OF SECTION 13(c) CERTIFICATION
PROGRAM DESCRIPTION (See attached Approved Program of Projects
and Budget)
COMPLETION DATE December 31, 1990
pg g �
OBLIGATION DATE
�T
RIG NAL MANAGER
U.S. Department REGION VIII Federal Office Building
of Transportation Arizona, Colorado, Montana 1961 Stout Street
Urban Mass Nevada, North Dakota, Room 520
Transportation South Dakota, Utah, Wyoming Denver, Colorado 80294
Administration
APPROVED PROGRAM OF PROJECTS AND BUDGET
Grantee: City of Pueblo, CO
Program No.: CO - 90- X051 -00
Budget No.: 01
Date: December 29, 1989
Project Description Federal Total Amount Amount
I. Operating Assistance $488,967 $ 977,935
Eligible net transit operating expenses
for the period January 1, 1990 through
December 31, 1990
II. Planning Assistance - 80/20: $ 31,080 $ 38,850
Support of Pueblo UZA FY1990
UPWP
III. Total Assistance: $520,047 $1,016,785
IDENTIFICATION OF SOURCES OF FEDERAL FINANCIAL ASSISTANCE:
Accounting Classification Code
87.21.90.91.1.02 (Planning - 80/20)
87.21.90.91.1.04 (Operating)
Total
Amount
$ 31,080
488,967
$520,047
UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION
URBAN MASS TRANSPORTATION ADMINISTRATION
GRANT
SECTIONS 3, 8, 9, 9B, AND /OR 24 OF THE
URBAN MASS TRANSPORTATION ACT OF 1964, AS AMENDED
49 U.S.C. APP. §§ 1601 et sect.
AND /OR
TITLE 23, UNITED STATES CODE
PART I
THIS GRANT, effective on the date specified in the Notification
of Grant Approval, is entered into by and between the United
States of America ( "Government ") and the Grantee named in the
Notification of Grant Approval.
In consideration of the mutual covenants, promises, and
representations herein, the parties hereto agree as follows:
Section 1. Purpose of Grant - The purpose of this Grant is
to provide for the undertaking of an urban mass transportation
planning, acquisition, construction, improvement, and /or operating
program ( "Program ") or project ( "Project ") as authorized under the
Urban Mass Transportation Act of 1964, as amended (UMT Act),
and /or amendments to title 23, U.S.C. (Highways) with Federal
financial assistance to the Grantee in the form of a grant
( "Grant "), for the purposes set forth in the Program /Project
Description in the Notification of Grant Approval that are in
accordance with the statutes and any implementing regulations or
guidelines; and to state the terms and conditions upon which such
assistance will be provided and the manner in which the Project or
the projects in the Program will be undertaken and the Program or
Project planning studies, facilities, or equipment will be used.
Section 2. The Program /Project - The Grantee agrees to
undertake and complete the Program or Project, and to provide for
the use of the Program or Project facilities or equipment,
substantially as described in its Application, incorporated herein
by reference, filed with and approved by the Government, and in
accordance with the terms and conditions of this Grant. The
"Program /Project Description" in the Notification of Grant
Approval describes the Program or Project to be funded by this
Grant.
Form UMTA F 2018
5/89
Page 1
Section 3. Federal Assistance - a. In order to assist the
Grantee in financing that portion of the total cost of the
Project or the projects in the Program that the Department of
Transportation (DOT) has determined cannot reasonably be financed
from revenues of the public transportation system in which the
Program or Project facilities or equipment are to be used
( "Net Project Cost "), such Net Project Cost total of the Project
or projects financed in this Program being estimated to be that
amount stated in the Notification of Grant Approval, the
Government will make a Grant in an amount equal to either (1) the
maximum amount permitted by Federal law and regulations, or (2)
the amount designated as Maximum Federal Funds Approved in the
Notification of Grant Approval, or (3) the amount designated as
Maximum Percentage(s) of Federal Participation as set forth in the
Notification of Grant Approval, whichever is the least. With
respect to operating assistance projects financed under Section 9
of the UMT Act, notwithstanding any provision to the contrary in
Section 105.c. of Part II, Form F 5K, Rev. 5/89, entitled Urban
Mass Transportation Agreement, the Federal financial assistance
provided under this Grant may be applied to the Net Project Costs
incurred for operations by the Grantee in the Project Time Period
for operations projects designated in the list of Program of
Projects attached to the Notification of Grant Approval.
b. For purposes of this Grant, "Net Project Cost" must
be in conformance with the requirements of Office of Management
and Budget (OMB) Circular A -87, Revised, "Cost Principles
Applicable to Grants and Contracts with State and Local
Governments," and with any guidelines or regulations issued by
the Government.
C. The obligation of the Government to make Federal Grant
payments shall not exceed the amount provided in the Program
or Project Budget.
Section 4. Local Share - The Grantee agrees that it will
provide from sources other than (a) Federal funds (except as may
otherwise be authorized by Federal statute), (b) receipts from the
use of the Program or Project facilities or equipment (except as
may otherwise be authorized by Federal statute) or (c) revenues of
the public transportation system in which such facilities or
equipment are used, funds in an amount sufficient, together with
the Grant, to assure payment of either the actual Project Cost of
each project in the Program or the actual Project Cost. The
Grantee further agrees that no refund or reduction of the amount
so provided will be made at any time, unless there is at the same
time a refund to the Government of a proportional amount of the
Grant. The Grantee's obligation to provide the Local Share is
calculated on a project -by- project basis either for each project
in the Program or the Project as a whole.
Page 2
Section 5. Labor Protection - The Grantee agrees to
undertake, carry out, and complete the Program or Project in
accordance 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 Program or Project and
meeting the requirements of section 13(c) of the UMT Act,
49 U.S.C. app. § 1609(c), and Department of Labor regulations at
29 C.F.R. Part 215. These terms and conditions are identified in
the letter of certification from the Department of Labor to the
Government on the date set forth in the Notification of Grant
Approval; that letter and any documents cited in that letter are
incorporated into this Grant by reference. The Grantee agrees to
carry out the Grant in compliance with the conditions stated in
the Department of Labor letter.
Section 6. Special Condition Pertaining to Financing
Section 3, Section 8, or Section 9B Projects
Sufficient funds must be available in the Mass Transit
Account of the Highway Trust Fund and an adequate liquidating cash
appropriation must have been enacted into law before payments may
be made to the Grantee under section 3, section 8, or section 9B
of the UMT Act, 49 U.S.C. app. §§ 1602. 1607, or 1607a -2.
Section 7. Special Requirement for Section 8 Pro'ects
Planning - The transportation plans and programs that are
developed as part of this Project shall be formulated on the basis
of transportation needs with the development of comprehensive
long -term financial plans, and due consideration of long -range
land use plans, developed objectives, and overall social,
economic, environmental, system performance, and energy
conservation goals and objectives, and with due consideration to
their probable effect on the future development of the urban areas
described in the Application. The planning process shall include
an analysis of alternative transportation system management and
investment strategies to make more efficient use of existing
transportation resources and to meet the needs for new
transportation facilities. The process shall consider all modes
of transportation and shall be continuing, cooperative, and
comprehensive to the degree appropriate based on the complexity of
the transportation problems. Furthermore, the plans and programs
that are developed as part of this Project shall encourage to the
maximum extent feasible the participation of private enterprise.
Should facilities and equipment already being used in mass
transportation service in the urban area be acquired, the program
must provide that they shall be so improved that they will better
serve the transportation needs of the area.
Page 3
Section 8. Special Requirements for Section 9 Pro
a. Fares and Services - The Grantee 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.
b. Audit Requirement - The Government may, at
least annually and more frequently in its discretion, either
conduct or require the Grantee to have independently conducted,
reviews and audits as the Government may deem appropriate
pursuant to the provisions of section 9(g) of the UMT Act,
49 U.S.C. app. § 1607a(g), and any regulations or guidelines that
may be issued by the Government.
C. Half -Fare Requirement - The Grantee agrees and
assures that the rates charged elderly and handicapped persons
during nonpeak hours for transportation utilizing or involving the
facilities and equipment financed pursuant to this Grant 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 Grantee or is by another entity under lease or
otherwise. The Grantee agrees and assures that it will give the
rate required herein to any person presenting a Medicare card duly
issued to that person pursuant to title II or title XVIII of the
Social Security Act.
d. Sole Source Procurement - The Grantee may,
without prior Government (UMTA) approval, procure an associated
capital item eligible under section 9(j) of the UMT Act, 49 U.S.C.
app. § 1607a(j), by contract directly with the original
manufacturer or supplier of the item to be replaced, provided that
the Grantee 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; notwithstanding the foregoing
provision, however, the Buy America requirements of the Surface
Transportation Assistance Act of 1982, Pub. L. 97 -424, § 165, as
amended by Pub. L. 100 -17, § 337, and any implementing regulations
that may be issued are applicable to such procurements.
Section 9. Special Condition Pertaining to Malor Capital
Projects
The Grantee shall implement a project management plan, as
approved by the Government, in accordance with the requirements
of section 23 of the UMT Act, 49 U.S.C. app. § 1619, and any
implementing regulations that may be issued thereunder.
Page 4
Sec. 10. Special Requirement - Pursuant to The Department
of Treasury Appropriations Act for Fiscal Year 1990, the
Recipient shall clearly set forth in any statement, press
release, request for proposals, bid solicitation, and other
documents describing projects or programs funded in whole or in
part with UMTA funds: (1) the percentage of the total cost of
the project financed with UMTA assistance and (2) the dollar
amount of UMTA assistance for the project.
Sec. 11. The Grant - This Grant consists of the
Notification of Grant Approval; this Part I, Form F 2018, 9/87,
entitled Urban Mass Transportation Administration Grant; and Part
II, Form UMTA F 5J, Rev. 9/87, entitled Urban Mass Transportation
Agreement, Terms and Conditions. Should the Grant award letter
include special conditions for Projects in this Program, that
letter is incorporated herein by reference and made part of this
Grant. Amendments to any of these documents shall require a
formal amendment to this Grant, except that reallocations of
funds among budget items or fiscal years, which reallocations do
not increase the total amount of the Federal Grant, may be made
in accordance with all UMTA circulars and regulations.
Amendments of any type that pertain to funding shall require the
issuance of a new Program Budget.
Sec 12. Execution of Grant - This Grant may be
simultaneously executed in several counterparts, each of which
counterparts shall be deemed to be an original having identical
legal effect. When the Notification of Grant Approval is signed
by the Government, this Grant should be executed by the Grantee
within ninety (90) days after the Obligation Date. The
Government may withdraw its obligation hereunder if the Grant is
not executed within the above ninety -day period. The effective
date of the Grant shall be the Obligation Date. The effective
date of any Amendment shall be the Obligation Date for that
Amendment.
The Grantee does hereby ratify and adopt all statements,
representations, warranties, covenants, and materials submitted
by it, and does hereby accept the Government's award of financial
assistance and agrees to all of the terms and conditions of this
Grant.
Executed this 1 f2'C1� day of 19
ATTEST: BY
L
rTS� C'ti,F�K
OP Tn
�. iY O F�c� c�.L G QTY of TQ-F -e , 0
TITLE AND ORGANIZATION TITLE AND ORGANIZATION
Page 5
CERTIFICATION OF GRANTEE'S ATTORNEY
I P d� , acting as Attorney for the Grantee
do hereby certify that I have examined this Grant and have
ascertained that execution of the Grant was authorized on the date
of _�c �� au:. f:J /i9v A copy of this authorization is
attached o has previously been submitted to UMTA. The execution
of this Grant and the proceedings taken by the Grantee are in all
respects due and proper and in accordance with applicable State
and local law. I further certify that, in my opinion, said Grant
constitutes a legal and binding obligation of the Grantee in
accordance with the terms thereof and certify that to the best of
my knowledge, there is no legislation or litigation pending or
threatened which might affect the performance of the Project in
accordance with the terms of this Grant.
41
Dated this /' - day of �,� ^��, lg
�l- rrs ==
SIGNATURE
TITLE AND ORGANIZATION
Page 6
UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION
URBAN MASS TRANSPORTATION ADMINISTRATION
L /
WASHINGTON, D.C. 20590
&C4"
URBAN MASS TRANSPORTATION AGREEMENT
PART II
TERMS AND CONDITIONS
For Projects under section 3, 4(i), 6, 8, 9, 9b, 16(b)(2), 18,
18(h), 20, and /or 24 of the Urban Mass Transportation Act of 1964,
as amended, 49 U.S.C. app. §§ 1601 et seq.; and for Mass
Transportation Projects under title 23, U.S.C. (Highways).
Form UMTA F 5K
Rev. 5/89
TABLE OF CONTENTS
Section 101.
Definitions....... ..... ........................1
Section 102.
Accomplishment of the Project .. ..................2
a. General Requirements ....................... 2
b. Pursuant to Federal, State, and Local Law ... 2
c. Funds of the Recipient ......................3
d. Submission of Proceedings, Contracts, and
Other Documents ...........................3
e. Changed Conditions of Performance
(Including Litigation) ....... ....... ....3
f. No Government Obligations to Third Parties..4
Section 103.
Project or Program Budget .........................4
Section 104.
Accounting Records .. ..............................4
a. Project Accounts .......... .................4
b. Funds Received or Made Available for the
Project ..... ..............................4
C. Allowable Costs ..... .......................4
d. Documentation of Project Costs ..............5
e. Checks, Orders and Vouchers .................5
f. Audit and Inspection ........................6
Section 105.
Payments ................ .......................6
a. Request by the Recipient for Payment ........ 6
b. Payment by the Government ...................7
C. Disallowed Costs ............................8
d. Prohibition Against Use of Federal Funds
For Lobbying ..............................9
e. Interest ..... ..............................9
f. Deobligation of Funds
Section 106.
.......................9
Right of the Government to Terminate ..............9
Section 107.
Project Completion, Audit, Settlement, and
Section 108.
Close - Out . ............................... .....10
Project Real Property, Equipment, and Supplies ... 10
Section 109.
Encumbrance of Project Property ..................12
Section 110.
Relocation and Land Acquisition ..................12
Section 111.
Section 112.
Flcod Hazards ....... .............................12
Bus Testing
Section 113.
.................. ...................12
Preaward and Postdelivery Audit ..............
Section 114.
...12
Civil Rights, Procurement, Settlement and Ethics.13
a. Equal Employment Opportunity ...............13
b. Small, Minority, and Women's Business
Enterprise . .............................13
C. Title VI - Civil Rights Act of 1964........15
d. Nondiscrimination on the Basis of Handicap.15
e. Competition in Procurement .................15
f. Force Account ... ................... ......16
g. Settlement of Third Party Contract Disputes
orBreaches .............................16
h. Ethics
........ .............................16
i. Interest of Members of or Delegates to
Congress .............................17
i
Section 115. Construction Contracts ................ . ..... •.•• .17
a. Nondiscrimination ................. ........17
b. Specifications .................... .........•19
c. Notice.... .25
d. Accommodations for the Physically
Handicapped.. •...27
e. Contract Security ............... '... ...27
f. Insurance During Construction .............. 27
g . Signs ........................... '.••••..27
h. Safety Standards ...........................27
..
i. Liquidated Damages ............. .....27
Section 116. Labor Provisions.... .................. .••
.28
a. Construction Contracts.. ... .28
.............
b. Nonconstruction Contracts ..................36
C. State and Local Government Employees ....... 36
Section 117. Environmental, Resource, Energy Protection,
and Conservation Requirements .................. 36
a. Environmental Policy.......... .36
b. Compliance with Environmental Standards.... 36
c. Air Pollution... ; .............. .'.." •37
d. Use of Public Lands ........................ 37
e. Historic Preservation........... .37
f. Energy Conservation...... ..38
g. Mitigation of Adverse Environmental
Effects...... .38
h. Use of Fly Ash in Cement and Concrete...... 38
Section 118. Patent Rights ............... .38
Section 119. Rights in Data..... . . .......
Section 120. Cargo Preference - Use ofUnited•States- Flag.•'
V essels ...................... .40
Section 121. Buy America ........... ......... .................41
Section 122. Charter Service operations.... �" " '• " .......42
p ons........ ... .. ...... '•'•'••42
Section 123. School Bus Oerati ... ..
Section 124. Private Enterprise........
Section 125. Privacy...... " .'. " .. .. .. .......... •••••••
Section 126. Hatch Act.. ��'��'��•��� " " " " " " " " •42
Section 127. Prohibition of Drugs ..•..... ........ •••••44
Section 128. Debarment and Suspension... " " " " " ••••
Section 129. False or Fraudulent Statements or ' Claims.........
Section 130. Miscellaneous.. ........... 45
a. Bonus or Commission..'... ...... '•'•••45
b. State or Territorial Law.... '...........•••45
c. Records...... .................45
d. Severability .. ...................•.......
ii
DEPARTMENT OF TRANSPORTATION
URBAN MASS TRANSPORTATION ADMINISTRATION
AGREEMENT
PART II - TERMS AND CONDITIONS
Constituting part of the AGREEMENT providing for
Federal financial assistance under the provisions of
the Urban Mass Transportation Act of 1964, as amended,
49 U.S.C. app. §§ 1601 et sea. and /or title 23,
U.S.C. (Highways).
Section 101. Definitions As used in this Agreement:
a. Agreement means any Grant Agreement or Cooperative Agreement.
b. Application means the signed and dated proposal as may be
amended for Federal financial assistance for the Project, together
with all explanatory, supporting, and supplementary documents
heretofore filed with and accepted and approved by the Government
(UMTA) by or on behalf of the Recipient.
c. Approval, Authorization, Concurrence waiver means a conscious
written act by an authorized official of the Government granting
permission to the Recipient to perform or omit an action 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.
d. 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.
e. Government means the United States of America, or its
cognizant agency, the Department of Transportation (DOT), or
its operating administration, the Urban Mass Transportation
Administration (UMTA), used hereafter interchangeably.
f. 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.
Page 1
g. Project means the task or set of tasks provided for in the
Project Budget which the Recipient undertakes to perform pursuant
to this Agreement with the Government. In the case of financial
assistance under section 9 of the Urban Mass Transportation Act
of 1964, as amended, the term "Project" encompasses both "Program"
and "each Project within the Program," as the context may require,
to effectuate the particular requirements of this Agreement.
h. 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 Recipient 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.
i. Recipient means any entity that receives Federal assistance
from UMTA for the accomplishment of the Project. The term
"Recipient" includes "Grantee."
j. Secretary means Secretary of the Department of Transportation
or his or her duly authorized designee.
k. UMTA means the Urban Mass Transportation Administration of the
U.S. Department of Transportation.
Section 102. Accomplishment of the Project
a. General Requirements The Recipient shall commence, carry
out, and complete the Project with all practicable dispatch, in a
sound, economical, and efficient manner, and in accordance with
the provisions hereof, the Application, and all applicable laws,
regulations, UMTA directives, Project or Program schedules, and
published policies. In general, the terms of the Department of
Transportation regulations, "Uniform Administrative Requirements
for Grants and Cooperative Agreements to State and Local
Governments," 49 C.F.R. Part 18, is applicable to Projects with
governmental bodies. The terms of Office and Management Budget
(OMB) Circular A -110, Revised, "Uniform Administrative
Requirements for Grants and Agreements with Institutions of Higher
Education, Hospitals, and Other Nonprofit Organizations," are
generally applicable to Projects with nongovernmental bodies.
When OMB Circular A -110 is merged with 49 C.F.R. Part 18, the
terms of the new regulation will be applicable as set forth in its
provisions, subject to modifications by UMTA.
b. Pursuant to Federal, State, and Local Law In the performance
of its obligations pursuant to this Agreement, the Recipient
agrees to comply with all applicable provisions of Federal, State,
and local laws, regulations, and UMTA directives. The Recipient
understands and agrees that Federal laws, regulations, policies,
Page 2
and related administrative practices in force and made applicable
to this Agreement on the date of execution may be modified from
time to time, and that the most recent of such provisions will
govern administration of this Agreement at any particular time,
except if there is sufficient evidence in the Agreement of a
contrary intent. Such contrary intent might be evidenced by
express language in the Notification of Grant or Assistance
Approval or Part I of this Agreement, which language modifies or
otherwise conditions the language of a particular provision of
Part II of this Agreement. Likewise, new Federal laws,
regulations, policies and administrative practices may be
established after the date of execution and thereafter be applied
to this Agreement. As may be necessary to achieve compliance with
these requirements, the Recipient 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 Recipient shall inform the Government
(UMTA) in order than an appropriate resolution may be arranged.
C. Funds of the Recipient The Recipient shall initiate and
prosecute to completion all proceedings necessary to enable the
Recipient to provide its share of the Project costs at or prior to
the time that such funds are needed to meet Project expenses.
d. Submission of Proceedings, Contracts and Other Documents The
Recipient shall submit to the Government such data, reports,
records, contracts, and other documents relating to the Project as
the Government may, during the course of the Project and for three
years thereafter, require. The Recipient 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 Government as the Government may require.
Reporting and record - keeping requirements (1) for governmental
recipients are set forth in 49 C.F.R. Part 18, and (2) for
non - governmental recipients are set forth in OMB Circular A -110.
Project closeout does not alter these requirements.
e. Changed Conditions of Performance (Including Litigation) The
Recipient shall immediately notify the Government (UMTA) of any
change in local law, conditions, or any other eve.,:Y that may
significantly affect its ability to perform the Project in
accordance with the terms of this Agreement. In addition, the
Recipient shall immediately notify the Government (UMTA) of any
decision pertaining to the Recipient's conduct of litigation that
may affect the Government's interests in the Project or the
Government's administration or enforcement of applicable Federal
laws or regulations. Before the Recipient may join the Government
as a named party to litigation, for any reason, the Recipient
agrees to first inform the Government; this proviso applies to any
type of litigation whatsoever, in any forum.
Page 3
f. No Government Obligations to Third Parties Absent the
Government's express, written consent and notwithstanding any
concurrence by the Government in or approval of the award of any
contract or subcontract or the solicitation thereof, the
Government shall not be subject to any obligations or liabilities
by contractors of the Recipient or their subcontractors or any
other person not a party to this Agreement in connection with the
performance of this Project.
Section 103. Protect or Program Budget
The Recipient shall prepare and maintain a Project or Program
Budget. The Recipient shall carry out the Project or Program and
shall incur obligations against and make disbursements of Project
or Program funds only in conformity with the latest approved
budget for the Project or Program. The Project or Program Budget
may be revised, from time to time, to the extent permitted by and
in conformance with the requirements of the Government.
Section 104. Accounting Records.
a. Project Accounts The Recipient shall establish and maintain
either a separate set of accounts or accounts, within the
framework of an established accounting system, for the Project in
a manner consistent with 49 C.F.R. § 18.20, or OMB Circular A -110,
as amended, as may be applicable.
b. Funds Received or Made Available for the Protect Consistent
with the provisions of 49 C.F.R. § 18.21, or OMB Circular A -110,
as amended, as may be applicable, the Recipient shall record in
the Project Account, and deposit in a bank or trust company all
Project payments received by it from the Government pursuant to
this Agreement and all other funds provided for, accruing to, or
otherwise received on account of the Project, (Project Funds). A
separate bank account may be required when drawdowns are made by
letter of credit. The Recipient is encouraged to use banks that
are owned at least 50 percent by minority group members.
c. Allowable Costs Expenditures made by the Recipient 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 or Program Description and the
Project or Program 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 Recipient (i.e., the price
paid minus any refunds, rebates, or other items of value
Page 4
received by the Recipient that have the effect of reducing the
cost actually incurred, excluding Program Income).
(5) Be incurred (and be for work performed) after the date
of this Agreement, unless specific authorization from the
Government (UMTA) to the contrary is received;
(6) Unless permitted otherwise by Federal statute or
regulation, conform with Federal guidelines or regulations and
Federal cost principles as set forth below:
(a) For Recipients that are governmental entities, the
standards of OMB Circular A -87, Revised, "Cost Principles for
State and Local Governments," are applicable.
(b) For Recipients that are educational institutions,
the standards of OMB Circular A -21, Revised, "Cost Principles for
Educational Institutions," are applicable.
(c) For Recipients that are nonprofit organizations,
the standards of OMB Circular A -122, Revised, "Cost Principles for
Nonprofit Organizations,' are applicable.
(d) For Recipients that are for - profit organizations,
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 for the Recipient; and those approved or prescribed by
the Recipient for its contractors.
d. Documentation of Project Costs and Program Income All costs
charged to the Project, including any approved services
contributed by the Recipient or others, shall be supported by
properly executed payrolls, time records, invoices, contracts, or
vouchers evidencing in detail the nature and propriety of the
charges. The Recipient shall also maintain accurate records of
all Project Funds derived from the implemention of the Project;
the foregoing provision, however, does not apply to income of the
Recipient that is determined by the Government to be private.
e. Checks, Orders, and Vouchers Any check or order drawn by the
Recipient 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
Recipient 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.
Page 5
f. Audit and Inspection The Recipient 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 Recipient 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 Recipient shall require those contractors to permit the
Secretary of Transportation and the Comptroller General of the
United States, or any of their duly authorized representatives to
inspect all work, materials, payrolls, and other data and records
with regard to the Project, and to audit the books, records, and
accounts pertaining to such contracts with regard to the Project.
A Recipient that is a State or local government or Indian tribal
government shall 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. Pursuant to Departmental criteria, the
Government (UMTA) may waive the OMB Circular A -128 audit
requirement or substitute a requirement for a grant audit
performed in accordance with the Comptroller General's standards.
The Recipient is responsible for obtaining any audits required by
the Government (UMTA). Closeout of the Project will not alter the
Recipient's audit responsibilities. To the extent that the
charges for such audits are necessary for the administration and
management of functions related to the Project, the costs of such
audits are allowable under this Project to the extent authorized
by OMB Circular A -87, Revised; OMB Circular A -21, Revised;
OMB Circular A -122, Revised; or 48 C.F.R. Part 31, as may be
applicable.
Section 105. Payments
a. Re quest by the Recipient for Payment The Recipient may make
a request for payment of the Federal share of allowable costs, and
the Government (UMTA) will honor such a request in the manner set
forth in Section 105 of this Part II of the Agreement. Each
payment made to the Recipient must comply with 31 C.F.R. Part 205.
To receive a Federal assistance payment, the Recipient must:
(1) Have demonstrated or certified that it will provide
local funds adequate, when combined with Federal payments, to
cover all costs to be incurred under the Project. If a Recipient
is required by Federal statute or this Agreement to provide a
local share, the Recipient may not request or obtain Federal funds
in excess of the amount justified by the local share that has been
provided. The Recipient may not take any action that would cause
the proportion of Federal funds made available to the Project at
any time to exceed the percentage authorized under the Agreement.
Any exception to 'this requirement must be set forth in writing by
the Government and signed by the UMTA Administrator or his or her
authorized designee.
Page 6
(2) Have submitted to the Government (UMTA) all financial
and progress reports required to date under this Agreement; and
(3) Have identified the source(s) of financial assistance
provided under this Project or Program from which the payment is
to be derived.
b. Payment by the Government
The Government (UMTA) will determine whether payment will be
made by Letter of Credit or by the Automated Clearing House (ACH)
method of payment after submission of a requisition.
(1) Letter of Credit If payment is made under a letter of
credit, the Recipient agrees to comply with the following letter
of credit requirements pursuant to 31 C.F.R. Part 205:
(a) The Recipient may initiate cash drawdowns only when
actually needed for immediate disbursement required for Project
purposes. Therefore, the Recipient shall expend all Federal funds
obtained under the Project for Project purposes no later than
three (3) days after receipt of those funds. Failure to expend
those Federal funds within three (3) days of their receipt or to
return the funds to the Government (UMTA) within a reasonable
period may result in the termination of the Recipient's letter of
credit or other remedies authorized by Federal law or regulation.
(b) The Recipient shall report its cash disbursements
and balances in a timely manner as required by the Government.
(c) The Recipient shall provide for effective control
and accountability for all Project funds consistent with Federal
requirements and procedures for use of the letter of credit.
(d) The Recipient shall impose on its sub - recipients
all applicable requirements of Subsections 105.b.(1)(a), (b),
and (c) of Part II of this Agreement.
(e) The amount authorized on a letter of credit may
include cash requirements for Projects not yet obligated, and thus
does not always represent an amount legally obligated by the
Government (UMTA). Therefore, the Recipient may not draw down
funds for a Project in an amount that would exceed the sum
obligated by the Government (UMTA) for that Project. Thus the
certifying statement on SF 1193A, Letter of Credit, is not
applicable if the amount authorized on the letter of credit
exceeds the amount obligated.
(f) If the Recipient fails to honor the requirements of
Subsections 105.b.(1)(a), (b), (c), (d), or (e) of Part II of this
Agreement, the Government may revoke the portion of the letter of
credit that has not been obligated.
Page 7
(2) Requisition If the requisition method of payment is
used, the Recipient shall:
(a) Complete and submit Standard Form 3881, "Payment
Information Form - ACH Payment Vendor Payment System," to UMTA's
Accounting Division.
(b) Complete and submit Standard Form 270, "Request for
Advance or Reimbursement," to the designated UMTA office.
Upon receipt of a payment request and adequate accompanying
information, the Government will authorize payment by direct
deposit if the Recipient is complying with its obligations under
the Agreement, has satisfied the Government that it needs the
requested Federal funds during the requisition period, and is
making adequate progress toward the timely completion of the
Project. If all these circumstances are present, the Government
may reimburse apparent allowable costs incurred (or to be incurred
during the requisition period) by the Recipient up to the maximum
amount of Federal funds payable through the fiscal year in which
the requisition is submitted as stated in the Project Budget.
c. Disallowed Costs In determining the amount of Federal
assistance UMTA will provide, UMTA will exclude: (1) any Project
costs incurred by the Recipient prior to the date of either this
Agreement or the approved Project Budget (whichever is earlier),
unless otherwise permitted by Federal law or regulation or unless
an authorized representative of the Government advises in writing
to the contrary; (2) any costs incurred by the Recipient that are
not included in the latest approved Project Budget; and (3) any
costs attributable to goods or services received under a contract
or other arrangement that is required to be, but has not been,
concurred in or approved in writing by the Government (UMTA).
The Recipient agrees that reimbursement of any cost under
Section 105 of Part II of this Agreement does not constitute a
final Government decision about the allowability of that cost and
does not constitute a waiver of any violation by the Recipient of
the terms of this Agreement. The Recipient agrees that only after
an audit of the Project has been conducted will the Government
make a final determination of allowability. If the Government
determines that the Recipient is not entitled to receive any part
of the Federal funds requested, the Government will notify the
Recipient stating the reasons therefor. Project closeout will not
alter the Recipient's obligation to return any funds due to the
Government as a result of later refunds, corrections, or other
transactions. Nor will Project closeout alter the Government's
right to disallow costs and recover funds on the basis of a later
audit or other review. Unless prohibited by law, the Government
may offset any Federal assistance funds to be made available under
this Project necessary to satisfy any monetary claims that the
Government may have outstanding against the Recipient. Exceptions
pertaining to disallowed costs are set forth in UMTA directives or
in other written Federal guidance.
Page 8
d. Prohibition Against Use of Federal Funds for Lobbying
Neither the Recipient nor any sub - recipient may use Federal
assistance funds for publicity or propaganda purposes designed to
support or defeat legislation pending before Congress.
e. Interest The Recipient agrees that:
(1) Any interest earned by the Recipient on Federal funds
must be remitted to the Government, except as provided by the
Intergovernmental Cooperation Act, 31 U.S.C. § 6503(a), or the
Indian Self - Determination Act, 23 U.S.C. § 450.
(2) Upon notice by the Government (UMTA) to the Recipient
of specific amounts due the Government, the Recipient shall
promptly remit any excess payment of amounts or disallowed
costs to the Government (UMTA), including any interest due
thereon.
f. Deobligation of Funds The Government (UMTA) reserves
the right to deobligate unspent Federal funds prior to Project
closeout.
Section 106. Right of the Government to Terminate
The Recipient agrees that, upon written notice, the Government
may suspend or terminate all or part of the financial assistance
provided herein if the Recipient is, or has been, in violation
of the terms of this Agreement, or if the Government determines
that the purposes of the statute under which the Project is
authorized would not be adequately served by continuation of
Federal financial assistance for the Project. Any failure to
make reasonable progress or other violation of the Agreement
that significantly endangers substantial performance of the
Project shall be deemed to be a breach of this Agreement. In
general, termination of any financial assistance under this
Agreement will not invalidate obligations properly incurred
by the Recipient and concurred in by the Government (UMTA)
before the termination date, to the extent those obligations
cannot be cancelled. However, if the Recipient'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 Government (UMTA) to
be willful or unreasonable, the Government (UMTA) reserves the
right to require the Recipient to refund to the Government the
entire amount of Project funds provided by the Government or any
lesser amount as may be determined by the Government (UMTA).
The acceptance of a remittance by the Government of any or all
Project funds previously received by the Recipient or the
closeout of Federal financial participation in the Project
shall not constitute a waiver of any claim that the Government
may otherwise have arising out of this Agreement.
Page 9
Section 107. Project Completion Audit, Settlement and Closeout
Within 90 days of the Project completion date or termination by
the Government, the Recipient shall submit a final Financial
Status Report (Standard Form 269), a certification or summary of
Project expenses, and third party audit reports, as applicable.
Each governmental Recipient covered shall undertake the audits
required by 49 C.F.R. Part 18.26 and OMB Circular A -128. For a
nongovernmental Recipient, either the Government (UMTA) or an
agency 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 UMTA has
made payments to the Recipient in excess of the total amount of
the Federal assistance due, the Recipient shall promptly remit to
the Government (UMTA) that excess and interest as may be required
by Subsections 105.b. and 105.e. of Part II of this Agreement.
Project closeout occurs when the Government notifies the Recipient
and forwards the final Federal assistance payment or when the
Recipient's remittance of the proper refund has been acknowledged
by the Government. Project closeout shall not invalidate any
continuing obligations imposed on the Recipient by this Agreement
or by the Government's final notification or acknowledgment.
Section 108. Project Real Property, Equipment, and Supplies
The following conditions are applicable to real property,
equipment, and supplies financed under this Agreement:
a. The Recipient agrees to observe the property management
standards set forth in 49 C.F.R. §§ 18.31, 18.32, and 18.33, or
OMB Circular A -110, Attachment N, as appropriate, as now or
hereafter amended, and any guidelines or regulations that the
Government may issue. Exceptions to the requirements of
49 C.F.R. §§ 18.31, 18.32, and 18.33, and to OMB Circular A -110,
Attachment N must be specifically approved by the Government. The
Government reserves the right to require the Recipient 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 Government also reserves the right to direct the disposition
of real property or equipment financed with Federal assistance
funds made available under this Agreement, as set forth in
49 C.F.R. §§ 18.31 and 18.32 or OMB Circular A -110, Attachment N,
as may be applicable.
b. The Recipient 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 Recipient
Page 10
shall immediately notify the Government. Unless otherwise
approved by the Government, the Recipient shall remit to the
Government a proportional amount of the fair market value, if any,
of the real property, equipment, or supplies whose aggregate value
exceeds $5,000, which value shall be determined on the basis of
the ratio of the Federal assistance awarded by the Government to
the actual cost of the Project. The following guidelines shall be
followed in determining the fair market value. Unless otherwise
approved in writing by UMTA, the fair market value of equipment
and supplies will be the value of that property at the time
immediately before the reason occurred that prompted the decision
to withdraw that property from transit use. For example, in the
event of loss of or damage to the property by casualty or fire,
the fair market value of the property will be calculated
immediately before the loss or damage, irrespective of the extent
of insurance coverage. In the case of equipment and supplies,
fair market value shall be based on straight line depreciation of
the equipment and supplies, based on the industry standard for
useful life, irrespective of the reason for withdrawal of that
property from transit use. In the case of real property, the fair
market value shall be determined by competent appraisal based on
an appropriate date as determined by the Government consistent
with the standards of 49 C.F.R. Part 24. The Government, however,
reserves the right to require another method of valuation to be
used if the Government finds that special circumstances so require
to assure the protection of the Federal investment. In unusual
circumstances, the Recipient may request that another reasonable
method of determining fair market value be used, including but not
limited to accelerated depreciation, comparable sales, or
established market values. In determining whether to approve an
alternate method, the Government may consider any action taken,
omission made or unfortunate occurrence suffered by the Recipient
with respect to the preservation or conservation of the value of
the real property, equipment, or supplies that, for any reason,
have been withdrawn from service.
C. The Recipient further agrees that the Project real property,
equipment, and supplies shall be used for the provision of mass
transportation service within the area and in the manner set forth
in the Project Description. Should the Recipient unreasonably
delay in or refrain from using Project real estate or equipment,
in the manner set forth in the Project Description, the Government
reserves the right to require the Recipient to return the entire
amount of the Federal assistance expended on that real estate or
equipment. The Recipient shall keep satisfactory records with
regard to the use of the real property, equipment, and supplies,
and submit to the Government upon request such information as may
be required to assure compliance with this Section and shall
immediately notify the Government 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 Government reserves the right to require the
Recipient to restore Project real property, equipment, or supplies
Page 11
or pay for damage to Project real property, equipment, or supplies
as a result of abuse or misuse of such property with the
Recipient's knowledge and consent. Project closeout will not
alter the Recipient's property management obligations set forth at
49 C.F.R. §§ 18.31 and 18.32 or OMB Circular A -110, Attachment N.
Section 109. Encumbrance of Project Property
The Recipient 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 Recipient 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
Government (UMTA); nor may the Recipient, by any act or omission,
adversely affect the Federal interest or impair the Recipient's
continuing control over the use of Project real property or
equipment.
Section 110. Relocation and Land Acquisition
The Recipient 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.
Section 111. Flood Hazards
The Recipient 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.
Section 112. Bus Testing
The Recipient 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.
Section 113. Preaward and Postdelivery Audit
The Recipient shall comply with any regulations that may be issued
to implement section 12(j) of the Urban Mass Transportation Act,
cf 1964, as amended, 49 U.S.C. app. § 1608(j).
Page 12
Section 114. Civil Rights, Procurement, Settlement, and Ethics
a. Equal Employment Opportunity - The following requirements are
applicable to the Project:
(1) In connection with Project implementation, the
Recipient may not discriminate against any employee or applicant
for employment because of race, color, age, creed, sex, or
national origin. The Recipient shall take affirmative action to
ensure that applicants are employed, and that employees are
treated during employment, without regard to their race, color,
religion, sex, age, or national origin. Such action shall
include, but not be limited to, the following: employment,
upgrading, demotion or transfer, recruitment or recruitment
advertising, layoff or termination; rates of pay or other forms
of compensation; and selection for training, including
apprenticeship. The Recipient 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 subject to the provisions of Section 115.a. of Part II
of this Agreement, and shall require all such contractors to
insert a similar provision in all subcontracts, except
subcontracts for standard commercial supplies or raw materials.
(2) If, as a condition of assistance, the Recipient has
submitted, and the Government has approved, an equal employment
opportunity program that the Recipient agrees to carry out,
such program is incorporated into this Agreement by reference.
Such program shall be treated as a contractual obligation; and
failure to carry out the terms of that equal employment
opportunity program shall be treated as a violation of this
Agreement. Upon notification to the Recipient of its failure
to carry out the approved program, the Government will impose
such remedies as it may deem appropriate, which remedies may
include termination of financial assistance as set forth in
Section 106 of Part II of this Agreement or other measures that
may affect the ability of the Recipient to obtain future financial
assistance under the Urban Mass Transportation Act of 1964,
as amended, or title 23, United States Code (Highways).
b. Small, Minority and Women's Business Enterprise The
following provisions are applicable to the Project:
(1) The Recipient shall be responsible for meeting the
requirements regarding participation by minority business
enterprises (MBE) in Department of Transportation programs set
forth at 49 C.F.R. Part 23. Pursuant to the requirements of
49 C.F.R. § 23.43, the following clauses must be inserted in each
third party contract:
Page 13
(a) 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 MBE REQUIREMENTS OF 49 C.F.R. PART 23 APPLY TO THIS
AGREEMENT.
(b) MBE OBLIGATION THE RECIPIENT 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 IN WHOLE OR
IN PART WITH FEDERAL FUNDS PROVIDED UNDER THIS AGREEMENT. IN THIS
REGARD ALL RECIPIENTS AND CONTRACTORS SHALL TAKE ALL NECESSARY AND
REASONABLE STEPS IN ACCORDANCE WITH 49 C.F.R. PART 23 TO ENSURE
THAT MINORITY BUSINESS ENTERPRISES HAVE THE MAXIMUM OPPORTUNITY
TO COMPETE FOR AND PERFORM CONTRACTS. RECIPIENTS AND THEIR
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.
(2) If, as a condition of assistance, the Recipient has
submitted and the Department of Transportation has approved a
minority business enterprise affirmative action program that the
Recipient agrees to carry out, that program is incorporated into
this financial assistance Agreement by reference. That program
shall be treated as a legal obligation and failure to carry out
its terms shall be treated as a violation of this Agreement. Upon
notification to the Recipient of its failure to carry out the
approved program, the Department of Transportation shall impose
such sanctions as noted in 49 C.F.R. Part 23, Subpart E, which
sanctions may include termination of the Agreement or other
measures that may affect the Recipient's ability to obtain future
financial assistance from the Department of Transportation.
(3) The Recipient 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 Recipient or such remedy as the
Recipient deems appropriate.
(4) The Recipient shall take action concerning lessees as
follows:
(a) The Recipient shall not exclude MBE's from
participation in business opportunities by entering into
long -term, exclusive agreements with non -MBE's for the
operation of major transportation - related activities for the
provision of goods and services to the facility or to the
public on the facility.
Page 14
(b) A Recipient that 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 shall
submit for approval to the Department of Transportation with its
programs overall goals for the participation as lessees of firms
owned and controlled by MBE's. 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 Recipient shall review these
goals at least annually, and whenever they expire, analyzing
projected versus actual MBE participation during the period
covered by the review and any changes in factual circumstances
affecting the selection of goals. Following each review, the
Recipient shall submit new overall goals to the Department of
Transportation for approval. A Recipient that fails to meet its
goals for MBE lessees shall demonstrate to the Government in
writing that it made reasonable efforts to meet the goals.
(c) Except as provided in this section, the Recipient
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 MBE's.
(5) The Recipient agrees to include the clauses in
Subsections 114.b.(1)(a) and 114.b.(1)(b) of Part II of this
Agreement in all subsequent agreements between the Recipient and
any sub - recipient and in all subsequent contracts assisted by the
Government (UMTA) between the Recipient or sub - recipients and any
third party contractor.
c. Title VI Civil Rights Act of 1964 The Recipient 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 Recipient pursuant thereto.
d. Nondiscrimination on the Basis of Handicap The Recipient
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
Benefitting from Federal Financial Assistance," 49 C.F.R.
Part 27, and UMTA regulations, "Transportation for Elderly and
Handicapped Persons," 49 C.F.R. Part 609, and any amendments
thereto that may be issued.
e. Competition in Procurement The Recipient agrees to comply
with the Procurement Standards requirements set forth at
49 C.F.R. § 18.36 or OMB Circular A -110, Attachment O, as may be
applicable; and with any supplementary directives or regulations
Page 15
including UMTA Circular 4220.1B; and any revisions thereof, as may
be applicable. UMTA reserves the right to review the Recipient's
technical specifications and requirements, where such review is
necessary for proper Project administration. The Recipient
further agrees that, notwithstanding the requirements of
Section 121 of Part II of this Agreement, no Federal funds shall
be used to support procurements utilizing exclusionary or
discriminatory specifications.
f. Force Account The Government (UMTA) reserves the right to
determine the extent of its participation in force account costs.
g. Settlement of Third Party Contract Disputes or Breaches The
Government has a vested interest in the settlement of any dispute,
default, or breach involving any federally- assisted third party
contract. 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 Recipient shall avail itself of all
legal rights available under any third party contract. The
Recipient shall notify the Government of any current or
prospective litigation or major disputed claim pertaining to
any third party contract. The Government reserves the right
to concur in any compromise or settlement of any claim by the
Recipient involving any third party contract. 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 Recipient wishes to join the Government as a named party to
litigation, for any reason, the Recipient agrees to inform the
Government before doing so; this proviso applies to any type of
litigation whatsoever, in any forum.
h. Ethics The Recipient 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 Recipient 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:
(1) The employee, officer, board member, or agent;
(2) Any member of his or her immediate family;
(3) His or her partner; or
(4) An organization that employs, or is about to employ,
any of the above.
Page 16
The code or standards shall also provide that the Recipient's
officers, employees, board members, or agents may neither
solicit nor accept gratuities, favors or anything of monetary
value from present or potential contractors or sub - recipients.
The Recipient may set minimum rules where the financial interest
is not substantial or the gift is an unsolicited item of nominal
intrinsic value. As permitted by State or local law or
regulations, such code or standards shall provide for penalties,
sanctions, or other disciplinary actions for violations by the
Recipient's officers, employees, board members, or agents, or by
contractors or sub - recipients or their agents.
i. 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.
Section 115. Construction Contracts The following provisions
are applicable to federally assisted construction contracts:
a. 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):
(1) The Recipient hereby agrees that it will incorporate or
cause to be incorporated into any contract for construction work,
or modification thereof, as defined in the regulations of the
Secretary of Labor at 41 C.F.R. Chapter 60, that is paid for in
whole or in part with funds obtained from the Federal Government
or borrowed on the credit of the Federal Government pursuant to a
grant, cooperative agreement, contract, loan, insurance, or
guarantee, or undertaken pursuant to a Federal program involving
the grant, cooperative agreement, contract, loan, insurance, or
guarantee, the following equal opportunity clause:
DURING THE PERFORMANCE OF THIS CONTRACT, THE CONTRACTOR AGREES AS
FOLLOWS:
(a) THE CONTRACTOR WILL NOT DISCRIMINATE AGAINST
ANY EMPLOYEE OR APPLICANT FOR EMPLOYMENT BECAUSE OF RACE,
COLOR, RELIGION, SEX, 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 17
(b) THE CONTRACTOR WILL, IN ALL SOLICITATIONS OR
ADVERTISEMENTS FOR EMPLOYEES PLACED BY OR ON BEHALF OF THE
CONTRACTOR, STATE THAT ALL QUALIFIED APPLICANTS WILL RECEIVE
CONSIDERATION FOR EMPLOYMENT WITHOUT REGARD TO RACE, COLOR,
RELIGION, SEX, OR NATIONAL ORIGIN.
(c) THE CONTRACTOR WILL SEND TO EACH LABOR UNION
OR REPRESENTATIVE OF WORKERS WITH WHICH IT HAS A COLLECTIVE
BARGAINING AGREEMENT OR OTHER CONTRACT OR UNDERSTANDING, A
NOTICE TO BE PROVIDED ADVISING THE LABOR UNION OR WORKERS'
REPRESENTATIVE OF THE CONTRACTOR'S COMMITMENTS UNDER SECTION 202
OF EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, AND SHALL POST
COPIES OF THE NOTICE IN CONSPICUOUS PLACES AVAILABLE TO EMPLOYEES
AND APPLICANTS FOR EMPLOYMENT.
(d) THE CONTRACTOR WILL COMPLY WITH ALL PROVISIONS OF
EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, AND OF THE RULES,
REGULATIONS, AND RELEVANT ORDERS OF THE SECRETARY OF LABOR.
(e) THE CONTRACTOR WILL FURNISH ALL INFORMATION AND
REPORTS REQUIRED BY EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965,
AND BY THE RULES, REGULATIONS, AND ORDERS OF THE SECRETARY OF
LABOR, OR PURSUANT THERETO, AND WILL PERMIT ACCESS TO ITS BOOKS,
RECORDS AND ACCOUNTS BY THE SECRETARY OF LABOR AND UMTA FOR
PURPOSES OF INVESTIGATION TO ASCERTAIN COMPLIANCE WITH SUCH RULES,
REGULATIONS, AND ORDERS.
(f) IN THE EVENT OF THE CONTRACTOR'S NONCOMPLIANCE WITH
THE NONDISCRIMINATION CLAUSES OF THIS AGREEMENT OR WITH ANY OF
SUCH RULES, REGULATIONS, OR ORDERS, THIS AGREEMENT MAY BE
CANCELLED, TERMINATED, OR SUSPENDED IN WHOLE OR IN PART AND THE
CONTRACTOR MAY BE DECLARED INELIGIBLE FOR FURTHER FEDERAL OR
FEDERALLY ASSISTED CONTRACTS IN ACCORDANCE WITH PROCEDURES
AUTHORIZED IN EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, AND
SUCH OTHER SANCTIONS MAY BE IMPOSED AND REMEDIES INVOKED AS
PROVIDED IN EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, OR BY
RULE, REGULATION, OR ORDER OF THE SECRETARY OF LABOR, OR AS
OTHERWISE PROVIDED BY LAW.
(g) THE CONTRACTOR WILL INCLUDE THE PROVISIONS OF
PARAGRAPHS (a) THROUGH (g) OF THIS SUBSECTION IN EVERY SUBCONTRACT
OR PURCHASE ORDER UNLESS EXEMPTED BY RULES, REGULATIONS, OR ORDERS
OF THE SECRETARY OF LABOR ISSUED PURSUANT TO SECTION 204 OF
EXECUTIVE ORDER 11246 OF SEPTEMBER 24, 1965, SO THAT SUCH
PROVISIONS SHALL BE BINDING UPON EACH SUBCONTRACTOR OR VENDOR.
THE CONTRACTOR WILL TAKE SUCH ACTION WITH RESPECT TO ANY
SUBCONTRACT OR PURCHASE ORDER AS THE SECRETARY OF LABOR OR UMTA
MAY DIRECT AS A MEANS OF ENFORCING SUCH PROVISIONS, INCLUDING
SANCTIONS FOR NONCOMPLIANCE; PR OVIDED , 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.
Page 18
(2) The Recipient 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.
(3) The Recipient further agrees that it will be bound by
this equal opportunity clause with respect to its own employment
practices when it participates in federally assisted construction
work; provided that if the Recipient so participating is a State
or local government, this equal opportunity clause does not apply
to any agency, instrumentality or subdivision of such government
that does not participate in work under the Agreement.
(4) The Recipient agrees that it will assist and cooperate
actively with 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.
(5) The Recipient 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
Recipient agrees that if it fails or refuses to comply with these
undertakings, UMTA may take any or all of the following actions:
Cancel, terminate, or suspend in whole or in part this Agreement;
refrain from extending any further assistance to the Recipient
under the program with respect to which the failure or refusal
occurred until satisfactory assurance of future compliance has
been received from such Recipient; and refer the case to the
Department of Justice for appropriate legal proceedings.
b. Specifications The Recipient hereby agrees that it
will incorporate or cause to be incorporated the specifications
set forth below into all Federal or federally assisted
construction contracts, or modifications thereof, in excess of
$10,000 to be performed in geographical areas designated by the
Director, Office of Federal Contract Compliance Programs of the
Department of Labor pursuant to the the regulations of the
Secretary of Labor at 41 C.F.R. § 60 -4.3 and in construction
subcontracts in excess of $10,000 necessary in whole or in part
to the performance of nonconstruction Federal contracts and
subcontracts covered under Executive Order 11246:
Page 19
STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION
CONTRACT SPECIFICATIONS (EXECUTIVE ORDER 11246):
(1) AS USED IN THESE SPECIFICATIONS:
(a) "COVERED AREA" MEANS THE GEOGRAPHICAL AREA
DESCRIBED IN THE SOLICITATION FROM WHICH THIS CONTRACT RESULTED;
(b) "DIRECTOR" MEANS DIRECTOR, OFFICE OF FEDERAL
CONTRACT COMPLIANCE PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
OR ANY PERSON TO WHOM THE DIRECTOR DELEGATES AUTHORITY;
(c) "EMPLOYER IDENTIFICATION NUMBER" MEANS THE FEDERAL
SOCIAL SECURITY NUMBER USED ON THE EMPLOYER'S QUARTERLY FEDERAL
TAX RETURN, U.S. TREASURY DEPARTMENT FORM 941;
(d) "MINORITY" INCLUDES:
(i) BLACK (ALL PERSONS HAVING ORIGINS IN ANY OF
THE BLACK AFRICAN RACIAL GROUPS NOT OF HISPANIC ORIGIN);
(ii) HISPANIC (ALL PERSONS OF MEXICAN,
PUERTO RICAN, CUBAN, CENTRAL OR SOUTH AMERICAN OR OTHER
SPANISH CULTURE OR ORIGIN, REGARDLESS OF RACE);
(iii) ASIAN AND PACIFIC ISLANDER (ALL PERSONS
HAVING ORIGINS IN ANY OF THE ORIGINAL PEOPLES OF THE FAR EAST,
SOUTHEAST ASIA, THE INDIAN SUBCONTINENT, OR THE PACIFIC ISLANDS)
AND
(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 WHICH
HAVE UNIONS PARTICIPATING IN THE PLAN. CONTRACTORS MUST BE ABLE
Page 20
TO DEMONSTRATE THEIR PARTICIPATION IN AND COMPLIANCE WITH THE
PROVISIONS OF ANY SUCH HOMETOWN PLAN. EACH CONTRACTOR OR
SUBCONTRACTOR PARTICIPATING IN AN APPROVED PLAN IS INDIVIDUALLY
REQUIRED TO COMPLY WITH ITS OBLIGATIONS UNDER THE EEO CLAUSE, AND
TO MAKE A GOOD FAITH EFFORT TO ACHIEVE EACH GOAL UNDER THE PLAN IN
EACH TRADE IN WHICH IT HAS EMPLOYEES. THE OVERALL GOOD FAITH
PERFORMANCE BY OTHER CONTRACTORS OR SUBCONTRACTORS TOWARD A GOAL
IN AN APPROVED PLAN DOES NOT EXCUSE ANY COVERED CONTRACTOR'S OR
SUBCONTRACTOR'S FAILURE TO MAKE GOOD FAITH EFFORTS TO ACHIEVE THE
PLAN GOALS AND TIMETABLES.
(4) THE CONTRACTOR SHALL IMPLEMENT THE SPECIFIC AFFIRMATIVE
ACTION STANDARDS PROVIDED IN PARAGRAPHS (7)(a) THROUGH (p) OF
THESE SPECIFICATIONS. THE GOALS SET FORTH IN THE SOLICITATION
FROM WHICH THIS CONTRACT RESULTED ARE EXPRESSED AS PERCENTAGES OF
THE TOTAL HOURS OF EMPLOYMENT AND TRAINING OF MINORITY AND FEMALE
UTILIZATION THE CONTRACTOR SHOULD REASONABLY BE ABLE TO ACHIEVE IN
EACH CONSTRUCTION TRADE IN WHICH IT HAS EMPLOYEES IN THE COVERED
AREA. COVERED CONSTRUCTION CONTRACTORS PERFORMING CONSTRUCTION
WORK IN GEOGRAPHICAL AREAS WHERE THEY DO NOT HAVE A FEDERAL OR
FEDERALLY ASSISTED CONSTRUCTION CONTRACT SHALL APPLY THE MINORITY
AND FEMALE GOALS ESTABLISHED FOR THE GEOGRAPHICAL AREA WHERE THE
WORK IS BEING PERFORMED. GOALS ARE PUBLISHED PERIODICALLY IN THE
FEDERAL REGISTER IN NOTICE FORM, AND SUCH NOTICES MAY BE OBTAINED
FROM ANY OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS OFFICE OR
FROM FEDERAL PROCUREMENT CONTRACTING OFFICERS. THE CONTRACTOR IS
EXPECTED TO MAKE SUBSTANTIALLY UNIFORM PROGRESS TOWARD ITS GOAL IN
EACH CRAFT DURING THE PERIOD SPECIFIED.
(5) NEITHER THE PROVISIONS OF ANY COLLECTIVE BARGAINING
AGREEMENT, NOR THE FAILURE BY A UNION WITH WHOM THE CONTRACTOR
HAS A COLLECTIVE BARGAINING AGREEMENT, TO REFER EITHER MINORITIES
OR WOMEN SHALL EXCUSE THE CONTRACTOR'S OBLIGATIONS UNDER THESE
SPECIFICATIONS, EXECUTIVE ORDER 11246, OR THE REGULATIONS
PROMULGATED PURSUANT THERETO.
(6) IN ORDER FOR THE NONWORKING TRAINING HOURS OF
APPRENTICES AND TRAINEES TO BE COUNTED IN MEETING THE GOALS, SUCH
APPRENTICES AND TRAINEES MUST BE EMPLOYED BY THE CONTRACTOR DURING
THE TRAINING PERIOD, AND THE CONTRACTOR MUST HAVE MADE A
COMMITMENT TO EMPLOY THE APPRENTICES AND TRAINEES AT THE
COMPLETION OF THEIR TRAINING, SUBJECT TO THE AVAILABILITY OF
EMPLOYMENT OPPORTUNITIES. TRAINEES MUST BE TRAINED PURSUANT TO
TRAINING PROGRAMS APPROVED BY THE U.S. DEPARTMENT OF LABOR.
(7) THE CONTRACTOR SHALL TAKE SPECIFIC AFFIRMATIVE
ACTIONS TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY. THE EVALUATION
OF THE CONTRACTOR'S COMPLIANCE WITH THESE SPECIFICATIONS SHALL
BE BASED UPON ITS EFFORT TO ACHIEVE MAXIMUM RESULTS FROM ITS
ACTIONS. THE CONTRACTOR SHALL DOCUMENT THESE EFFORTS FULLY, AND
SHALL IMPLEMENT AFFIRMATIVE ACTION STEPS AT LEAST AS EXTENSIVE
AS THE FOLLOWING:
Page 21
(a) ENSURE AND MAINTAIN A WORKING ENVIRONMENT FREE OF
HARASSMENT, INTIMIDATION, AND COERCION AT ALL SITES, AND IN ALL
FACILITIES AT WHICH THE CONTRACTOR'S EMPLOYEES ARE ASSIGNED TO
WORK. THE CONTRACTOR, WHERE POSSIBLE, WILL ASSIGN TWO OR MORE
WOMEN TO EACH CONSTRUCTION PROJECT. THE CONTRACTOR SHALL
SPECIFICALLY ENSURE THAT ALL FOREMEN, SUPERINTENDENTS, AND OTHER
ON -SITE SUPERVISORY PERSONNEL ARE AWARE OF AND CARRY OUT THE
CONTRACTOR'S OBLIGATION TO MAINTAIN SUCH A WORKING ENVIRONMENT,
WITH SPECIFIC ATTENTION TO MINORITY OR FEMALE INDIVIDUALS WORKING
AT SUCH SITES OR IN SUCH FACILITIES.
(b) ESTABLISH AND MAINTAIN A CURRENT LIST OF MINORITY
AND FEMALE RECRUITMENT SOURCES, PROVIDE WRITTEN NOTICE TO MINORITY
AND FEMALE RECRUITMENT SOURCES AND TO COMMUNITY ORGANIZATIONS WHEN
THE CONTRACTOR OR ITS UNIONS HAVE EMPLOYMENT OPPORTUNITIES
AVAILABLE, AND MAINTAIN A RECORD OF THE ORGANIZATIONS' RESPONSES.
(c) MAINTAIN A CURRENT FILE OF THE NAMES, ADDRESSES
AND TELEPHONE NUMBERS OF EACH MINORITY AND FEMALE OFF- THE - STREET
APPLICANT AND MINORITY OR FEMALE REFERRAL FROM A UNION, A
RECRUITMENT SOURCE OR COMMUNITY ORGANIZATION AND OF WHAT ACTION
WAS TAKEN WITH RESPECT TO EACH SUCH INDIVIDUAL. IF SUCH
INDIVIDUAL WAS SENT TO THE UNION HIRING HALL FOR REFERRAL AND WAS
NOT REFERRED BACK TO THE CONTRACTOR BY THE UNION OR, IF REFERRED,
NOT EMPLOYED BY THE CONTRACTOR, THIS SHALL BE DOCUMENTED IN THE
FILE WITH THE REASON THEREFOR, ALONG WITH WHATEVER ADDITIONAL
ACTIONS THE CONTRACTOR MAY HAVE TAKEN.
(d) PROVIDE IMMEDIATE WRITTEN NOTIFICATION TO THE
DIRECTOR WHEN THE UNION OR UNIONS WITH WHICH THE CONTRACTOR HAS A
COLLECTIVE BARGAINING AGREEMENT HAS NOT REFERRED TO THE CONTRACTOR
A MINORITY PERSON OR WOMAN SENT BY THE CONTRACTOR, OR WHEN THE
CONTRACTOR HAS OTHER INFORMATION THAT THE UNION REFERRAL PROCESS
HAS IMPEDED THE CONTRACTOR'S EFFORTS TO MEET ITS OBLIGATIONS.
(e) DEVELOP ON- THE -JOB TRAINING OPPORTUNITIES AND /OR
PARTICIPATE IN TRAINING PROGRAMS FOR THE AREA WHICH EXPRESSLY
INCLUDE MINORITIES AND WOMEN, INCLUDING UPGRADING PROGRAMS AND
APPRENTICESHIP AND TRAINEE PROGRAMS RELEVANT TO THE CONTRACTOR'S
EMPLOYMENT NEEDS, ESPECIALLY THOSE PROGRAMS FUNDED OR APPROVED BY
THE DEPARTMENT OF LABOR. THE CONTRACTOR SHALL PROVIDE NOTICE OF
THESE PROGRAMS TO THE SOURCES COMPILED UNDER (7)(b) ABOVE.
(f) DISSEMINATE THE CONTRACTOR'S EEO POLICY BY
PROVIDING NOTICE OF THE POLICY TO UNIONS AND TRAINING PROGRAMS AND
REQUESTING THEIR COOPERATION IN ASSISTING THE CONTRACTOR IN
MEETING ITS EEO OBLIGATIONS; BY INCLUDING IT IN ANY POLICY MANUAL
AND COLLECTIVE BARGAINING AGREEMENT; BY PUBLICIZING IT IN THE
COMPANY NEWSPAPER, ANNUAL REPORT, ETC.; BY SPECIFIC REVIEW OF THE
POLICY WITH ALL MANAGEMENT PERSONNEL AND WITH ALL MINORITY AND
FEMALE EMPLOYEES AT LEAST ONCE A YEAR; AND BY POSTING THE COMPANY
EEO POLICY ON BULLETIN BOARDS ACCESSIBLE TO ALL EMPLOYEES AT EACH
LOCATION WHERE CONSTRUCTION WORK IS PERFORMED.
Page 22
(g) REVIEW, AT LEAST ANNUALLY, THE COMPANY'S EEO POLICY
AND AFFIRMATIVE ACTION OBLIGATIONS UNDER THESE SPECIFICATIONS
WITH ALL EMPLOYEES HAVING RESPONSIBILITY FOR HIRING, ASSIGNMENT,
LAYOFF, TERMINATION OR OTHER EMPLOYMENT DECISIONS INCLUDING
SPECIFIC REVIEW OF THESE ITEMS WITH ON -SITE SUPERVISORY PERSONNEL
SUCH AS SUPERINTENDENTS, GENERAL FOREMAN, ETC., PRIOR TO THE
INITIATION OF CONSTRUCTION WORK AT ANY JOB SITE. A WRITTEN
RECORD SHALL BE MADE AND MAINTAINED IDENTIFYING THE TIME AND
PLACE OF THESE MEETINGS, PERSONS ATTENDING, SUBJECT MATTER
DISCUSSED, AND DISPOSITION OF THE SUBJECT MATTER.
(h) DISSEMINATE THE CONTRACTOR'S EEO POLICY EXTERNALLY
BY INCLUDING IT IN ANY ADVERTISING IN THE NEWS MEDIA, SPECIFICALLY
INCLUDING MINORITY AND FEMALE NEWS MEDIA, AND PROVIDING WRITTEN
NOTIFICATION TO AND DISCUSSING THE CONTRACTOR'S EEO POLICY WITH
OTHER CONTRACTORS AND SUBCONTRACTORS WITH WHOM THE CONTRACTOR DOES
OR ANTICIPATES DOING BUSINESS.
(i) DIRECT RECRUITMENT EFFORTS, BOTH ORAL AND
WRITTEN, TO MINORITY, FEMALE AND COMMUNITY ORGANIZATIONS, TO
SCHOOLS WITH MINORITY AND FEMALE STUDENTS AND TO MINORITY AND
FEMALE RECRUITMENT AND TRAINING ORGANIZATIONS SERVING THE
CONTRACTOR'S RECRUITMENT AREA AND EMPLOYMENT NEEDS. NOT
LATER THAN ONE MONTH PRIOR TO THE DATE FOR THE ACCEPTANCE OF
APPLICATIONS FOR APPRENTICESHIP OR OTHER TRAINING BY ANY
RECRUITMENT SOURCE, THE CONTRACTOR SHALL SEND WRITTEN NOTICE
TO ORGANIZATIONS SUCH AS THE ABOVE, DESCRIBING THE OPENINGS,
SCREENING PROCEDURES, AND TESTS TO BE USED IN THE SELECTION
PROCESS.
(j) ENCOURAGE PRESENT MINORITY AND FEMALE EMPLOYEES
TO RECRUIT OTHER MINORITY PERSONS AND WOMEN AND, WHERE REASONABLE,
PROVIDE AFTER SCHOOL, SUMMER AND VACATION EMPLOYMENT TO MINORITY
AND FEMALE YOUTH, BOTH ON THE SITE AND IN OTHER AREAS OF THE
CONTRACTOR'S WORK FORCE.
(k) VALIDATE ALL TESTS AND OTHER SELECTION REQUIREMENTS
WHERE THERE IS AN OBLIGATION TO DO SO UNDER 41 C.F.R. PART 60 -3.
(1) CONDUCT, AT LEAST ANNUALLY, AN INVENTORY AND
EVALUATION AT LEAST OF ALL MINORITY AND FEMALE PERSONNEL FOR
PROMOTIONAL OPPORTUNITIES AND ENCOURAGE THESE EMPLOYEES TO SEEK
OR TO PREPARE FOR, THROUGH APPROPRIATE TRAINING, ETC., SUCH
OPPORTUNITIES.
(m) ENSURE THAT SENIORITY PRACTICES, JOB
CLASSIFICATIONS, WORK ASSIGNMENTS AND OTHER PERSONNEL PRACTICES
DO NOT HAVE A DISCRIMINATORY EFFECT BY CONTINUALLY MONITORING
ALL PERSONNEL AND EMPLOYMENT RELATED ACTIVITIES TO ENSURE THAT
THE EEO POLICY AND THE CONTRACTOR'S OBLIGATIONS UNDER THESE
SPECIFICATIONS ARE BEING CARRIED OUT.
Page 23
(n) ENSURE THAT ALL FACILITIES AND COMPANY ACTIVITIES
ARE NONSEGREGATED EXCEPT THAT SEPARATE OR SINGLE -USER TOILET AND
NECESSARY CHANGING FACILITIES SHALL BE PROVIDED TO ASSURE PRIVACY
BETWEEN SEXES.
(o) DOCUMENT AND MAINTAIN A RECORD OF ALL SOLICITATIONS
OF OFFERS FOR SUBCONTRACTS FROM MINORITY AND FEMALE CONSTRUCTION
CONTRACTORS AND SUPPLIERS, INCLUDING CIRCULATION OF SOLICITATIONS
TO MINORITY AND FEMALE CONTRACTOR ASSOCIATIONS AND OTHER BUSINESS
ASSOCIATIONS.
(p) CONDUCT A REVIEW, AT LEAST ANNUALLY, OF ALL
SUPERVISORS' ADHERENCE TO AND PERFORMANCE UNDER THE CONTRACTOR'S
EEO POLICIES AND AFFIRMATIVE ACTION OBLIGATIONS.
(8) CONTRACTORS ARE ENCOURAGED TO PARTICIPATE IN VOLUNTARY
ASSOCIATIONS THAT ASSIST IN FULFILLING ONE OR MORE OF THEIR
AFFIRMATIVE ACTION OBLIGATIONS SET FORTH IN PARAGRAPHS (7)(a)
THROUGH (p). THE EFFORTS OF A CONTRACTOR ASSOCIATION, JOINT
CONTRACTOR - UNION, CONTRACTOR- COMMUNITY, OR OTHER SIMILAR GROUP OF
WHICH THE CONTRACTOR IS A MEMBER AND PARTICIPANT, MAY BE ASSERTED
AS FULFILLING ANY ONE OR MORE OF ITS OBLIGATIONS UNDER PARAGRAPHS
(7)(a) THROUGH (p) OF THESE SPECIFICATIONS, PROVIDED THAT THE
CONTRACTOR ACTIVELY PARTICIPATES IN THE GROUP, MAKES EVERY EFFORT
TO ASSURE THAT THE GROUP HAS A POSITIVE IMPACT ON THE EMPLOYMENT
OF MINORITIES AND WOMEN IN THE INDUSTRY, ENSURES THAT THE CONCRETE
BENEFITS OF THE PROGRAM ARE REFLECTED IN THE CONTRACTOR'S MINORITY
AND FEMALE WORK FORCE PARTICIPATION, MAKES A GOOD FAITH EFFORT TO
MEET ITS INDIVIDUAL GOALS AND 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).
(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.
Page 24
(12) THE CONTRACTOR SHALL CARRY OUT SUCH SANCTIONS AND
PENALTIES FOR VIOLATION OF THESE SPECIFICATIONS AND OF THE EQUAL
OPPORTUNITY CLAUSE, INCLUDING SUSPENSION, TERMINATION AND
CANCELLATION OF EXISTING SUBCONTRACTS AS MAY BE IMPOSED OR ORDERED
PURSUANT TO EXECUTIVE ORDER 11246, AS AMENDED, AND ITS
IMPLEMENTING REGULATIONS, BY THE OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS. ANY CONTRACTOR WHO FAILS TO CARRY OUT SUCH
SANCTIONS AND PENALTIES SHALL BE IN VIOLATION OF THESE
SPECIFICATIONS AND EXECUTIVE ORDER 11246, AS AMENDED.
(13) THE CONTRACTOR, IN FULFILLING ITS OBLIGATIONS UNDER
THESE SPECIFICATIONS, SHALL IMPLEMENT SPECIFIC AFFIRMATIVE ACTION
STEPS, AT LEAST AS EXTENSIVE AS THOSE STANDARDS PRESCRIBED IN
PARAGRAPH (7) OF THESE SPECIFICATIONS, SO AS TO 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, ADDRESS, TELEPHONE NUMBERS,
CONSTRUCTION TRADE, UNION AFFILIATION IF ANY, EMPLOYEE
IDENTIFICATION NUMBER WHEN ASSIGNED, SOCIAL SECURITY NUMBER, RACE,
SEX, STATUS (E.G., MECHANIC, APPRENTICE TRAINEE, HELPER, OR
LABORER), DATES OF CHANGES IN STATUS, HOURS WORKED PER WEEK IN THE
INDICATED TRADE, RATE OF PAY, AND LOCATIONS AT WHICH THE WORK WAS
PERFORMED. RECORDS SHALL BE MAINTAINED IN AN EASILY
UNDERSTANDABLE AND RETRIEVABLE FORM; HOWEVER, TO THE EXTENT THAT
EXISTING RECORDS SATISFY THIS REQUIREMENT, CONTRACTORS SHALL NOT
BE REQUIRED TO MAINTAIN SEPARATE RECORDS.
(15) NOTHING HEREIN PROVIDED SHALL BE CONSTRUED AS A
LIMITATION UPON THE APPLICATION OF OTHER LAWS THAT ESTABLISH
DIFFERENT STANDARDS OF COMPLIANCE OR UPON THE APPLICATION OF
REQUIREMENTS FOR THE HIRING OF LOCAL OR OTHER AREA RESIDENTS
(E.G., THOSE UNDER THE PUBLIC WORKS EMPLOYMENT ACT OF 1.977 AND
THE COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM).
c. Notice The Recipient hereby agrees that it will
ensure that the notice set forth below shall be included
in, and shall be a part of, all solicitations for offers
and bids on all 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:
Page 25
NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE
EQUAL EMPLOYMENT OPPORTUNITY (EXECUTIVE ORDER 11246):
(1) THE OFFEROR'S OR BIDDER'S ATTENTION IS CALLED
TO THE "EQUAL OPPORTUNITY CLAUSE" AND THE "STANDARD FEDERAL
EQUAL EMPLOYMENT SPECIFICATIONS" SET FORTH HEREIN.
(2) (a) THE GOALS AND THE TIMETABLES FOR MINORITY AND
FEMALE PARTICIPATION, EXPRESSED IN PERCENTAGE TERMS FOR
THE CONTRACTOR'S .AGGREGATE WORK FORCE IN EACH TRADE ON ALL
CONSTRUCTION WORK IN THE COVERED AREA, ARE AS FOLLOWS:
TIMETABLES GOALS FOR MINORITY
PARTICIPATION IN
EACH TRADE
INSERT GOALS FOR
EACH YEAR
GOALS FOR FEMALE
PARTICIPATION IN
EACH TRADE
INSERT GOALS FOR
EACH YEAR
(b) THESE GOALS ARE APPLICABLE TO ALL THE CONTRACTOR'S
CONSTRUCTION WORK (WHETHER OR NOT IT IS FEDERAL OR FEDERALLY
ASSISTED) PERFORMED IN THE COVERED AREA. IF THE CONTRACTOR
PERFORMS CONSTRUCTION WORK IN A GEOGRAPHICAL AREA LOCATED OUTSIDE
OF THE COVERED AREA, IT SHALL APPLY THE GOALS ESTABLISHED FOR SUCH
GEOGRAPHICAL AREA WHERE THE WORK IS ACTUALLY PERFORMED. WITH
REGARD TO THIS SECOND AREA, THE CONTRACTOR ALSO IS SUBJECT TO THE
GOALS FOR BOTH ITS FEDERALLY INVOLVED AND NONFEDERALLY INVOLVED
CONSTRUCTION.
(c) THE CONTRACTOR'S COMPLIANCE WITH THE EXECUTIVE
ORDER AND THE REGULATIONS AT 41 C.F.R. PART 60 -4 SHALL BE BASED
ON ITS IMPLEMENTATION OF THE EQUAL OPPORTUNITY CLAUSE, SPECIFIC
AFFIRMATIVE ACTION OBLIGATIONS REQUIRED BY THE SPECIFICATIONS
SET FORTH AT 41 C.F.R. § 60- 4.3(a), AND ITS EFFORTS TO MEET THE
GOALS. THE HOURS OF MINORITY AND FEMALE EMPLOYMENT AND TRAINING
MUST BE SUBSTANTIALLY UNIFORM THROUGHOUT THE LENGTH OF THE
CONTRACT, AND IN EACH TRADE, AND THE CONTRACTOR SHALL MAKE A
GOOD FAITH EFFORT TO EMPLOY MINORITIES AND WOMEN EVENLY ON
EACH OF ITS PROJECTS. THE TRANSFER OF MINORITY OR FEMALE
EMPLOYEES OR TRAINEES FROM CONTRACTOR TO CONTRACTOR OR FROM
PROJECT TO PROJECT FOR THE SOLE PURPOSE OF MEETING THE
CONTRACTOR'S GOALS SHALL BE A VIOLATION OF THE CONTRACT, THE
EXECUTIVE ORDER, AND THE REGULATIONS IN AT C.F.R. PART 60 -4.
COMPLIANCE WITH THE GOALS WILL BE MEASURED AGAINST THE TOTAL WORK
HOURS PERFORMED.
Page 26
(3) THE CONTRACTOR SHALL PROVIDE WRITTEN NOTIFICATION TO THE
DIRECTOR OF THE OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS
WITHIN 10 WORKING DAYS OF AWARD OF ANY CONSTRUCTION SUBCONTRACT IN
EXCESS OF $10,000 AT ANY TIER FOR CONSTRUCTION WORK UNDER THE
CONTRACT RESULTING FROM THIS SOLICITATION. THE NOTIFICATION SHALL
LIST THE NAME, ADDRESS AND TELEPHONE NUMBER OF THE SUBCONTRACTOR;
EMPLOYER IDENTIFICATION NUMBER OF THE SUBCONTRACTOR; ESTIMATED
DOLLAR AMOUNT OF THE SUBCONTRACT; ESTIMATED STARTING AND
COMPLETION DATES OF THE SUBCONTRACT; AND THE GEOGRAPHICAL AREA IN
WHICH THE SUBCONTRACT IS TO BE PERFORMED.
(4) AS USED IN THIS NOTICE, AND IN THE CONTRACT RESULTING
FROM THIS SOLICITATION, THE "COVERED AREA" IS (INSERT DESCRIPTION
OF THE GEOGRAPHICAL AREAS WHERE THE CONTRACT IS TO BE PERFORMED,
GIVING THE STATE, COUNTY AND CITY, IF ANY).
d. Accommodations for the Physically Handicapped UMTA assisted
construction, designs, and alterations shall be undertaken in
accordance with and meet the requirements of the provisions of
General Services Administration (GSA) regulations set forth at
41 C.F.R. Subpart 101 -19.6, unless an exception is granted in
writing by UMTA or a waiver is granted in writing by GSA.
e. Contract Security The Recipient 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.
f. Insurance During Construction The Recipient shall, at a
minimum, comply with the insurance requirements normally imposed
by its State and local governments.
g. Signs The Recipient 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.
h. Safety Standards Pursuant to section 107 of the Contract
Work Hours and Safety Standards Act and Department of Labor
regulations set forth at 29 C.F.R. § 1926, no laborer or mechanic
working on a construction contract shall be required to work in
surroundings or under working conditions that are unsanitary,
hazardous, or dangerous to his or her health and safety as
determined under construction and health standards promulgated
by the Secretary of Labor.
i. Liquidated Damages The Recipient shall include in all
contracts for construction a clause providing for liquidated
damages, where appropriate. Liquidated damages clauses are
appropriate if the parties may reasonably expect to suffer damages
(increased costs on the Project involved) from the late completion
of the construction and the extent or amount of such damages would
Page 27
be difficult or impossible to determine. The assessment for
damages shall be at a specific rate per day for each day of
overrun in contract time; and the rate must be specified in the
third party contract. Any liquidated damages recovered shall be
credited to the Project account involved unless the Government
permits otherwise.
Section 116. Labor Provisions
a. Construction Contracts Pursuant to regulations set forth at
29 C.F.R. Part 5, the following provisions shall be incorporated
in each construction contract of $2,000 let by the Recipient in
carrying out the Project.
(1) MINIMUM WAGES
(a) ALL LABORERS AND MECHANICS EMPLOYED OR WORKING UPON
THE SITE OF THE WORK (OR UNDER THE UNITED STATES HOUSING ACT OF
1937 OR UNDER THE HOUSING ACT OF 1949 IN THE CONSTRUCTION OR
DEVELOPMENT OF THE PROJECT), WILL BE PAID UNCONDITIONALLY AND NOT
LESS OFTEN THAN ONCE A WEEK, AND WITHOUT SUBSEQUENT DEDUCTION OR
REBATE ON ANY ACCOUNT (EXCEPT SUCH PAYROLL DEDUCTIONS AS ARE
PERMITTED BY REGULATIONS ISSUED BY THE SECRETARY OF LABOR UNDER
THE COPELAND ACT, 29 C.F.R. PART 3), THE FULL AMOUNT OF WAGES AND
BONA FIDE FRINGE BENEFITS (OR CASH EQUIVALENTS THEREOF) DUE AT THE
TIME OF PAYMENT COMPUTED AT RATES NOT LESS THAN THOSE CONTAINED IN
THE WAGE DETERMINATION OF THE SECRETARY OF LABOR WHICH IS ATTACHED
HERETO AND MADE A PART HEREOF, REGARDLESS OF ANY CONTRACTUAL
RELATIONSHIP WHICH MAY BE ALLEGED TO EXIST BETWEEN THE CONTRACTOR
AND SUCH LABORERS AND MECHANICS. CONTRIBUTIONS MADE OR COSTS
REASONABLY ANTICIPATED FOR BONA FIDE FRINGE BENEFITS UNDER SECTION
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 PERFORMED, WITHOUT REGARD TO
SKILL, EXCEPT AS PROVIDED AT 29 C.F.R. § 5.5(a)(4), LABORERS OR
MECHANICS PERFORMING WORK IN MORE THAN ONE CLASSIFICATION MAY BE
COMPENSATED AT THE RATE SPECIFIED FOR EACH CLASSIFICATION FOR THE
TIME ACTUALLY WORKED THEREIN: PROVIDED, THAT THE EMPLOYER'S
PAYROLL RECORDS ACCURATELY SET FORTH THE TIME SPENT IN EACH
CLASSIFICATION IN WHICH WORK IS PERFORMED. THE WAGE DETERMINATION
(INCLUDING ANY ADDITIONAL CLASSIFICATION AND WAGE RATES CONFORMED
UNDER 29 C.F.R. § 5.5(a)(1)(ii) AND THE DAVIS -BACON POSTER
(WH -1321) SHALL BE POSTED AT ALL TIMES BY THE CONTRACTOR AND ITS
SUBCONTRACTORS AT THE SITE OF THE WORK IN A PROMINENT AND
ACCESSIBLE PLACE WHERE IT CAN BE EASILY SEEN BY THE WORKERS.
Page 28
(b) 1. THE CONTRACTING OFFICER SHALL REQUIRE THAT ANY
CLASS OF LABORERS OR MECHANICS THAT IS NOT LISTED IN THE WAGE
DETERMINATION AND THAT IS TO BE EMPLOYED UNDER THE CONTRACT SHALL
BE CLASSIFIED IN CONFORMANCE WITH THE WAGE DETERMINATION. THE
CONTRACTING OFFICER SHALL APPROVE AN ADDITIONAL CLASSIFICATION AND
WAGE RATE AND FRINGE BENEFITS THEREFOR ONLY WHEN THE FOLLOWING
CRITERIA HAVE BEEN MET:
a. THE WORK TO BE PERFORMED BY THE
CLASSIFICATION REQUESTED IS NOT PERFORMED BY A CLASSIFICATION
IN THE WAGE DETERMINATION; AND
b. THE CLASSIFICATION IS UTILIZED IN THE AREA
BY THE CONSTRUCTION INDUSTRY; AND
c. THE PROPOSED WAGE RATE, INCLUDING ANY
BONA FIDE FRINGE BENEFITS, BEARS A REASONABLE RELATIONSHIP
TO THE WAGE RATES CONTAINED IN THE WAGE DETERMINATION.
2. IF THE CONTRACTOR AND THE LABORERS AND
MECHANICS TO BE EMPLOYED IN THE CLASSIFICATION (IF KNOWN), OR
THEIR REPRESENTATIVES, AND THE CONTRACTING OFFICER AGREE ON THE
CLASSIFICATION AND WAGE RATE (INCLUDING THE AMOUNT DESIGNATED FOR
FRINGE BENEFITS WHERE APPROPRIATE), A REPORT OF THE ACTION TAKEN
SHALL BE SENT BY THE CONTRACTING OFFICER TO THE ADMINISTRATOR OF
THE WAGE AND HOUR DIVISION, EMPLOYMENT STANDARDS ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C. 20210. THE
ADMINISTRATOR, OR AN AUTHORIZED REPRESENTATIVE, WILL APPROVE,
MODIFY, OR DISAPPROVE EVERY ADDITIONAL CLASSIFICATION ACTION
WITHIN 30 DAYS OF RECEIPT AND SO ADVISE THE CONTRACTING OFFICER
OR WILL NOTIFY THE CONTRACTING OFFICER WITHIN THE 30 -DAY PERIOD
THAT ADDITIONAL TIME IS NECESSARY.
3. IN THE EVENT THE CONTRACTOR, LABORERS OR
MECHANICS TO BE EMPLOYED IN THE CLASSIFICATION OR THEIR
REPRESENTATIVES, AND THE CONTRACTING OFFICER DO NOT AGREE ON
THE PROPOSED CLASSIFICATION AND WAGE RATE (INCLUDING THE AMOUNT
DESIGNATED FOR FRINGE BENEFITS, WHERE APPROPRIATE), THE
CONTRACTING OFFICER SHALL REFER THE QUESTIONS INCLUDING THE
VIEWS OF ALL INTERESTED PARTIES AND THE RECOMMENDATION OF THE
CONTRACTING OFFICER, TO THE ADMINISTRATOR FOR DETERMINATION. THE
ADMINISTRATOR, OR AN AUTHORIZED REPRESENTATIVE, WILL ISSUE A
DETERMINATION WITHIN 30 DAYS OF RECEIPT AND SO ADVISE THE
CONTRACTING OFFICER OR WILL NOTIFY THE CONTRACTING OFFICER WITHIN
THE 30 -DAY PERIOD THAT ADDITIONAL TIME IS NECESSARY.
4. THE WAGE RATE (INCLUDING FRINGE BENEFITS WHERE
APPROPRIATE) DETERMINED PURSUANT TO 29 C.F.R. § 5.5(a)(i)(1)(B)
OR 29 C.F.R. § 5.5(a)(i)(1)(C), SHALL BE PAID TO ALL WORKERS
PERFORMING WORK IN THE CLASSIFICATION UNDER THIS CONTRACT
FROM THE FIRST DAY ON WHICH WORK IS PERFORMED IN THE
CLASSIFICATION.
Page 29
(c) WHENE'
CONTRACT FOR A CLASS
BENEFIT WHICH IS NOT
SHALL EITHER PAY THE
OR SHALL PAY ANOTHER
EQUIVALENT THEREOF.
VER THE MINIMUM WAGE RATE
OF LABORERS OR MECHANICS
EXPRESSED AS AN HOURLY R
BENEFIT AS STATED IN THE
BONA FIDE FRINGE BENEFIT
PRESCRIBED IN THE
INCLUDES A FRINGE
?ATE, THE CONTRACTOR
WAGE DETERMINATION
OR AN HOURLY CASH
(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
RECIPIENT 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 ANY SUBCONTRACTOR THE FULL AMOUNT OF WAGES REQUIRED
BY THE CONTRACT. IN THE EVENT OF FAILURE TO PAY ANY LABORER OR
MECHANIC, INCLUDING ANY APPRENTICE, TRAINEE, OR HELPER, EMPLOYED
OR WORKING ON THE SITE OF THE WORK (OR UNDER THE UNITED STATES
HOUSING ACT OF 1937 OR UNDER THE HOUSING ACT OF 1949 IN THE
CONSTRUCTION OR DEVELOPMENT OF THE PROJECT), ALL OR PART OF THE
WAGES REQUIRED BY THE CONTRACT, UMTA MAY, AFTER WRITTEN NOTICE
TO THE CONTRACTOR, SPONSOR, APPLICANT, OR OWNER, TAKE SUCH ACTION
AS MAY BE NECESSARY TO CAUSE THE SUSPENSION OF ANY FURTHER
PAYMENT, ADVANCE, OR GUARANTEE OF FUNDS UNTIL SUCH VIOLATIONS
HAVE CEASED.
(3) PAYROLLS AND BASIC RECORDS (a) PAYROLLS AND BASIC
RECORDS RELATING THERETO SHALL BE MAINTAINED BY THE CONTRACTOR
DURING THE COURSE OF THE WORK AND PRESERVED FOR A PERIOD OF
THREE YEARS THEREAFTER FOR ALL LABORERS AND MECHANICS WORKING
AT THE SITE OF THE WORK (OR UNDER THE UNITED STATES HOUSING
ACT OF 1937, OR UNDER THE HOUSING ACT OF 1949, IN THE CONSTRUCTION
OR DEVELOPMENT OF THE PROJECT). SUCH RECORDS SHALL CONTAIN
THE NAME, ADDRESS, AND SOCIAL SECURITY NUMBER OF EACH SUCH
WORKER, HIS OR HER CORRECT CLASSIFICATION, HOURLY RATES OF
WAGES PAID (INCLUDING RATES OF CONTRIBUTIONS OR COSTS ANTICIPATED
FOR BONA FIDE FRINGE BENEFITS OR CASH EQUIVALENTS THEREOF OF
THE TYPES DESCRIBED IN SECTION 1(b)(2)(B) OF THE DAVIS -BACON ACT),
Page 30
DAILY AND WEEKLY NUMBER OF HOURS WORKED, DEDUCTIONS MADE AND
ACTUAL WAGES PAID. WHENEVER THE SECRETARY OF LABOR HAS FOUND
UNDER 29 C.F.R. § 5.5(a)(1)(iv) THAT THE WAGES OF ANY LABORER
OR MECHANIC INCLUDE THE AMOUNT OF ANY COSTS REASONABLY
ANTICIPATED IN PROVIDING BENEFITS UNDER A PLAN OR PROGRAM
DESCRIBED IN SECTION 1(b)(2)(B) OF THE DAVIS -BACON ACT, THE
CONTRACTOR SHALL MAINTAIN RECORDS WHICH SHOW THAT THE COMMITMENT
TO PROVIDE SUCH BENEFITS IS ENFORCEABLE, THAT THE PLAN OR
PROGRAM IS FINANCIALLY RESPONSIBLE, AND THAT THE PLAN OR PROGRAM
HAS BEEN COMMUNICATED IN WRITING TO THE LABORERS OR MECHANICS
AFFECTED, AND RECORDS WHICH SHOW THE COSTS ANTICIPATED OR
THE ACTUAL COSTS INCURRED IN PROVIDING SUCH BENEFITS.
CONTRACTORS EMPLOYING APPRENTICES OR TRAINEES UNDER APPROVED
PROGRAMS SHALL MAINTAIN WRITTEN EVIDENCE OF THE REGISTRATION OF
APPRENTICESHIP PROGRAMS AND CERTIFICATION OF TRAINEE PROGRAMS,
THE REGISTRATION OF THE APPRENTICES AND TRAINEES, AND THE RATIOS
AND WAGE RATES PRESCRIBED IN THE APPLICABLE PROGRAMS.
(b) 1. THE CONTRACTOR SHALL SUBMIT WEEKLY FOR
EACH WEEK IN WHICH ANY CONTRACT WORK IS PERFORMED A COPY OF
ALL PAYROLLS TO UMTA IF UMTA IS A PARTY TO THE CONTRACT; BUT
IF UMTA IS NOT SUCH A PARTY, THE CONTRACTOR WILL SUBMIT THE
PAYROLLS TO THE APPLICANT, SPONSOR, OR OWNER, AS THE CASE
MAY BE, FOR TRANSMISSION TO UMTA. THE PAYROLLS SUBMITTED
SHALL SET OUT ACCURATELY AND COMPLETELY ALL OF THE INFORMATION
REQUIRED TO BE MAINTAINED UNDER 29 C.F.R. § 5.5(a)(3)(i).
THIS INFORMATION MAY BE SUBMITTED IN ANY FORM DESIRED.
OPTIONAL FORM WH -347 IS AVAILABLE FOR THIS PURPOSE AND
MAY BE PURCHASED FROM THE SUPERINTENDENT OF 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;
Page 31
c. THAT EACH LABORER OR MECHANIC HAS
BEEN PAID NOT LESS THAN THE APPLICABLE WAGE RATES AND FRINGE
BENEFITS OR CASH EQUIVALENTS FOR THE CLASSIFICATION OF WORK
PERFORMED, AS SPECIFIED IN THE APPLICABLE WAGE DETERMINATION
INCORPORATED INTO THE CONTRACT.
3. THE WEEKLY SUBMISSION OF A PROPERLY
EXECUTED CERTIFICATION SET FORTH ON THE REVERSE SIDE OF
OPTIONAL FORM WH -347 SHALL SATISFY THE REQUIREMENT FOR
SUBMISSION OF THE "STATEMENT OF COMPLIANCE" REQUIRED BY
29 C.F.R. § 5.5(a) (3) (ii) (B) .
4. THE FALSIFICATION OF ANY OF THE ABOVE
CERTIFICATIONS MAY SUBJECT THE CONTRACTOR OR SUBCONTRACTOR
TO CIVIL OR CRIMINAL PROSECUTION UNDER 18 U.S.C. § 1001 AND
31 U.S.C. § 231.
(c) THE CONTRACTOR OR SUBCONTRACTOR SHALL MAKE
THE RECORDS REQUIRED UNDER 29 C.F.R. § 5.5(a)(3)(i) AVAILABLE
FOR INSPECTION, COPYING, OR TRANSCRIPTION BY AUTHORIZED
REPRESENTATIVES OF 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.
FURTHERMORE, FAILURE TO SUBMIT THE REQUIRED RECORDS UPON REQUEST
OR MAKE SUCH RECORDS AVAILABLE MAY BE GROUNDS FOR DEBARMENT ACTION
PURSUANT TO 29 C.F.R. § 5.12.
(4) APPRENTICES AND TRAINEES (a) APPRENTICES
APPRENTICES WILL BE PERMITTED TO WORK AT LESS THAN THE
PREDETERMINED RATE FOR THE WORK THEY PERFORMED WHEN THEY ARE
EMPLOYED PURSUANT TO AND INDIVIDUALLY REGISTERED IN A BONA FIDE
APPRENTICESHIP PROGRAM REGISTERED WITH THE U.S. DEPARTMENT OF
LABOR, EMPLOYMENT AND TRAINING ADMINISTRATION, BUREAU OF
APPRENTICESHIP AND TRAINING, OR WITH A STATE APPRENTICESHIP AGENCY
RECOGNIZED BY THE BUREAU, OR IF A PERSON IS EMPLOYED IN HIS OR HER
FIRST 90 DAYS OF PROBATIONARY EMPLOYMENT AS AN APPRENTICE IN SUCH
AN APPRENTICESHIP PROGRAM, WHO IS NOT INDIVIDUALLY REGISTERED IN
THE PROGRAM, BUT WHO HAS BEEN CERTIFIED BY THE BUREAU OF
APPRENTICESHIP AND TRAINING OR A STATE APPRENTICESHIP AGENCY
(WHERE APPROPRIATE) TO BE ELIGIBLE FOR PROBATIONARY EMPLOYMENT AS
AN APPRENTICE. THE ALLOWABLE RATIO OF APPRENTICES TO JOURNEYMEN
ON THE JOB SITE IN ANY CRAFT CLASSIFICATION SHALL NOT BE GREATER
THAN THE RATIO PERMITTED TO THE CONTRACTOR AS TO THE ENTIRE WORK
FORCE UNDER THE REGISTERED PROGRAM. ANY WORKER LISTED ON A
PAYROLL AT AN APPRENTICE WAGE RATE, WHO IS NOT REGISTERED OR
OTHERWISE EMPLOYED AS STATED ABOVE, SHALL BE PAID NOT LESS THAN
THE APPLICABLE WAGE ON THE WAGE DETERMINATION FOR THE
Page 32
CLASSIFICATION OF WORK ACTUALLY PERFORMED. IN ADDITION, ANY
APPRENTICE PERFORMING WORK ON THE JOB SITE IN EXCESS OF THE RATIO
PERMITTED UNDER THE REGISTERED PROGRAM SHALL BE PAID NOT LESS THAN
THE APPLICABLE WAGE RATE ON THE WAGE DETERMINATION FOR THE WORK
ACTUALLY PERFORMED. WHERE A CONTRACTOR IS PERFORMING CONSTRUCTION
ON A PROJECT IN A LOCALITY OTHER THAN THAT IN WHICH ITS PROGRAM IS
REGISTERED, THE RATIOS AND WAGE RATES (EXPRESSED IN PERCENTAGES OF
THE JOURNEYMAN'S HOURLY RATE) SPECIFIED IN THE CONTRACTOR'S OR
SUBCONTRACTOR'S REGISTERED PROGRAM SHALL BE OBSERVED. EVERY
APPRENTICE MUST BE PAID AT NOT LESS THAN THE RATE SPECIFIED IN THE
REGISTERED PROGRAM FOR THE APPRENTICE'S LEVEL OF PROGRESS,
EXPRESSED AS A PERCENTAGE OF THE JOURNEYMAN HOURLY RATE SPECIFIED
IN THE APPLICABLE WAGE DETERMINATION. APPRENTICES SHALL BE PAID
FRINGE BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE
APPRENTICESHIP PROGRAM. IF THE APPRENTICESHIP PROGRAM DOES NOT
SPECIFY FRINGE BENEFITS, APPRENTICES MUST BE PAID THE FULL AMOUNT
OF FRINGE BENEFITS LISTED ON THE WAGE DETERMINATION FOR THE
APPLICABLE CLASSIFICATION. IF THE ADMINISTRATOR DETERMINES THAT A
DIFFERENT PRACTICE PREVAILS FOR THE APPLICABLE APPRENTICE
CLASSIFICATION, FRINGE BENEFITS SHALL BE PAID IN ACCORDANCE WITH
THAT DETERMINATION. IN THE EVENT THE BUREAU OF APPRENTICESHIP AND
TRAINING, OR A STATE APPRENTICESHIP AGENCY RECOGNIZED BY THE
BUREAU, WITHDRAWS APPROVAL OF AN APPRENTICESHIP PROGRAM, THE
CONTRACTOR WILL NO LONGER BE PERMITTED TO UTILIZE APPRENTICES AT
LESS THAN THE APPLICABLE PREDETERMINED RATE FOR THE WORK PERFORMED
UNTIL AN ACCEPTABLE PROGRAM IS APPROVED.
(b) TRAINEES EXCEPT AS PROVIDED IN 29 C.F.R. § 5.16,
TRAINEES WILL NOT BE PERMITTED TO WORK AT LESS THAN THE
PREDETERMINED RATE FOR THE WORK PERFORMED UNLESS THEY ARE EMPLOYED
PURSUANT TO AND INDIVIDUALLY REGISTERED IN A PROGRAM WHICH HAS
RECEIVED PRIOR APPROVAL, EVIDENCED BY FORMAL CERTIFICATION BY THE
U.S. DEPARTMENT OF LABOR, EMPLOYMENT AND TRAINING ADMINISTRATION.
THE RATIO OF TRAINEES TO JOURNEYMEN ON THE JOB SITE SHALL NOT BE
GREATER THAN PERMITTED UNDER THE PLAN APPROVED BY THE EMPLOYMENT
AND TRAINING ADMINISTRATION. EVERY TRAINEE MUST BE PAID AT NOT
LESS THAN THE RATE SPECIFIED IN THE APPROVED PROGRAM FOR THE
TRAINEE'S LEVEL OF PROGRESS, EXPRESSED AS A PERCENTAGE OF THE
JOURNEYMAN HOURLY RATE SPECIFIED IN THE APPLICABLE WAGE
DETERMINATION. TRAINEES SHALL BE PAID FRINGE BENEFITS IN
ACCORDANCE WITH THE PROVISIONS OF THE TRAINEE PROGRAM. IF THE
TRAINEE PROGRAM DOES NOT MENTION FRINGE BENEFITS, TRAINEES SHALL
BE PAID THE FULL AMOUNT OF FRINGE BENEFITS LISTED ON THE WAGE
DETERMINATION UNLESS THE ADMINISTRATOR OF THE WAGE AND HOUR
DIVISION DETERMINES THAT THERE IS AN APPRENTICESHIP PROGRAM
ASSOCIATED WITH THE CORRESPONDING JOURNEYMAN WAGE RATE ON THE 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
Page 33
DETERMINATION FOR THE CLASSIFICATION OF WORK ACTUALLY PERFORMED.
IN ADDITION, ANY TRAINEE PERFORMING WORK ON THE JOB SITE IN EXCESS
OF THE RATIO PERMITTED UNDER THE REGISTERED PROGRAM SHALL BE PAID
NOT LESS THAN THE APPLICABLE WAGE RATE ON THE WAGE DETERMINATION
FOR THE WORK ACTUALLY PERFORMED. IN THE EVENT THE EMPLOYMENT AND
TRAINING ADMINISTRATION WITHDRAWS APPROVAL OF A TRAINING PROGRAM,
THE CONTRACTOR WILL NO LONGER BE PERMITTED TO UTILIZE TRAINEES AT
LESS THAN THE APPLICABLE PREDETERMINED RATE FOR THE WORK PERFORMED
UNTIL AN ACCEPTABLE PROGRAM IS APPROVED.
(c) EQUAL EMPLOYMENT OPPORTUNITY THE UTILIZATION
OF APPRENTICES, TRAINEES, AND JOURNEYMEN UNDER 29 C.F.R. PART 5
SHALL BE IN CONFORMITY WITH THE EQUAL EMPLOYMENT OPPORTUNITY
REQUIREMENTS OF EXECUTIVE ORDER 11246, AS AMENDED, AND
29 C.F.R. PART 30.
(5) COMPLIANCE WITH COPELAND ACT REQUIREMENTS THE
CONTRACTOR SHALL COMPLY WITH THE REQUIREMENTS OF 29 C.F.R. PART 3,
WHICH ARE INCORPORATED HEREIN BY REFERENCE.
(6) CONTRACT TERMINATION: DEBARMENT. A BREACH OF THE
CONTRACT CLAUSES IN 29 C.F.R. § 5.5. MAY BE GROUNDS FOR
TERMINATION OF THE CONTRACT, AND FOR DEBARMENT AS A CONTRACTOR AND
A SUBCONTRACTOR AS PROVIDED IN 29 C.F.R. § 5.12.
(7) COMPLIANCE WITH DAVIS -BACON AND RELATED ACT
REQUIREMENTS ALL RULINGS AND INTERPRETATIONS OF THE DAVIS -BACON
AND RELATED ACTS CONTAINED IN 29 C.F.R. PARTS 1, 3, AND 5 ARE
INCORPORATED HEREIN BY REFERENCE.
(8) DISPUTES CONCERNING LABOR STANDARDS. DISPUTES ARISING
OUT OF THE LABOR STANDARDS PROVISIONS OF THIS CONTRACT SHALL NOT
BE SUBJECT TO THE GENERAL DISPUTES CLAUSE OF THIS CONTRACT. SUCH
DISPUTES SHALL BE RESOLVED IN ACCORDANCE WITH THE PROCEDURES OF
THE DEPARTMENT OF LABOR SET FORTH IN 29 C.F.R. PARTS 5, 6, AND 7.
DISPUTES WITHIN THE MEANING OF THIS CLAUSE INCLUDE DISPUTES
BETWEEN THE CONTRACTOR (OR ANY OF ITS SUBCONTRACTORS) AND THE
CONTRACTING AGENCY, THE U.S. DEPARTMENT OF LABOR, OR THE EMPLOYEES
OR THEIR REPRESENTATIVES.
(9) (a) CERTIFICATION OF ELIGIBILITY BY ENTERING INTO
THIS AGREEMENT OR A THIRD PARTY CONTRACT FINANCED UNDER THIS
AGREEMENT, THE CONTRACTOR CERTIFIES THAT NEITHER IT (NOR HE
NOR SHE) NOR ANY PERSON OR FIRM THAT HAS AN INTEREST IN THE
CONTRACTOR'S FIRM IS A PERSON OR FIRM INELIGIBLE TO BE AWARDED
GOVERNMENT CONTRACTS BY VIRTUE OF SECTION 3(a) OF THE DAVIS -BACON
ACTOR 29 C.F.R. § 5.12(a)(1).
(b) NO PART OF THIS CONTRACT SHALL BE SUBCONTRACTED
TO ANY PERSON OR FIRM INELIGIBLE FOR AWARD OF A GOVERNMENT
CONTRACT BY VIRTUE OF SECTION 3(a) OF THE DAVIS -BACON ACT OR
29 C.F.R. § 5.12(a)(1).
Page 34
(c) THE PENALTY FOR MAKING FALSE STATEMENTS IS
PRESCRIBED IN THE U.S. CRIMINAL CODE, 18 U.S.C. § 1001.
(10) OVERTIME REQUIREMENTS NO CONTRACTOR OR SUBCONTRACTOR
CONTRACTING FOR ANY PART OF THE CONTRACT WORK WHICH MAY REQUIRE
OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS SHALL REQUIRE
OR PERMIT ANY SUCH LABORER OR MECHANIC IN ANY WORK WEEK IN WHICH
HE OR SHE IS EMPLOYED ON SUCH WORK TO WORK IN EXCESS OF FORTY
HOURS IN SUCH WORK WEEK UNLESS SUCH LABORER OR MECHANIC RECEIVES
COMPENSATION AT A RATE NOT LESS THAN ONE AND ONE -HALF TIMES THE
BASIC RATE OF PAY FOR ALL HOURS WORKED IN EXCESS OF FORTY HOURS
IN SUCH WORK WEEK.
(11) VIOLATION; LIABILITY FOR UNPAID WAGES; LIQUIDATED
DAMAGES IN THE EVENT OF ANY VIOLATION OF THE REQUIREMENTS OF
29 C.F.R. § 5.5(b)(1), THE CONTRACTOR AND ANY SUBCONTRACTOR
RESPONSIBLE THEREFOR SHALL BE LIABLE FOR THE UNPAID WAGES.
IN ADDITION, SUCH CONTRACTOR AND SUBCONTRACTOR SHALL BE LIABLE
TO THE UNITED STATES (IN THE CASE OF WORK DONE UNDER CONTRACT
FOR THE DISTRICT OF COLUMBIA OR A TERRITORY, TO SUCH DISTRICT
OR TO SUCH TERRITORY) FOR LIQUIDATED DAMAGES. SUCH LIQUIDATED
DAMAGES SHALL BE COMPUTED WITH RESPECT TO EACH INDIVIDUAL
LABORER OR MECHANIC, INCLUDING WATCHMEN AND GUARDS, EMPLOYED
IN VIOLATION OF 29 C.F.R. § 5.5(b)(1) IN THE SUM OF $10 FOR
EACH CALENDAR DAY ON WHICH SUCH INDIVIDUAL WAS REQUIRED OR
PERMITTED TO WORK IN EXCESS OF THE STANDARD WORK WEEK OF
FORTY HOURS WITHOUT PAYMENT OF THE OVERTIME WAGES REQUIRED BY
29 C.F.R. § 5.5(b)(1).
(12) WITHHOLDING FOR UNPAID WAGES AND LIQUIDATED DAMAGES
UMTA OR THE RECIPIENT SHALL UPON ITS OWN ACTION OR UPON WRITTEN
REQUEST OF AN AUTHORIZED REPRESENTATIVE OF THE DEPARTMENT OF
LABOR WITHHOLD OR CAUSE TO BE WITHHELD, FROM ANY MONEYS PAYABLE
ON ACCOUNT OF WORK PERFORMED BY THE CONTRACTOR OR SUBCONTRACTOR
UNDER ANY SUCH CONTRACT OR ANY OTHER FEDERAL CONTRACT WITH
THE SAME PRIME CONTRACTOR, OR ANY OTHER FEDERALLY- ASSISTED
CONTRACT SUBJECT TO THE CONTRACT WORK HOURS AND SAFETY STANDARDS
ACT, WHICH IS HELD BY THE SAME PRIME CONTRACTOR, SUCH SUMS
AS MAY BE DETERMINED TO BE NECESSARY TO SATISFY ANY LIABILITIES
OF SUCH CONTRACTOR OR SUBCONTRACTOR FOR UNPAID WAGES AND
LIQUIDATED DAMAGES AS PROVIDED IN THE CLAUSE SET FORTH AT
29 C.F.R. § 5.5(b)(2).
(13) SUBCONTRACTS THE CONTRACTOR OR SUBCONTRACTOR
SHALL INSERT IN ANY SUBCONTRACTS THE CLAUSES SET FORTH IN
SUBSECTIONS 116.a.(1) THROUGH (12) OF PART II OF THIS AGREEMENT
AND ALSO A CLAUSE REQUIRING THE SUBCONTRACTORS TO INCLUDE THESE
CLAUSES IN ANY LOWER TIER SUBCONTRACTS. THE PRIME CONTRACTOR
SHALL BE RESPONSIBLE FOR COMPLIANCE BY ANY SUBCONTRACTOR
OR LOWER TIER SUBCONTRACTOR WITH THE CLAUSES SET FORTH IN
SUBSECTIONS 116.a.(1) THROUGH 116.a.(12) OF PART II OF THIS
AGREEMENT.
Page 35
b. Nonconstruction Contracts Pursuant to the regulations set
forth at 29 C.F.R. Part 5, the following provisions shall be
incorporated in all federally- assisted non - construction contracts
of $2,500 let by the Recipient in carrying out the Project:
NONCONSTRUCTION CONTRACTS THE REQUIREMENTS OF THE CLAUSES
CONTAINED IN 29 C.F.R. § 5.5(b) OR SUBSECTIONS 116.a.(10)
THROUGH 116.a.(13) OF PART II OF THIS AGREEMENT ARE APPLICABLE TO
ANY CONTRACT SUBJECT TO THE OVERTIME PROVISIONS OF THE CONTRACT
WORK HOURS AND SAFETY STANDARDS ACT AND NOT TO ANY OF THE OTHER
STATUTES CITED IN 29 C.F.R. § 5.1. THE CONTRACTOR OR
SUBCONTRACTOR SHALL MAINTAIN PAYROLLS AND BASIC PAYROLL RECORDS
DURING THE COURSE OF THE WORK AND SHALL PRESERVE THEM FOR A PERIOD
OF THREE YEARS FROM THE COMPLETION OF THE CONTRACT FOR ALL
LABORERS AND MECHANICS, INCLUDING GUARDS AND WATCHMEN, WORKING ON
THE CONTRACT. SUCH RECORDS SHALL CONTAIN THE NAME AND ADDRESS OF
EACH SUCH EMPLOYEE, SOCIAL SECURITY NUMBER, CORRECT
CLASSIFICATIONS, HOURLY RATES OF WAGES PAID, DAILY AND WEEKLY
NUMBER OF HOURS WORKED, DEDUCTIONS MADE, AND ACTUAL WAGES PAID.
THE RECORDS TO BE MAINTAINED UNDER THIS CLAUSE SHALL BE MADE
AVAILABLE BY THE CONTRACTOR OR SUBCONTRACTOR 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.
C. State and Local Government Employees The provisions of
the Fair Labor Standards Act, as amended by Pub. L. 99 -150,
Nov. 13, 1985, or as may be amended further, are applicable to
State and local government employees that participate in the
UMTA assisted Project with the Recipient.
Section 117. Environmental, Resource, Energy Protection and
Conservation Requirements
a. Environmental Policy The National Environmental Policy Act
of 1969, as amended, 42 U.S.C. §§ 4321 et sea. 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 sea. and the
FHWA /UMTA regulation, "Environmental Impact and Related
Procedures," 23 C.F.R. Part 771, as amended, are applicable
to the Project.
b. Compliance with Environmental Standards The Recipient
shall comply with the provisions of the Clean Air Act, as amended,
42 U.S.C. §§ 1857 et sea. the Federal Water Pollution Control
Act, as amended, 33 U.S.C. §§ 1251 et seq. and implementing
regulations, in the facilities that are involved in the Project
for which Federal assistance is given. The Recipient shall ensure
that the facilities under ownership, lease or supervision, whether
directly or under contract, that will be utilized in the
Page 36
accomplishment of the Project are not listed on the Environmental
Protection Agency (EPA) List of Violating Facilities. Contracts,
subcontracts, and subgrants of amounts in excess of $100,000 shall
contain a provision requiring compliance with all applicable
standards, orders, or requirements issued pursuant to Federal
statute or regulation. The Recipient and any third party
contractor thereof shall be responsible for reporting any
violations to UMTA and to the EPA Assistant Administrator for
Enforcement. In addition, the Recipient shall notify 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.
c. Air Pollution No facilities or equipment shall be acquired,
constructed, or improved as a part of the Project unless the
Recipient 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.
d. Use of Public Lands No publicly owned land from a park,
recreation area, or wildlife or waterfowl refuge of national,
State, or local significance as determined by the Federal, State,
or local officials having jurisdiction thereof, or any land from
an historic site of national, State, or local significance may be
used for the Project unless specific findings required under
49 U.S.C. § 303 are made by the Department of Transportation.
e. Historic Preservation The Recipient 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.
Page 37
f. Energy Conservatio The Recipient and its third party
contractors shall comply with mandatory standards and policies
relating to energy efficiency that are contained in applicable
State energy conservation plans issued in compliance with the
Energy Policy and Conservation Act, 42 U.S.C. §§ 6321 et sea.
g. Mitigation of Adverse Environmental Effects Should the
proposed Project cause adverse environmental effects, the
Recipient 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 Recipient
shall undertake all environmental mitigation measures that may be
identified as commitments in 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 and the Recipient, those mitigation
methods subsequently determined will be incorporated into this
Agreement. Such mitigation measures may not be modified or
withdrawn without the express written approval of the Government.
h. Use of Fly Ash in Cement and Concrete In carrying out the
Project, the Recipient 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
Recipient make a determination that the use of fly ash is
inappropriate in a particular procurement of cement or concrete,
the Recipient shall provide UMTA a written justification to
support that decision.
Section 118. Patent Rights
a. If any invention, improvement, or discovery of the Recipient
or any of its third party contractors is conceived or first
actually reduced to practice in the course of or under this
Project, which invention, improvement, or discovery may be
patentable under the laws of the United States of America or any
foreign country, the Recipient shall immediately notify the
Government (UMTA) and provide a detailed report. The rights and
responsibilities of the Recipient, third party contractors and the
Government with respect to such invention, improvement, or
discovery will be determined in accordance with applicable Federal
laws, regulations, policies, and any waiver thereof.
b. The requirements of Subsection 118.a. of Part II of this
Agreement shall be included in all third party contracts of the
Recipient under this Project.
Page 38
Section 119. Riqhts 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 Recipient may not
publish or reproduce such data in whole or in part, or in any
manner or form, nor may the Recipient authorize others to do so,
without the written consent of the Government, until such time as
the Government may have either released or approved the release of
such data to the public; this restriction on publication, however,
does not apply to Agreements with academic institutions.
(2) As authorized by 49 C.F.R. Part 18.34, the Government
(UMTA) reserves a royalty -free, non - exclusive and irrevocable
license to reproduce, publish or otherwise use, and to authorize
others to use, for Federal Government purposes:
(a) Any work developed under a grant, cooperative
agreement, sub - grant, sub - agreement, or third party contract,
irrespective of whether or not a copyright has been obtained; and
(b) Any rights of copyright to which a Recipient,
sub - recipient, or a third party contractor purchases ownership
with Federal assistance.
c. When UMTA provides assistance to a Recipient for a Project
involving planning, research, development, or a demonstration,
it is UMTA's intent to increase the body of mass transportation
knowledge, rather than to limit the benefits of the Project to
those parties that have participated therein. Therefore, the
Recipient of UMTA assistance to support planning, research,
development, or a demonstration financed under section 4(i), 6, 8,
9, 18, 18(h), or 20 of the Urban Mass Transportation Act of 1964
as amended, 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,
Page 39
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 Recipient 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 Recipient of proprietary rights, copyrights, or
right of privacy, arising out of the publication, translation,
reproduction, delivery, use, or disposition of any data furnished
under this Agreement.
e. Nothing contained in this clause shall imply a license to the
Government under any patent or be construed as affecting the scope
of any license or other right otherwise granted to the Government
under any patent.
f. Subsections 119.b., 119.c. and 119.d. of Part II of this
Agreement are not applicable to material furnished to the
Recipient by the Government and incorporated in the work furnished
under the Agreement; provided that such incorporated material is
identified by the Recipient 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 this Agreement and shall be
delivered as the Government may direct.
h. The requirements of Subsections 119.a. through 119.g. of
Part II of this Agreement shall be included in all third party
contracts of the Recipient under this Project.
Section 120. Cargo Preference -Use of United States -Flag Vessels
a. 46 U.S.C. § 1241 app. provides in pertinent part as follows:
(b)(1) Whenever the United States shall procure,
contract for, or otherwise obtain for its own account,
or shall furnish to or for the account of any foreign
nation without provision for reimbursement, any equipment,
materials, or commodities, within or without the
United States, or shall advance funds or credits or
guarantee the convertibility of foreign currencies in
connection with the furnishing of such equipment,
materials, or commodities, the appropriate agency or
agencies shall take such steps as may be necessary and
practicable to assure that at least 50 per centum of
the gross tonnage of such equipment, materials, or
Page 40
commodities (computed separately for dry bulk carriers,
dry cargo liners, and tankers), which may be transported
on privately owned United States -flag commercial vessels,
to the extent such vessels are available at fair and
reasonable rates for United States -flag commercial
vessels, in such manner as will insure a fair and
reasonable participation of United States -flag commercial
vessels in such cargoes by geographic areas:....
(2) Every department or agency having responsibility
under this subsection shall administer its programs
with respect to this subsection under regulations issued
by the Secretary of Transportation.
b. Therefore, pursuant to Maritime Administration regulations,
"Cargo Preference -- U.S. -Flag Vessels," 46 C.F.R. Part 381, the
Recipient shall insert the following clauses in contracts let by
the Recipient in which equipment, materials or commodities may be
transported by ocean vessel in carrying out the Project:
THE CONTRACTOR AGREES --
(1) TO UTILIZE PRIVATELY OWNED UNITED STATES -FLAG COMMERCIAL
VESSELS TO SHIP AT LEAST 50 PERCENT OF THE GROSS TONNAGE (COMPUTED
SEPARATELY FOR DRY BULK CARRIERS, DRY CARGO LINERS, AND TANKERS)
INVOLVED, WHENEVER SHIPPING ANY EQUIPMENT, MATERIALS, OR
COMMODITIES PURSUANT TO 46 C.F.R. PART 381 TO THE EXTENT SUCH
VESSELS ARE AVAILABLE AT FAIR AND REASONABLE RATES FOR UNITED
STATES -FLAG COMMERCIAL VESSELS.
(2) TO FURNISH WITHIN 30 DAYS FOLLOWING THE DATE OF
LOADING FOR SHIPMENTS ORIGINATING WITHIN THE UNITED STATES, OR
WITHIN 30 WORKING DAYS FOLLOWING THE DATE OF LOADING FOR SHIPMENT
ORIGINATING OUTSIDE THE UNITED STATES, A LEGIBLE COPY OF A RATED,
"ON- BOARD" COMMERCIAL OCEAN BILL -OF- LADING IN ENGLISH FOR EACH
SHIPMENT OF CARGO DESCRIBED IN PARAGRAPH (1) ABOVE TO THE
RECIPIENT (THROUGH THE PRIME CONTRACTOR IN THE CASE OF
SUBCONTRACTOR BILLS -OF- LADING) AND TO THE DIVISION OF NATIONAL
CARGO, OFFICE OF MARKET DEVELOPMENT, MARITIME ADMINISTRATION,
400 SEVENTH STREET, S.W., WASHINGTON, D.C. 20590, MARKED WITH
APPROPRIATE IDENTIFICATION OF THE PROJECT.
(3) TO INSERT THE SUBSTANCE OF THE PROVISIONS OF THIS CLAUSE
IN ALL SUBCONTRACTS ISSUED PURSUANT TO THIS CONTRACT.
Section 121. Buy America
Each third party contract utilizing UMTA assistance must comply
with section 165 of the Surface Transportation Assistance Act of
1982, as amended by section 337 of the Surface Transportation and
Uniform Relocation Assistance Act of 1987, and UMTA regulations at
49 C.F.R. Part 661 and any guidance issued by UMTA.
Page 41
Section 122. Charter Service Operations
Neither the Recipient nor any operator of mass transportation that
acts on behalf of a Recipient may engage in charter service
operations except as provided under section 3(f) of the Urban Mass
Transportation Act of 1964, as amended, 49 U.S.C. app. § 1602(f),
and UMTA regulations "Charter Service," 49 C..F.R. Part 604. Any
charter service agreement entered into under these regulations is
incorporated into this Agreement by reference.
Section 123. School Bus Operations
Neither the Recipient nor any operator of mass transportation that
acts on behalf of a Recipient may engage in school bus operations
exclusively for the transportation of students or school personnel
in competition with private school bus operators, except as
provided under section 3(g) of the Urban Mass Transportation
Act of 1964, as amended, 49 U.S.C. app. § 1602(g), and UMTA
regulations "School Bus Operations," 49 C.F.R. Part 605, and any
amendments thereto that may be issued. Any school bus agreement
entered into under these regulations is incorporated into this
Agreement by reference.
Section 124. Private Enterprise
The private enterprise provisions of sections 3(e), 8(c), and
9(f) of the Urban Mass Transportation Act of 1964, as amended,
49 U.S.C. app. §§ 1602(e), 1607(c), and 1607a(f), and implementing
guidance set forth in "Documentation of Private Enterprise
Participation Required for Sections 3 and 9 Programs," UMTA
Circular 7005.1, December 5, 1986, and any further revisions
thereto, and any other DOT or UMTA guidance that may be issued are
applicable to Projects financed under sections 3 and 9 of the
Urban Mass Transportation Act of 1964, as amended, and
sections 103(e)(4) and 142 of title 23, United States Code.
Section 125. Privacy
Should the Recipient, 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.
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 Recipient 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,
Page 42
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 or Section 125 of Part II of this Agreement
will make this Agreement subject to termination.
b. As used in Section 125 of Part II of this Agreement:
(1) "Operation of a system of records" means performance of
any of the activities associated with maintaining the system of
records on behalf of the Government including the collection, use
and dissemination of records.
(2) "Record" means any item, collection, or grouping of
information about an individual that is maintained by the
Recipient on behalf of the Government including, but not limited
to, his or her education, financial transactions, medical history,
and criminal or employment history and that contains his or her
name, or the identifying number, symbol, or other identifying
particular assigned to the individual, such as a finger or voice
print or a photograph.
(3) "System of records" on individuals means a group of any
records under the control of the Recipient on behalf of the
Government from which information is retrieved by the name of the
individual or by some identifying number, symbol or other
identifying particular assigned to the individual.
C. The Recipient agrees:
(1) To comply with the Privacy Act of 1974, 5 U.S.C. § 552a
and regulations thereunder, when performance under the Project
involves the design, development, or operation of any system of
records on individuals to be operated by the Recipient, its
third party contractors, sub - grantees, sub - recipients, or their
employees to accomplish a Government function;
(2) To notify the Government when the Recipient or any of
its third party contractors, sub - grantees, sub - recipients, or
their employees anticipates operating a system of records on
behalf of the Government in order to implement the Project, if
such system contains information about individuals retrievable
by the individual's name or other identifier assigned to the
individual. A system of records subject to the Act may not be
used in the performance of this Agreement until the necessary
and applicable approval and publication requirements have been
met. The Recipient, its third party contractors, sub - grantees,
sub - recipients, and their employees agree to correct, maintain,
disseminate, and use such records in accordance with the terms
of the Act, and to comply with all applicable terms of the Act;
(3) To include in every solicitation and in every third party
contract, sub - grant, and sub - agreement when the performance of
work under that proposed third party contract, sub - grant, or
Page 43
sub - agreement may involve the design, development, or operation of
a system of records on individuals to be operated under that third
party contract, sub - grant, or sub - agreement to accomplish a
Government function, a Privacy Act notification informing the
third party contractor, sub - grantee, or sub - recipient that it will
be required to design, develop, or operate a system of records on
individuals to accomplish a Government function subject to the
Privacy Act of 1974, 5 U.S.C. § 552a, and Federal agency
regulations, and that a violation of the Act may involve the
imposition of criminal penalties; and
(4) To include the text of Subsections 125.c.(1) through
125.c.(4) of Part II of this Agreement, 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.
Section 126. Hatch Act
The terms of 5 U.S.C. §§ 1501 through 1508 (the "Hatch Act "), and
Office of Personnel Management regulations, "Political Activity of
State or Local Officers or Employees," 5 C.F.R. Part 151, apply to
State and local agencies and their officers and employees to the
extent covered by the statute and regulations. The "Hatch Act"
restricts the political activity of an individual principally
employed by a State or local executive agency in connection with a
program financed in whole or in part by a Federal loan, grant, or
cooperative agreement. However, the "Hatch Act" does not apply to
a nonsupervisory employee of an urban mass transportation system
(or of any other agency or entity performing related functions) to
whom the "Hatch Act" is otherwise inapplicable.
Section 127. Prohibition of Drugs
The Recipient agrees to comply with the following regulations:
UMTA regulations, "Control of Drug Use in Mass Transportation
Operations," 49 C.F.R. Part 653; Department of Transportation
regulations, "Drug -Free Workplace Requirements (Grants),"
49 C.F.R. Part 29, Subpart F; and Department of Transportation
regulations, "Procedures for Transportation Workplace Drug Testing
Programs," 49 C.F.R. Part 40.
Section 128. Debarment and Suspension
The Recipient shall obtain from its third party contractors,
sub - grantees, and sub - recipients certifications required by
Department of Transportation regulations, "Governmentwide
Debarment and Suspension (Nonprocurement)," 49 C.F.R. Part 29,
and otherwise comply with the requirements of those regulations.
Page 44
Sections 129. False or Fraudulent Statements or Claims
The Recipient acknowledges that if it makes a false, fictitious,
or fraudulent claim, statement, submission, or certification to
the Government in connection with this Project, the Government
reserves the right to pursue the procedures and impose on the
Recipient the penalties of 18 U.S.C. § 1001, 31 U.S.C. §§ 231
and 3801 et sea. and /or 49 U.S.C. app. § 1607(h), as may be
deemed by the Government to be appropriate. The terms of
Department of Transportation regulations, "Program Fraud Civil
Remedies," 49 C.F.R. Part 31, are applicable to this Project.
Section 130. Miscellaneous.
a. Bonus or Commission The Recipient 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 Recipient to
observe or enforce compliance with any provision thereof, perform
any other act, or do any other thing in contravention of any
applicable State or territorial law; however, if any of the
provisions of the Agreement violate any applicable State or
territorial law, or if compliance with the provisions of the
Agreement would require the Recipient to violate any applicable
State territorial law, the Recipient shall at once notify the
Government (UMTA) in writing in order that appropriate
arrangements may be made by the Government and the Recipient to
the end that the Recipient may proceed as soon as possible with
the Project.
C. Records The Recipient and any mass transportation operator
for which it applies will, for each local fiscal year ending on or
after July 1, 1978, conform to the reporting system and the
uniform system of accounts and records to the extent required by
section 15 of the Urban Mass Transportation Act of 1964, as
amended, 49 U.S.C. app. § 1611, effective for each local fiscal
year ending on or after July 1, 1978, and applicable regulations
"Uniform System of Accounts and Records and Reporting System,"
set forth at 49 C.F.R. Part 630.
d. Severability If any provision of this Agreement is held
invalid, the remainder of this Agreement shall not be affected
thereby if such remainder would then continue to conform to the
terms and requirements of applicable law.
nu.S. Government Printing Office: 1989 - 241 - 686/07043
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