The URL can be used to link to this page

Home My WebLink About05701ORDINANCE NO. 5701 AN ORDINANCE APPROVING A CONTRACT, PROJECT NO. CO- 90- XO57 -01, BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND THE UNITED STATES OF AMERICA, AND AUTHORIZING THE PRESIDENT OF 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- XO57 -01, covering an Urban Mass Transportation Grant under Section 9 of the Urban Mass Transportation Act of 1964, as amended, to assist in meeting adjusted eligible net operating deficits incurred by the Pueblo Transportation Company during calendar year 1990, 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 City 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: August 12 , 1991 B y FAY KASTELIC Councilman APPROVED: Preside of City Council MIMI UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION URBAN MASS TRANSPORTATION AIP'ITNISTRATION NOTIFICATION OF GRANT AbVT APPROVAL (SECTIONS 9 and 9B OF THE URBAN MASS TRANSPORTATION ACT OF 1964, AS AMENDED) PROGRAM NO.: 00-90- X057 -01 The parties hereto agree that the Urban Mass Transportation Grant Agreement for the Program identified above, entered into on December 31, 1990, is amended as set forth below. PURPOSE OF THIS AMENDMENT To revise the current standard terms and conditions and supporting the total eligible net transit January 1, 1990 through December 31, 1990 GRANTEE City of Pueblo, CO DESIGNATED RECIPIENT City of Pueblo, CO existing Grant Agreement to include the to increase funds for the purpose of operating expenses for the period (supplement to 00-90- X051 -00). ESTIMATED TOTAL PROGRAM COST AFTER THIS AMENDMENT Two Million, Two Hundred Seventy -Five Thousand, Seven Hundred Fifty -Eight Dolars ($2,275,758) MAXIMUM FEDERAL GRANT AMOUNT AFTER THIS A4ENDMEIVT One Million, Three Hundred Thirty Thousand, One Hundred Twenty Dollars ($1,330,120) IDENTIFICATION OF SOURC OF FEDERAL FINANCIAL ASSISTANCE: DATE OF SECTION 13(c) CERTIFICATION Original: December 31, 1990 Amendment No. 1: July 2, 1991 PROGRAM DESCRIPTION Budget) OBLIGATION DATE (See attached Approved Amended Program of Projects and 1 NAL MANAGER ti Previously Amount New Approved of this Total Accounting Classification Code Amount Amendment Amount 88.21.90.91.1.04 Operating $ 700,563 -0- $ 700,563 88.21.90.91.1.00 Capital (80/20) 30,090 -0- 30,090 88.37.90.95.2.00 Capital (80/20) 28,470 -0- 28,470 89.37.90.95.2.00 Capital (80/20) 30,543 -0- 30,543 89.21.90.91.1.04 Operating 49,978 $ 66,935 116,913 89.21.90.91.1.00 Capital (80/20) 390,897 -0- 390,897 89.21.90.91.1.02 Planning (80/20) 32,644 -0- 32,644 Total $1,263,185 $ 66,935 $1,330,120 DATE OF SECTION 13(c) CERTIFICATION Original: December 31, 1990 Amendment No. 1: July 2, 1991 PROGRAM DESCRIPTION Budget) OBLIGATION DATE (See attached Approved Amended Program of Projects and 1 NAL MANAGER ti U.S. Department REGION VIII of Transportation Arizona, Colorado, Montana New Nevada, North Dakota, Urban Mass South Dakota, Utah, Wyoming Transportation Total Administration Amount Federal Office Building 1961 Stout Street Room 520 Denver, Colorado 80294 Grantee: City of Pueblo, CO Program No.: 00-90- X057 -01 Budget No.: 02 Date: July 2, 1911 Proiect Description I. Capital assistance - 80/20: Purchase new accessible replacement buses and related equipment II. Operating assistance: Federal Total Amount Amount $ 480,000 $ 600,000 A. Eligible net transit operating expenses for $ 817,476 $1,634,953 the period 1/1/91 through 12/31/91 B. Amendment to eligible net transit operating expenses for the period 1/1/90 through 12/31/90 (supplement to 00-90- X051 -00) III. Planning assistance - 80/20: Support of Pueblo UZA FY1991 Unified Planning $ 32,644 $ 40,805 Work Program IV. Total Assistance: $1,330,120 $2,275,758 IDENTIFICATION OF SOURCES OF FEDERAL FINANCIAL ASSISTANCE Previously Amount New Approved of this Total Accounting Classification Code Amount Amendment Amount 88.21.90.91.1.04 Operating $ 700,563 -0- $ 700,563 88.21.90.91.1.00 Capital (80/20) 30,090 -0- 30,090 88.37.90.95.2.00 Capital (80/20) 28,470 -0- 28,470 89.37.90.95.2.00 Capital (80/20) 30,543 -0- 30,543 89.21.90.91.1.04 Operating 49,978 $ 66,935 116,913 89.21.90.91.1.00 Capital (80/20) 390,897 -0- 390,897 89.21.90.91.1.02 Planning (80/20) 32,644 -0- 32,644 Total $1,263,185 $ 66,935 $1,330,120 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 seq. AND/OR TITLE 23, UNITED STATES CODE rgivllvdw 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 Projects 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'ects 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 Major Capital Protects 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 - In accordance with Section 622 of the Treasury, Postal Service and General Government Appropriations Act of 1991, with respect to any procurement for goods or services (including construction services) having an aggregate value of $500,000 or more, the Recipient agrees to: (1) specify in any announcement of the awarding of the contract for such goods or services the amount of Federal funds that will be used to finance the acquisition; and (2) express the said amount as a percentage of the total costs of the planned acquisition. 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 o 0 day ATTEST: 4 4k./ , dA J BY: C ITy Ck e 4 K l j�R.F s( Dr NT 4' F T tt� �O Gl I✓C �G TITLE AND ORGANIZATION TITLE AND ORGANIZATION Page 5 CERTIFICATION OF GRANTEE'S ATTORNEY I. ll 4S F :UAG6f R acting as Attornev for the Grantee do hereby certify that I have examined this Grant and have asce tained that execution of the Grant was authorized on the date of UGu T — T `�1 A copy of this authorization is attached or 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. Dated this A(T day of %q r , 19 AMW SIGNATURE TITLE AND ORGANIZA ION Page 6 UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION URBAN MASS TRANSPORTATION ADMINISTRATION WASHINGTON, D.C. 20590 t 1*04% 47v 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. Section 102. Section 103. Section 104. Section 105. Section 106. Section 107. Section 108. Section 109. Section 110. Section 111. Section 112. Section 113. Section 114. Definitions ......... ..............................1 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 Project or Program Budget .........................4 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 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 .......................9 Right of the Government to Terminate ..............9 Project Completion, Audit, Settlement, and Close- Out ............... ......................10 Project Real Property, Equipment, and supplies ... 10 Encumbrance of Project Property ..................12 Relocation and Land Acquisition ..................12 Flood Hazards ....... .............................12 BusTesting .................. ...................12 Preaward and Postdelivery Audit .............. ...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 .......... ............................2 - 7 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 ...... .............................39 Section 120. Cargo Preference - Use of United States -Flag Vessels ........... .............................40 Section 121. Buy America ......... .............................41 Section 122. Charter Service Operations .......................42 Section 123. School Bus Operations ............................42 Section 124. Private Enterprise .. .............................42 Section 125. Privacy ............. .............................42 Section 126. Hatch Act ........... .............................44 Section 127. Prohibition of Drugs . ...........................44 Section 128. Debarment and Suspension ........... .............44 Section 129. False or Fraudulent Statements or Claims .... . .... 45 Section 130. Miscellaneous ....... .............................45 a. Bonus or Commission ........................45 b. State or Territorial Law ...................45 c. Records ....... .............................45 d. Severability .. .............................45 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 sect. and /or title 23, U.S.C. (Highways). Section 101. Definitions As used in this Agreement: a. Agreement means any Grnt 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," a-- the context may require, to effectuate the particular requiremei,ts 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 he U.S. Department of Transportation. Section 102. Accomplishment of the Protect 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 event 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 sill-contractors or any other person not a party to this Agreement in connection with the performance of this Project. Section 103. Project 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 Reco rds. 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 �. 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 Project 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 ^roperly 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 Inspec tion. 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. Request 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) Requisit 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 fist -al 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 nct 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 Completio Audit SettleMEint, 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 - "he 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 wit.ldrawal 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 Protect 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, of 1964, as amended, 49 U.S.C. app. § 1608(j). Page 12 Section 114. Civil Rights, Procurement, Settlement,_ and Et hics 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 t-o 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; PROVIDED HOWEVER THAT IF A CONTRACTOR BECOMES INVOLVED IN, OR IS THREATENED WITH, LITIGATION WITH A SUBCONTRACTOR OR VENDOR AS A RESULT OF SUCH DIRECTION, THE CONTRACTOR MAY REQUEST THE UNITED STATES TO ENTER INTO SUCH LITIGATION TO PROTECT THE INTERESTS OF THE UNITED STATES. 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 DIRECT('R 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 1977 AND THE COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM). C. Notice The Recipient hereby agrees that it will ensure that the notice set forth below shall be included in, and shall be a part of, all solicitations for offers and bids on all 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 GOALS FOR FEMALE PARTICIPATION IN PARTICIPATION IN EACH TRADE EACH TRADE INSERT GOALS FOR INSERT GOALS FOR EACH YEAR EACH YEAR (b) THESE GOALS ARE APPLICABLE TO ALL THE CONTRACTOR'S CONSTRUCTION WORK (WHETHER OR NOT IT IS FEDERAL OR FEDERALLY ASSISTED) PERFORMED IN THE COVERED AREA. IF THE CONTRACTOR 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 14UST 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 1(b)(2) OF THE DAVIS -BACON ACT ON BEHALF OF LABORERS OR MECHANICS ARE CONSIDERED WAGES PAID TO SUCH LABORERS OR MECHANICS, SUBJECT TO THE PROVISIONS OF 29 C.F.R. § 5.5(a)(1)(iv); ALSO, REGULAR CONTRIBUTIONS MADE OR COSTS INCURRED FOR MORE THAN A WEEKLY PERIOD (BUT NOT LESS OFTEN THAN QUARTERLY) UNDER PLANS, FUNDS, OR PROGRAMS THAT COVER THE PARTICULAR WEEKLY PERIOD, ARE DEEMED TO BE CONSTRUCTIVELY MADE OR INCURRED DURING SUCH WEEKLY PERIOD. SUCH LABORERS AND MECHANICS SHALL BE PAID THE APPROPRIATE WAGE RATE AND FRINGE BENEFITS ON THE WAGE DETERMINATION FOR THE CLASSIFICATION OF WORK ACTUALLY PERFORMED, WITHOUT REGARD TO SKILL, EXCEPT AS PROVIDED AT 29 C.F.R. § 5.5(a)(4), LABORERS OR MECHANICS PERFORMING WORK IN MORE THAN ONE CLASSIFICATION MAY BE COMPENSATED AT THE RATE SPECIFIED FOR EACH CLASSIFICATION FOR THE TIME ACTUALLY WORKED THEREIN: PROVIDED, THAT THE EMPLOYER'S PAYROLL RECORDS ACCURATELY SET FORTH THE TIME SPENT IN EACH CLASSIFICATION IN WHICH WORK IS PERFORMED. THE WAGE DETERMINATION (INCLUDING ANY ADDITIONAL CLASSIFICATION AND WAGE RATES CONFORMED UNDER 29 C.F.R. § 5.5(a)(1)(ii) AND THE DAVIS -BACON POSTER (WH -1321) SHALL BE POSTED AT ALL TIMES BY THE CONTRACTOR AND ITS SUBCONTRACTORS AT THE SITE OF THE WORK IN A PROMINENT AND ACCESSIBLE PLACE WHERE IT CAN BE EASILY SEEN BY THE WORKERS. 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 CONTAINZD 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. JER 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. §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a) CERTIFICATION OF ELIGIBILITY BY ENTERING INTO THIS AGREEMENT OR A THIRD PARTY CONTRACT FINANCED UNDER THIS AGREEMENT, THE CONTRACTOR CERTIFIES THAT NEITHER IT (NOR HE NOR SHE) NOR ANY PERSON OR FIRM THAT HAS AN INTEREST IN THE CONTRACTOR'S FIRM IS A PERSON OR FIRM INELIGIBLE TO BE AWARDED GOVERNMENT CONTRACTS BY VIRTUE OF SECTION 3(a) OF THE DAVIS -BACON ACT OR 29 C.F.R. § 5.12(a)(1). (b) NO PART OF THIS CONTRACT SHALL BE SUBCONTRACTED TO ANY PERSON OR FIRM INELIGIBLE FOR AWARD OF A GOVERNMENT CONTRACT BY VIRTUE OF SECTION 3(a) OF THE DAVIS -BACON ACT OR 29 C.F.R. § 5.12(a)(1). 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 sect. Section 14 of the Urban Mass Transportation Act of 1964, as amended, 49 U.S.C. app. §§ 1601 et sea. 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 sea. 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 follokng 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 Conservation The Recipient and its third party contractors shall comply with mandatory standards and policies relating to energy efficiency that are contained in applicable State energy conservation plans issued in compliance with the Energy Policy and Conservation Act, 42 U.S.C. §§ 6321 et 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. Rights in Data. a. The term "subject data" as used herein means recorded information, whether or not copyrighted, that is delivered or specified to be delivered under this Agreement. The term includes graphic or pictorial delineations in media such as drawings or photographs; text in specifications or related performance or design -type documents; machine forms such as punched cards, magnetic tape, or computer memory printouts; and information retained in computer memory. Examples include, but are not limited to: computer software, engineering drawings and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identifications, and related information. The term does not include financial reports, cost analyses, and similar information incidental to Project administration. b. The following restrictions apply to all subject data first produced in the performance of this Agreement: (1) Except for its own internal use, the 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 coitractor, 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 Usc 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 seq. 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. Page 45