Res 1150 - Annual Oper Assist G
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COUNCIL BILL NO. 1432
RESOLUTION NO. 1150
A RESOLUTION ENTERING INTO AN AGREEMENT WITH THE STATE OF OREGON,
DEPARTMENT OF TRANSPORTATION KNOWN AS THE "ANNUAL OPERATING
ASSISTANCE GRANT AGREEMENT" FOR FISCAL YEAR 1992-93, AND
AUTHORIZING THE MAYOR AND CITY RECORDER TO SIGN SUCH AGREEMENT.
WHEREAS, the City of Woodburn has applied for operating assistance funds for
Fiscal Year 1992-93 under Section 18 of the Federal Transit Act of 1964, and
WHEREAS, the 1991 Oregon Legislative Assembly authorized State General Fund
assistance to transit systems pursuant to Chapter 428, Oregon Laws 1991, and
WHEREAS, the State of Oregon, Department of Transportation, Public Transit
Division has approved our application for $16,700 from such funds, NOW, THEREFORE,
THE CITY OF WOODBURN RESOLVES AS FOLLOWS:
Section 1. That the City of Woodburn enter into an agreement with the State of
Oregon acting through its Public Transit Division to secure Federal funds through Section
18 of the Federal Transit Act of 1964, for operating assistance during fiscal year 1992-93.
Said agreement is attached hereto and by this referenced incorporated herein.
Section 2. That the Mayor and City Recorder of the City of Woodburn be
authorized to date and sign said agreement on behalf of the City.
APprovedastoFor~ ~ /O/I:r )7L
I .
City Attorney
APPROVED: u)
FRED W. KYSER, M
Passed by the Council October 26, 1992
Submitted to the Mayor October 29, 1992
Approved by the Mayor October 29, 1992
Filed in the office of the Recorder October 29, 1992
ATTES~AR~~~~ORDER
City of Woodburn, Oregon
Page 1 - COUNCIL BILL NO. 1432
RESOLUTION NO. 1150
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CIVIL RIGHTS ASSURANCES
FOR
SMALL CITY AND RURAL AREA GRANT RECIPIENTS
The City of Woodburn (Recipient) certifies, as a condition of receiving financial
assistance under the Oregon Small City and Transit Assistance Program, that:
1. No person on the basis of race, color, or national origin will be subjected
to discrimination in the level and quality of transportation services and
transit-related benefits.
2. The Recipient will compile, maintain, and submit in a timely manner to
the Oregon Department of Transportation, Public Transit Division Title VI
information required by the Urban Mass Transportation Administration
Circular 4702.1 and in compliance with the Department of Transportation's
Title VI regulation, 49 CFR Part 21.9,
3. The Recipient will make it know to the public that those persons alleging
discrimination on the basis of race, color, or national origin as it
relates to the provision of transportation services and transit-related
benefits may file a complaint with the Oregon Department of Transportation,
the Urban Mass Transportation Administration and/or U.S. Department of
Transportation.
4, The Recipient filed a standard DOT Title VI Assurance with the Oregon
Department of Transportation, Public Transit Division on October 24, 1990.
The person or persons whose signature(s) appear below are authorized to sign this
Assurance on behalf of the Recipient.
(Name) Kyser
(Title) Mayo r
October 29, 1992
(Date)
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1992 - 1993
ANNUAL OPERATING ASSISTANCE GRANT AGREEMENT
PARTIES
1. The State of Oregon by and through its Department of Transportation,
Public Transit Division (IlSTATE").
2. City of Woodburn ("RECIPIENT").
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RECITALS
1. The Oregon Transportation Commission acting through STATE is authorized
to enter into contracts and disburse funds for the purpose of supporting
public transportation pursuant to ORS 184.670 to 184.733.
2. The Governor of the State of Oregon in accordance with a request by the
Federal Transit Administration ("FTA"), has designated STATE to evaluate
and select projects and to coordinate the grant application.
3.
Section 18
operating
concerning
if any, is
of the Federal Transit Act of 1964, as amended, provides for
assistance funding in nonurbanized areas. Information
the federal financial assistance used to finance this grant,
attached in Exhibit E of this agreement.
4. The 1991 Legislative Assembly authorized State General Fund assistance to
transit systems pursuant to Chapter 428, Oregon Laws 1991.
5. RECIPIENT has submitted an application which describes the area to be
served, the type of transportation service, and the need for funding.
AGREEMENTS
1. STATE and RECIPIENT agree to be bound by the terms and conditions of the
General Provisions which are attached as Exhibit A and are by reference
incorporated herein, as set out except for:
Section 4.a., Pre-Grant-Award review.
2, STATE and RECIPIENT agree to be bound by the terms of the following
special provisions:
No Special Provisions
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This Agreement shall become effective upon approval and
Administrator of the Fublic Transit Division and
authorized to sign on behalf of RECIPIENT.
signature by the
those officials
This Agreement is approved by the Administrator of the Public Transit Division
under authority granted by the Oregon Transportation Commission, Said authority
is set forth in Oregon Transportation Commission Delegation Order No. 31,
adopted by the Commission on June 21. 1988,
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Signed this
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day of
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, 1992.
STATE OF OREGON BY AND THROUGH
ITS DEPARTMENT OF
TRANSPORTATION, PUBLIC TRANSIT
DIVISION
~~,
Inter m Administrator
Public Transit Division
City of Woodburn
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Cfl~ ~
RECIPIENT's Legal Counsel
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Title: City Recorder
Title:
Title:
Title:
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EXHIBIT A
General Provisions
Part I
STATE's Obli2ations
Section 1. Eli2ible Cost, Costs incurred during the period commencing Julv 1.
1992 and ending June 30, 1993 shall be eligible for reimbursement under this
Agreement.
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Section 2. Contract Limit.
a, STATE shall reimburse RECIPIENT for up to fifty percent (50%)
of the operating deficit and up to eighty percent (80%) of the ad-
ministrative cost associated with project implementation. Such
reimbursement shall not exceed S S 16.700 of State General
Funds and/or federal funds available under Section 18 of the Federal
Transit Act of 1964, as amended.
b, Project funds beyond those required to match federal funds at
the rate of 50 percent for operating expense and 20 percent for
administrative cost shall be considered to be non-participating
funds for the purpose of federal-aid matching requirements.
Section 3. Reimbursement, Reimbursement to RECIPIENT shall be made monthly on
the basis of a report which shall be compiled and submitted to STATE in the
format detailed in Exhibit B which is by this reference incorporated herein.
Said reimbursement shall be subject to the satisfactory completion of an audit
of this grant,
Section 4. Withholding of Pavrnent, STATE reserves the right to withhold
payment of funds if all required reporting has not been submitted, or if there
are any unresolved audit findings.
Section 5. Reallocation of Funds. STATE reserves the right to reallocate any
portion of the amount specified in Part I J Section 2. a. f which I based upon
STATE's estimates, will not be used by June 3D, 1993.
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Exhibit A
General Provisions
Part II
RECIPIENT's Obli2ations
Section 1. Scope of Proiect, RECIPIENT shall operate public transportation
services which substantially conform. to the description contained in its
application for operating assistance during the fiscal year beginning July 1,
1992. RECIPIENT shall notify STATE in writing of changes in its service. Such
transportation services shall be available to the general public.
Section 2. Use of Proi ect Funds.
disburse funds authorized under this
transportation service.
RECIPIENT
Agreement
shall request ;.> receive, and
for the operation of public
Section 3. Submission of Reports, RECIPIENT shall submit to STATE monthly
reports as referred to in Exhibit B. STATE reserves the right to request such
additional information as may be necessary to comply with federal or state
reporting requirements.
Section 4. Audit ReQuirements.
a, Pre-Grant-Award, RECIPIENT shall permit STATE to conduct at
STATE's own expense a pre-grant-award audit of RECIPIENT's financial
and management systems, Such pre-grant-award audit will ensure that
RECIPIENT's financial management procedures comply with the state
and federal requirements applicable to this Agreement, Funds
available under this Agreement cannot be requested by RECIPIENT
until such time as the pre-grant-award audit has been completed.
b. Audit, RECIPIENT shall, at RECIPIENT's own expense, submit to
the audit agency assigned by the State of Oregon, Executive
Department, Accounting Division an annual audit covering the monies
expended under this Agreement and shall submit or cause to be
submitted, the annual audit of any subcontractor of RECIPIENT
responsible for the financial management of funds received under
this Agreement, Said audit(s) shall meet the standards for audit
set out in OMB Circular A-128, Audits of State and Local
Governments.
Section 5. Access to Records. RECIPIENT shall permit STATE, the Secretary of
State of the State of Oregon, the Comptroller General of the United States, the
Secretary of the United States Department of Transportation, or their authorized
representatives, upon reasonable notice, to inspect'all transportation services
rendered by RECIPIENT, or any subcontractor acting on RECIPIENT's behalf, and
all data and records relating to the transportation system and its management,
as well as the physical premises and equipment of the system. Further,
RECIPIENT agrees to maintain all required records for at least three years after
STATE's final payment and other pending matters have been resolved.
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Exhibit A
Section 6. Subcontracts. RECIPIENT shall submit proposed third party agree-
ments relating to provision or operation of transit service to STATE for review.
STATE shall concur, or otherwise respond to RECIPIENT, in writing within fifteen
(15) working days.
Third party agreements should contain clauses relevant to the provl.sl.ons
contained in Section 9 (Compliance with Laws, Regulations, and Ordinances) and
Exhibit D.
Section 7. Hold Harmless. RECIPIENT shall defend, save and hol~harmless the
State of Oregon, including the Oregon Transportation Commission, the Department
of Transportation, and their members, officers, agents, and employees from all
claims, suits, or actions of whatsoever nature resulting from or arising out of
the activities of RECIPIENT or its subcontractors, agents or employees under
this contract. RECIPIENT shall not be required to indemnify the State for any
such liability arising out of the negligent acts or omissions of the State of
Oregon, its employees, or representatives.
This provision is subj ect to the limitations, if applicable, set forth in
Article XI, Section 10 of the Oregon Constitution and in the Oregon Tort Claims
Act, ORS 30.260 to 30.300.
Section 8. Purchases. RECIPIENT shall make purchases of any equipment,
materials, or services pursuant to this Agreement under procedures consistent
with those outlined in Office of Management and Budget (OMB) Circular A-I02
"Uniform Requirements for Grants and Cooperative Agreements with State and Local
Government," (49 CFR Part 18) and the Department of Transportation regulations
(DOT Circular 4600.9B) issued pursuant to it; FTA Circular 4220.1B, "Third Party
Contracting Guidelines;" Oregon Department of General Services Administrative
Rules (Oregon Administrative Rules, Chapter 125): and, Oregon State Law.
Section 9. Comuliance with Laws Re~ulations. Ordinances.
a. RECIPIENT shall comply with the Part II, Terms and Conditions, Urban Mass
Transportation Agreement, which is attached to this Agreement as Exhibit
F when this Agreement is funded in whole or in part with Federal Funds
available under Section 18 of the Federal Transit Act. The amount of
federal participation is shown in Exhibit E of this Agreement.
b. RECIPIENT shall comply with the federal, state and local laws,
regulations, and ordinances applicable to this Agreement. In particular,
the RECIPIENT agrees to comply with the following specific regulations:
(1) Non-discrimination. RECIPIENT will comply with Title VI of the
Civil Rights Act of 1964 (78 Stat 252; 42 USC 2000d), the Americans with
Disabilities Act of 1990 and the regulations of the United States Depart-
ment of Transportation (49 CFR 21, Subtitle A, and 49 CFR Parts 37 and
38), issued pursuant to this Act. RECIPIENT will exclude no person on the
grounds of race, religion, color, sex, age, disability or national origin
from the benefits of aid received under this Agreement.
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Exhibit A
(2) Disadvantaged Business Enterprise. RECIPIENT will provide for full
and fair utilization of socially and/or economically disadvantaged
business enterprises (DBEs). RECIPIENT will use its best efforts to
ensure that DBEs shall have an equal opportunity to compete for contract
and subcontract work under this agreement.
In accordance with 49 CFR 23, all bidders and all contractors shall agree
to abide by and take all necessary and reasonable steps to comply with the
following statement:
DISADVANTAGED BUSINESS ENTERPRISE (DBE)
POLICY STATEMENT
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DBE POLICY, It is the poI icy of the United States Department
of Transportation (DOT) that disadvantaged business
enterprises as defined in the 49 CFR 23 (DBEs) shall have the
maximum opportunity to participate in the performance of con-
tracts financed in whole or in part with federal funds under
this agreement, Consequently, the requirements of 49 CFR 23
apply to this agreement,
DBE OBLIGATION. The RECIPIENT or its contractor agrees to
ensure that DBEs 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 or contractors
shall take all necessary and reasonable steps in accordance
with 49 CFR 23 to ensure that DBEs have the maximum
opportunity to compete for and perform contracts. RECIPIENTs
and their contractors shall not discriminate on the basis of
race, color, national or~g~n. or sex in the award and
performance of DOT-assisted contracts.
DBE APPLICABILITY. This applies to all projects financed by
or through the Oregon Department of Transportation without
regard to funding source, RECIPIENTs and contractors shall
conform to all applicable civil rights laws, orders, and
regulations. RECIPIENTs and their contractors shall not
discriminate on the basis of race, age, sex, color, religion,
national origin, mental or physical handicap, political
affiliation, or marital status in the award and performance
of contracts.
The DBE PoI icy Statement shall be included in all subcontracts entered
into under this contract.
(3) EQual Employment Opportunity. RECIPIENT, and any subcontractor
acting on its behalf, will comply with Executive Order 11246, entitled
"Equal Employment Opportunity", as amended by Executive Order 11375 and
supplemented by Department of Labor regulations (41 CFR Part 60) and Title
I of the Americans with Disabilities Act and the regulations issued
pursuant thereto (29 CFR Part 1630). RECIPIENT will not discriminate
against any employee or applicant for employment because of race, color,
religion, sex, age, or national origin. RECIPIENT will take affirmative
action to ensure that applicants are employed, and that employees are
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Exhibit A
treated during employment, without regard to their race, color, religion,
sex, age, disability or national origin,
(4) Transportation of Disabled Persons. RECIPIENT will provide
transportation service to Aisabled persons which they can use effectively.
RECIPIENT will exclude no person on the basis of a handicap from the
benefits of aid received under this grant (49 CFR Part 27).
(5) Record Keeoin2 and Mana2ement of Funds. RECIPIENT will manage and
account for funds and property received under this Agreement in accordance
with the provisions of Office of Management and Budget Circular A-I02,
"Uniform Requirements for Grants and Cooperative Agreements with State and
Local Governments" (49 CFR Part 18). ....
(6) Eli2ibilitv of Expense. RECIPIENT will prepare its requisitions of
the funds available under this Agreement in accordance with the provisions
of the Office of Budget and Management Circular A-87, "Cost Principles for
State and Local Governments".
(7) Prohibited Interest. RECIPIENT's officers, employees, or agents
shall neither solicit not accept gratuities, favors, or anything of
monetary value from contractors. potential contractors. or parties to
subagreernents.
(8) Charter Service Operations. Neither the RECIPIENT nor any operator
of transportation service that acts on behalf of the RECIPIENT may engage
in charter service operations except as provided under section 3(f) of the
Federal Transit Act of 1964, as amended, 49 U.S.C app. subsection 1602(f),
and ITA regulations "Charter Service," 49 C.F.R. Part 604.
The expenses incurred for charter service, provided in accordance with 49
C.F.R. Part 604, are not eligible for reimbursement under this Agreement.
(9) Schoo 1 Bus Operations. Neither the RECIPIENT nor any operator of
transportation service that acts on behalf of the 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 Federal Transit Acto of 1964, as
amended, 49 U,S,C app. subsection 1602(g), and ITA regulations "School Bus
Operations," 49 C.F.R. Part 60S, and any amendments thereto that may be
issued.
The expenses attributable to exclusive transportation of students and
school personnel are not eligible for reimbursement under this Agreement
(10) Workers Compensation. The RECIPIENT, its subcontractors, if any,
and all employers working under this Agreement are subject employers under
the Oregon Workers' Compensation Law and shall comply with ORS 656.017,
which requires them to provide workers' compensa.tion coverage for all
their subject workers.
(11) Public Contractin2 Reouirements. The RECIPIENT specifically agrees
that the provisions of ORS 279.312, 279.314, 279.316, 279.320 and 279.733
shall governing the performance of this Agreement and any subcontracts
entered into under this Agreement.
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Exhibit A
General Provisions
Part III
General Conditions
Section 1, Suuulemental AEreements.
by a supplemental written agreement
same formalities as this Agreement.
This Agreement may be revised or amended
between the parties and executed with the
Section 2. Termination.
a, For Convenience: The STATE may terminate the Project and cancel this
Agreement in whole or in part whenever: ".~
(1)
The requisite state
unavailable through
otherwise; or,
and/or
failure
federal funding becomes
of appropriation or
(2) The requisite local funding to continue this project
becomes unavailable to RECIPIENT; or,
(3) Both parties agree that continuation of the Project
would not produce results commensurate with the further
expenditure of funds.
b. With Cause:
the Pro j ec t and
The STATE may, by written notice to RECIPIENT, terminate
cancel this Agreement for any of the following reasons:
(1) RECIPIENT takes any action pertaining to this Agreement
without the approval of STATE and which under the pro-
VHlons of this Agreement would have required the
approval of STATE; or,
(2) The commencement, prosecution, or timely completion of
the Project by RECIPIENT is, for any reason, rendered
improbable, impossible, or illegal; or,
(3) RECIPIENT is in default under any provision of this
Agreement.
Section 3. RECIPIENT's Authorization. This Agreement shall be executed by
those officials authorized to execute this Agreement on the RECIPIENT's behalf.
In the event RECIPIENT's governing body delegates signature of the agreement,
RECIPIENT shall attach to this Agreement a copy of the motion or resolution
which authorizes said officials to execute this Agreement, and shall also
certify its authenticity.
Section 4. ReEulations. This Agreement is based upon and is subject to the
regulations issued by FTA pursuant to Section 18 of the Federal Transit Act of
1964, as amended, These regulations are contained in FTA Circular 9040.IC.
FTA may, from time to time, amend these regulations, particularly as they affect
reporting requirements and the matching ratios for operating and administrative
expense. STATE reserves the right to amend this Agreement if it is affected.
STATE will provide thirty (30) days written notice of impending changes and will
prepare a supplemental agreement incorporating the changes to be executed by the
parties to this Agreement.
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SMAll CITY A .~ RURAL AREA OPERATING ASSISTII c PROGRAM
MONTHLY REIMBURSEMENT REQUEST
ADMINISTRATIVE EXPENSE
Supervisors' Salaries
Office Expense
Contracted Services
Marketing
Interest" Expense
Other Administrative Expense
TOTAL ADMINISTRATIVE EXPENSE
Grant Reimbursement (x 0.80)
MATCHING FUNDS
Federal Sources:
Green Thumb/CETA
Older Americans Act
Community Services Grants
Other:
Local Sources
Federal Revenue Sharing
Property Tax levy
Special Transportation Fund
Interest Earnings
Other:
Other Sources
Volunteer Services
Donated Supplies
Foundation Grants
TOTAl MATCHING FUNDS
OPERATING ASSISTANCE GRANT
Exhibit B
REPORTED ADJUSTMENTS CURRENT PROJECT
TO DATE (if any) MONTH TOTAL
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PROVIDED
TO DATE
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SMALL CITY AI ., rlURAL AREA OPERATING ASSIST Al .c PROGRAM
MONTHLY REIMBURSEMENT REQUEST
GRANTEE
FOR
(month or period)
OPERATING EXPENSE
Drivers' Salaries
Fuel & Oil
Insurance
leases
Operating Contracts
Other Operations Expense
Mechanics' Salaries
Parts & Supplies
Tires
Maintenance Contracts
Other Maintenance Expense
TOTAL OPERATING EXPENSE
REVENUE
Farebox
Tickets & Passes
Advertising
Miscellaneous
a:
b:
c:
TOTAL OPERATING REVENUE
OPERATING DEFICIT
Grant Reimbursement x 0.50
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REPORTED ADJUSTMENTS CURRENT PROJECT
TO DATE (if any) MONTH TOTAL
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COLLECTED
TO DATE
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SMALL CITY AND-. ..RAl AREA OPERATING ASSISTAN-C... 'ROGRAM
I, nHL Y REIMBURSEMENT REQUES,I
OPERATING STATISTICS
Passenger Trips
REPORTED . THIS MONTH'S PROJECT
TO DATE STATISTICS TOTAL
TOTAL SYSTEM
~~~
Days of Operation
Hours of Operation
Bus Mileage
PURCHASES FROM DISADVANTAGED BUSINESS ENTERPRISES
DBE WBE AMOUNT OF COMPANY
PURCHASE
0 0
0 0
0 0
0 0
0 0
0 0
REPORTED TOTAL PURCHASES PROJECT TOTAL
TO DATE THIS MONTH
Prepared by
Date:
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EXHIBIT C
SPECIAL SECTION l3(c) WARRANTY
FOR APPLICATION TO THE SMALL URBAN
AND RURAL PROGRAM
The following language shall be made part of the contract of assistance with
the State or other public body charged. with allocation and administration of
funds provided under Section 18 of the Act:
A. General Aoolication
The Oregon Department of Transportation, Public Transit DivBion ("PUBLIC
BODYII) agrees that, in the absence of waiver by the Department of Labor,
the terms and conditions of this warranty, as set forth below, shall apply
for the protection of the transportation related employees of any employer
providing transportation services assisted by Citv of Woodburn
(tlRECIPIENTU), and the transportation related employees of any other
surface public transportation providers in the transport~tion service area
of the project.
The PUBLIC BODY shall provide to the Department of Labor and maintain at
all times during the Project an accurate, up-to-date listing of all
existing transportation providers which are eligible RECIPIENTs of
transportation assistance funded by the Project in the transportation
service area of the Project, and any labor organizations representing the
employees of such providers.
Certification by the PUBLIC BODY to the Department of Labor that the
designated RECIPIENTs have indicated in writing acceptance of the terms
and conditions of the warranty arrangement will be sufficient to permit
the flow of Section 18 funding in the absence of a finding of non-
compliance by the Department of Labor,
B, Standard Terms and Conditions
(1) The Project shall be carried out in such a manner and upon such
terms and conditions as will not adversely affect employees of the
RECIPIENT and of any other surface public transportation provider
in the transportation service area of the Project. It shall be an
obligation of the RECIPIENT and any other legally responsible party
designated by the PUBLIC BODY to assure that any and all
transportation services assisted by the Project are contracted for
and operated in such manner that they do not impair the rights and
interests of affected employees. The term "Project," as used herein,
shall not be limited to the particular facility, service, or
operation assisted by Federal funds, but shall include any changes,
whether organizational, operational, technological, or otherwise,
which are a result of the assistance provided. The phrase "as a
result of the Project" shall when used in this arrangement, include
events related to the Project occurring in anticipation of, during,
and subsequent to the Project and any program of efficiencies or
economies related thereto; provided, however, that volume rises and
falls of business, or changes in volume and character of employment
brought about by causes other
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(2)
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EXHIBIT C
than the Project (including any economies or efficiencies unrelated
to the Project) are not within the purview of this arrangement.
An employee covered by this arrangement, who is not dismissed, dis-
placed or otherwise' worsened in this position with regard to his
employment as a result of the Project, but who is dismissed,
displaced otherwise worsened solely because of the total or partial
termination of the Project, discontinuance of Project services, or
exhaustion of Project funding shall not be deemed eligible for a
dismissal or displacement allowance within the meaning of paragraphs
(6) and (7) of the Model agreement or applicable provisions of
substitute comparable arrangements.
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(a)
.Where employees of a RECIPIENT are represented for collective
bargaining purposes, all proj ect services provided by that
RECIPIENT shall be provided under and in accordance with any
collective bargaining agreement applicable to such employees
which is then in effect,
(2)
(b)
The RECIPIENT or legally responsible party shall provide to
all affected employees sixty (60) days' notice of intended
actions which may result in displacement or dismissals or
rearrangements of the working forces. In the case of
employees represented by a union, such notice shall be
provided by certified mail through their representatives. The
notice shall contain a full and adequate statement of the
proposed changes, and an estimate of the number of employees
affected by the intended changes, and number and
classifications of any jobs in the RECIPIENT's employment
available to be filled by such affected employees.
(2)
(c)
The procedures of this subparagraph shall apply to cases where
notices involve employees represented by a union for
collective bargaining purposes. At the request of either the
RECIPIENT or the representatives of such employees
negotiations for the purposes of reaching agreement with
respect to the application of the terms and conditions of this
arrangement shall commence immediately. If no agreement is
reached within twenty (20) days from the commencement of
negotiations, any party to the dispute may submit the matter
to dispute settlement procedures in accordance with paragraph
(4) of this warranty. The foregoing procedures shall be
complied with and carried out prior to the institution of the
intended action.
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(3)
(4)
EXHIBIT C
For the purpose of providing the statutorily required protections
including those specifically mandated by Section 13(c) of the Actl,
the PUBLIC BODY will assure, as a condition of the release of funds,
that the RECIPIENT agrees to be bound by the terms and conditions
of the National (Model) Section 13(c) Agreement executed July 23,
1975, identified below2, provided that other comparable arrangements
may be substituted therefor, if approved by the Secretary of Labor
and certified for inclusion in these conditions.
Any dispute or controversy arising regarding the application, inter-
pretation, or enforcement of any of the provisions of this
arrangement which cannot be settled by and between ~~e parties to
any final and binding disputes settlement procedure acceptable to
the parties, or in the event they cannot agree upon such procedure,
to the Department of Labor or an impartial third party designated
by the Department of Labor for final and binding determination. The
compensation and expenses of the impartial third party, and any
other jointly incurred expenses, shall be born.e equally by the
parties to the proceeding and all other expenses shall be paid by
the party incurring them.
In the event of any dispute as to whether or not a particular
employee was affected by the Project, it shall be his obligation to
identify the Project and specify the pertinent facts of the Project
relied upon. It shall then be the burden of either the RECIPIENT
of these conditions to prove that factors other than the Project
affected the employees. The claiming employee shall prevail if it
is established that the Project had an effect upon the employee even
if other factors may also have affected the employee.
(5)
The RECIPIENT or other legally responsible party designated by the
PUBLIC BODY will be financially responsible for the application of
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Such protective arrangements shall include, without being limited
to, such provisions as may be necessary for (1) the preservation of
rights. privileges, and benefits (including continuation of pension
rights and benefits) under existing collective bargaining agreements
or otherwise; (2) the continuation of collective bargaining rights;
(3) the protection of individual employees against a worsening of
their positions with respect to their employment; (4) assurances of
employment to employees of acquired mass transportation systems and
priority of reemployment of employees terminated or laid off; and
(5) paid training and retraining programs. Such arrangements shall
include provisions protecting individual employees against a
worsening of their positions with respect to their employment which
shall in no event provide benefits less than those established
pursuant to Section 5(2)(f) of the Act of February 4, 1887 (24 Stat.
379), as amended.
For purposes of this warranty arrangement, paragraph!: (1); (2); (5);
(15); (22); (23): (24); (26); (27); (28); and (29) of the Model
Section 13(c) Agreement, executed July 23, 1975 are to be omitted.
C-3
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,
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EXHIBIT C
these conditions and wil1 make the necessary arrangements so that
any employee covered by these arrangements, or the union
representative of such employee, may file claim of violation of
these arrangements with the RECIPIENT within sixty (60) days of the
date he is terminated or laid off as a result of the Project, or
within eighteen (18) months of the date his position with respect
to his employment is otherw~se worsened as a result of the Project.
In the latter case. if the events giving rise to the claim have
occurred over an extended period, the 18-month limitation shall be
measured from the last such event. No benefits shall be payable for
any period prior to six (6) months from the date of the filing of
any claim.
....~
(6) Nothing in this arrangement shall be construed as depriving any
employee of any rights or benefits which such employee may have
under existing employment or collective bargaining agreements, nor
shall this arrangement be deemed a waiver of any rights of any union
or of any represented employee derived from any other agreement or
provision of federal, state or local law.
(7) In the event any employee covered by these arrangements is
terminated or laid off as a result of the Project, he shall be
granted priority of employment or reemployment to fill any vacant
position within the control of the RECIPIENT for which he is, or by
training or retraining within a reasonable period, can become
qualified, In the event training or retraining is required by such
employment or reemployment, the RECIPIENT or other legally
responsible party designated by the PUBLIC BODY shall provide or
provide for such training or retraining at no cost to the employee.
(8) The RECIPIENT will post, in a prominent and accessible place, a
notice stating that the RECIPIENT has received federal assistance
under the Federal Transit Act and has agreed to comply with the
provisions of Section 13(c) of the Act. This notice shall also
specify the terms and conditions set forth herein for the protection
of employees. The RECIPIENT shall maintain and keep on file all
relevant books and records in sufficient detail as to provide the
basic information necessary to the proper application,
administration, and enforcement of these arrangements and to the
proper determination of any claims arising thereunder.
(9) Any labor organization which is the collective bargaining represen-
tative of employees covered by these arrangements. may become a
party to these arrangements by serving written notice of its desire
to do so upon the RECIPIENT and the Department of Labor. In the
event of any disagreement that such labor organization represents
covered employees, or is otherwise eligible to become a party to
these arrangements, as applied to the Project, the dispute as to
whether such organization shall participate shall be determined by
the Secretary of Labor.
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EXHIBIT C
(10) In the event the Project is approved for assistance under the Act,
the foregoing terms and conditions shall be made part of the
contract of assistance between the federal government and the PUBLIC
BODY or RECIPIENT of federal funds; provided, however, that this
arrangement shall not merge into the contract of assistance, but
shall be independently binding and enforceable by and upon the
parties thereto, and by any covered employee or his representative,
in accordance with its terms, nor shall any other employee
protective agreement merge into this arrangement, but each shall be
independently binding and enforceable by and upon the parties
thereto, in accordance with its terms.
>
C, Waiver
As a part of the grant approval process, either the RECIPIENT or other
lega11y responsible party designated by the PUBLIC BODY may in writing
seek from the Secretary of Labor a waiver of the statutorily required
protections. The Secretary ~il1 waive these protections in cases, where
at the time of the requested waiver, the Secretary determines that there
are no employees of the RECIPIENT or any other surface public
transportation providers in the transportation service area who could be
potentially affected by the project. A 30-day notice of proposed waiver
will be given by the Department of Labor and in the absence of timely
objection, the waiver will become final at the end of the 30-day notice
period, In the event of timely objection, the Department of Labor will
review the matter and determine whether a waiver shall be granted. In the
absence of waiver, these protections shal1 apply to the Project.
c-s
EXHIBIT D
Provisions To Be Included In RECIPIENT's Subcontracts
RECIPIENT's purchasing documents and contracts financed by this Agreement must
contain clauses or conditions relating to the material below.
1.
Administrative, contractual, or legal remedies in instances
contractors violate or breach contract terms. These provisions
provide for such sanctions and penalties as may be appropriate.
where
should
This provision applies to all contracts for more. than $25,000,
2. Termination for cause and for convenience by the RECIPIENT'{ncluding the
manner by which it will be effected and the basis for settlement.
This provision applies to all contracts for more than $10,000.
3. Notice of requirements and regulations pertaining to reporting.
4. Access by the STATE, RECIPIENT, FTA, the Comptroller General of the United
States, or any of their duly authorized representatives to any books,
documents, papers, and records of the contractor which are directly
pertinent to that specific con.tract for the purpose of making audit.
examination, excerpts, and transcriptions.
5. Retention of all required records for three years after RECIPIENTs make
final payments and all other pending matters are closed,
6. Workers Compensation.
This requirement applies to purchases of supplies and equipment, public
works contracts. and contracts for personal services. Every public
contract must contain a clause or condition that all employers working
under the contract are subject employers that will comply with ORS
656.017. ORS 656.017 prescribes the means by which employers must
"maintain assurance" that their subject workers will receive compensation
for compensable injuries under the Workers' Compensation Law.
7. Public Contracting Generally.
Public contracts are governed by the prov~s~ons of ORS Chapter 279.
Subcontracts must contain the following general conditions set out in ORS
Chapter 279:
ORS 279.312 concerning payment of workers, contributions to the Industrial
Accident Fund, liens and payment of withholding taxes.
ORS 279.314 concerning payment of claims by public officers.
ORS 279.316 concerning hours of labor.
ORS 279.320 concerning payments for medical care and providing workers'
compensation.
D-l
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EXHIBIT E
City of Woodburn
Federal Financial Assistance
The information below will assist auditors prepare a report in compliance with
Office of Budget and Management Circular A-128 requirements.
Financing for this grant is divided between state and federal fund~ as follows:
ITA Section 18
State General Fund
Total
$ 9,800
$ 6.900
$ 16,700
Federal pro~ram title
Formula Grant Program for Areas Other Than Urbanized Areas (Section 18 of
the Federal Transit Act of 1964, as amended)
Federal Catalogue Number: 20.509
Federal Grant Number: OR-18-X009
Federal funding agency
U.S. Department of Transportation
Federal Transit Administration
Region X
Suite 3142
Federal Building
915 Second Avenue
Seattle, Washington 98174
E-l
<.._-,_.....__._-,..-."......_~,.
EXHIBIT F
UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION
URBAN MASS TRANSPORTATION ADMINISTRATION
'.."
WASHINGTON, D.C. 20590
c
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. H 1601 et seq.: and for Mass
Transportation Projects under title 23, U.S.C. (Highways).
Form UMTA F 5K
Rev. 5/89
--
'-"~'1"-""T--'-"'-'-'-'_..'-
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.
-,..-..,-..-
TABLE OF CONTENTS
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. proj ect Accounts............................ 4
b. Funds Received or Made Available for the
proj ect.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. "" .. .. .. .. .. .. .. .. .. .. .. 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...lO
Encumbrance of project property..................12
Relocation and Land Acquisition.......,..........12
Flood Hazards................................... .12
Bus Testing...................................... 12
preaward and postdelivery Audit..................12
civil Rights, procurement, settlement and Ethics.13
a. Equal Employment opportunity...............l3
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
or Breaches............................ .16
h. Ethics.................................... .16
i. Interest of Members of or Delegates to
congress. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
i
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.,....
DEPARTMENT OF TRANSPORTATION
URBAN MASS TRANSPORTATION ADMINISTRATION
AGREEMENT
PART II - TERMS ~D 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. U 1601 et ~, and/or title 23, '..~
U.S.C. (Highways).
section 101. Definitions. As used in this Agreement:
a. Aqreement means any Grant Agreement or Cooperative Agreement.
.b. Application means the signed and dated proposal as may be
amended for Federal financial assistance for the Project, together
with all explanatory, supporting { and supplementary documents
heretofore filed with and accepted and approved by the Government
(UMTA) by or on behalf of the Recipient.
c. Approval, Authorization. Concurrence, waiver means a conscious
written act by an authorized official of the Government granting
permission to the Recipient to perform or omit an action pursuant
to this Agreement, which action may not be performed or omitted
without such permission. An approval, authorization, concurrence,
or waiver permitting the performance or omission of a specific
action shall not constitute permission to perform or omit other
similar actions unless such permission is clearly stated. Oral
permission or interpretations have no legal force or effect.
d. UMTA Directive includes the most recent circulars, notices,
and orders that present information about UMTA programs,
application processing procedures, and guidance for administering
approved Projects; there are also Department of Transportation
directives that may be applicable to the Project.
e. Government means the United States of America, or its
cognizant agency, the Department of Transportation (DOT), or
its operating administration, the Urban Mass Transportation
Administration (UMTA), used hereafter interchangeably.
f. Mass Transportation includes public transportation and
means transportation by bus, rail or other conveyance, either
publicly or privately owned, that provides general or special
transportation service (but not including school bus, charter or
sightseeing service) to the public on a regular and continuing
basis.
Page 1
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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'~e 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 Proceedinqs. 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-llO.
Project closeout does not alter these requirements.
e. Chanqed Conditions of Performance (Includinq Litiqation). 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
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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 eQ~ities, 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-2l, 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 Pro;ect Costs and Proqram Income. All costs
charged to the Project, including any approved services
contributed by the Recipient or others, shall be supported by
properly executed payrolls, time records, invoices, contracts, or
vouchers evidencing in detail the nature and propriety of the
charges. The Recipient shall also maintain accurate records of
all Project Funds derived from the implement ion 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
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(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. pavment bv 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 10S.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
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d. Prohibition Aqainst Use of Federal Funds for Lobbvinq.
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 agree~ 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. fi 6503(a), or the
Indian Self-Determination Act, 23 U.S.C. fi 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. Deobliqation of Funds. The Government (UMTA) reserves
the right to deobligate unspent Federal funds prior to project
closeout.
section 106, Riqht 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
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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, equip~ent, or supplies whose aggregate value
exceeds $5,000, which value shall be determined on the basis of
the ratio of the Federal assistance awarded by the Government to
the actual cost of the Project. The following guidelines shall be
followed in determining the fair market value, Unless otherwise
approved in writing by UMTA, the fair market value of equipment
and supplies will be the value of that property at the time
immediately before the reason occurred that prompted the decision
to withdraw that property from transit use. For examp~?, i~ the
event of loss of or damage to the property by casualty-or f1re,
the fair market value of the property will be calculated
immediately before the loss or damage, irrespective of the extent
of insurance coverage. In the case of equipment and supplies,
fair market value shall be based on straight line depreciation of
the equipment and supplies, based on the industry standard for
useful life, irrespective of the reason for withdrawal of that
property from transit use. In the case of real property, the fair
market value shall be determined by competent appraisal based on
an appropriate date as determined by the Government consistent
with the standards of 49 C.F.R. Part 24. The Government, however,
reserves the right to require another method of valuation to be
used if the Government finds that special circumstances so require
to assure the protection of the Federal investment. In unusual
circumstances, the Recipient may request that another reasonable
method of determining fair market value be used, including but not
limited to accelerated depreciation, comparable sales, or
established market values. In determining whether to approve an
alternate method, the Government may consider any action taken,
omission made or unfortunate occurrence suffered by the Recipient
with respect to the preservation or conservation of the value of
the real property, equipment, or supplies that, for any reason,
have been withdrawn from service.
c. The Recipient further agrees that the project real property,
equipment, and supplies shall be used for the provision of mass
transportation service within the area and in the manner set forth
in the project Description. Should the Recipient unreasonably
delay in or refrain from using Project real estate or equipment,
in the manner set forth in the project Description, the Government
reserves the right to require the Recipient to return the entire
amount of the Federal assistance expended on that real estate or
equipment. The Recipient shall keep satisfactory records with
regard to the use of the real property, equipment, and supplies,
and submit to the Government upon request such information as may
be required to assure compliance with this section and shall .
immediately notify the Government in all cases in which project
real property, equipment, or supplies are used in a manner
substantially different from what is set forth in the Project
Description. The Government reserves the right to require the
Recipient to restore Project real property, equipment, or supplies
Page 11
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section 114. civil Riqhts. Procurement. Settlement. and Ethics
a. Eaual Emplovment 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 s~~ll
include, but not be limited to, the following: employment,
upgrading, demotion or transfer, recruitment or recruitment
advertising, layoff or termination: rates of payor other forms
of compensation: and selection for training, including
apprenticeship. The Recipient shall insert the foregoing
provision (modified only to show the particular contractual
relationship) in all of its contracts in connection with the
development or operation of the Project, except contracts for
standard commercial supplies or raw materials and construction
contracts subject to the provisions of section l15.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. Minoritv 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. fi 23.43{ the following clauses must be inserted in each
third party contract: .
Page 13
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(b) A Recipient that is required to submit affirmative
action programs under 49 C.F.R. A 23.41(a)(2) or 49 C.F.R.
A 23.41(a)(3) and has business opportunities for lessees shall
submit for approval to the pepartment 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. A 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 revi~w, 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. A 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 alld
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 Riahts 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. A 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. A 18.36 or OMB Circular A-IIO, Attachment 0, as may be
applicable; and with any supplementary directives or regulations
Page 15
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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 Deleqates to Conqress. 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 prov~s~ons
are applicable to federally assisted construction contracts:
a. Nondiscrimination. Pursuant to the regulations of the
Secretary of Labor at 41 C,F.R. fifi 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
(2) The Recipient shall assure that each nonexempt prime
contractor and subcontractor shall include in each nonexempt
contract the requirements of subsection l15.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. G 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
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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 A~IRMATIVE
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
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(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'EKTERNALLY
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
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(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 AFFIRMATDVE ACTION
STEPS, AT LEAST AS EXTENSIVE AS THOSE STANDARDS PRESCRIBED IN
PARAGRAPH (7) OF THESE SPECIFICATIONS, SO AS TO ACHIEVE MAXIMUM
RESULTS FROM ITS EFFORTS TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY.
IF THE CONTRACTOR FAILS TO COMPLY WITH THE REQUIREMENTS OF THE
EXECUTIVE ORDER, THE IMPLEMENTING REGULATIONS, OR THESE
SPECIFICATIONS, THE DIRECTOR SHALL PROCEED IN ACCORDANCE WITH
41 C.F.R. , 60-4.8.
(14) THE CONTRACTOR SHALL DESIGNATE A RESPONSIBLE OFFICIAL
TO MONITOR ALL EMPLOYMENT RELATED ACTIVITY TO ENSURE THAT THE
COMPANY EEO POLICY IS BEING CARRIED OUT, TO SUBMIT REPORTS
RELATING TO THE PROVISIONS HEREOF AS MAY BE REQUIRED BY THE
GOVERNMENT AND TO KEEP RECORDS. RECORDS SHALL AT LEAST INCLUDE
FOR EACH EMPLOYEE THE NAME, ADDRESS, TELEPHONE NUMBERS,
CONSTRUCTION TRADE, UNION AFFILIATION IF ANY, EMPLOYEE
IDENTIFICATION NUMBER WHEN ASSIGNED, SOCIAL SECURITY NUMBER, RACE,
SEX, STATUS (E.G., MECHANIC, APPRENTICE TRAINEE{ HELPER, OR
LABORER), DATES OF CHANGES IN STATUS, HOURS WORKED PER WEEK IN THE
INDICATED TRADE, RATE OF PAY, AND LOCATIONS AT WHICH THE WORK WAS
PERFORMED. RECORDS SHALL BE MAINTAINED IN AN EASILY
UNDERSTANDABLE AND RETRIEVABLE FORM: HOWEVER, TO THE EXTENT THAT
EXISTING RECORDS SATISFY THIS REQUIREMENT, CONTRACTORS SHALL NOT
BE REQUIRED TO MAINTAIN SEPARATE RECORDS.
(15) NOTHING HEREIN PROVIDED SHALL BE CONSTRUED AS A
LIMITATION UPON THE APPLICATION OF OTHER LAWS THAT ESTABLISH
DIFFERENT STANDARDS OF COMPLIANCE OR UPON THE APPLICATION OF
REQUIREMENTS FOR THE HIRING OF LOCAL OR OTHER AREA RESIDENTS
(E.G., THOSE UNDER THE PUBLIC WORKS EMPLOYMENT ACT OF 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. I 60-4.2:
page 25
...., ---,._,_.._-------_._.~.~-j---~._-----"_.._~'_..._,.~--~--_."--_.-~'"._---
(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 ~ULTING
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-IIO,
Attachment B, as applicable, and Federal (UMTA) guidelines with
regard to bid guarantees and bonding requirements.
f. Insurance Durinq Construction. The Recipient shall, at a
minimum, comply with the insurance requirements normally imposed
by its State and local governments.
g. Siqns. 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. fi 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. Liauidated Damaqes. 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
(b) ~. 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:
~. THE WORK TO BE PERFORMED BY THE
CLASSIFICATION REQUESTED IS NOT PERFORMED BY A CLASSIFICATION
IN THE WAGE DETERMINATION; AND
\_"
Q. THE CLASSIFICATION IS UTILIZED IN THE AREA
BY THE CONSTRUCTION INDUSTRY; AND
~. THE PROPOSED WAGE RATE, INCLUDING ANY
BONA FIDE FRINGE BENEFITS, BEARS A REASONABLE RELATIONSHIP
TO THE WAGE RATES CONTAINED IN THE WAGE DETERMINATION.
2. IF THE CONTRACTOR AND THE LABORERS AND
MECHANICS TO BE EMPLOYED IN THE CLASSIFICATION (IF KNOWN) { OR
THEIR REPRESENTATIVES, AND THE CONTRACTING OFFICER AGREE ON THE
CLASSIFICATION AND WAGE RATE (INCLUDING THE AMOUNT DESIGNATED FOR
FRINGE BENEFITS WHERE APPROPRIATE), A REPORT OF THE ACTION TAKEN
SHALL BE SENT BY THE CONTRACTING OFFICER TO THE ADMINISTRATOR OF
THE WAGE AND HOUR DIVISION, EMPLOYMENT STANDARDS ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C. 20210. THE
ADMINISTRATOR{ OR AN AUTHORIZED REPRESENTATIVE, WILL APPROVE,
MODIFY, OR DISAPPROVE EVERY ADDITIONAL CLASSIFICATION ACTION
WITHIN 30 DAYS OF RECEIPT AND SO ADVISE THE CONTRACTING OFFICER
OR WILL NOTIFY THE CONTRACTING OFFICER WITHIN THE 30-DAY PERIOD
THAT ADDITIONAL TIME IS NECESSARY.
d' 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.
~. THE WAGE RATE (INCLUDING FRINGE BENEFITS WHERE
APPROPRIATE) DETERMINED PURSUANT TO 29 C.F.R. fi 5.5(a) (i) (1) (B)
OR 29 C.F.R. i 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.
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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.
~, 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:
,9,. 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:
}2. 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
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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 RATEr 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, FRING~ 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. fi 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
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(e) THE PENALTY FOR MAKING FALSE STATEMENTS IS
PRESCRIBED IN THE U.S. CRIMINAL CODE, 18 U.S.C. fi 1001.
(10) OVERTIME REOUIREMENTS. 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: LIOUIDATED
DAMAGES. IN THE EVENT OF ANY VIOLATION OF THE REQUIREMENTS OF
29 C.F.R. fi 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. fi 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. fi 5.5(b) (1).
(12) WITHHOLDING FOR UNPAID WAGES AND LIOUIDATED 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. fi 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.
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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 list~g by EPA.
c. Air Pollution. No facilities or equipment shall be acquired,
constructed, or improved as a part of the Project unless the
Recipient obtains satisfactory assurances that they are (or will
be) designed and equipped to limit air pollution as provided in
accordance with the following EPA regulations: "Control of Air
Pollution from Motor Vehicles and Motor Vehicle Engines,"
40 C.F.R. Part 85; "control of Air Pollution from New Motor
Vehicles and New Motor Vehicle Engines; Test Procedures for
Light-Duty Vehicles and Light-Duty Trucks and Selective
Enforcement Auditing of New Light-Duty Vehicles, Light-Duty Trucks
and Heavy-Duty Engines," 40 C.F.R. Part 86; and "Fuel Economy of
Motor Vehicles," 40 C.F.R. Part 600; in accordance with applicable
federally-approved State Implementation Plan(s) (in particular,
the Transportation Control Measures); and in accordance with
appropriate UMTA directives and all other applicable standards.
d. Use of Public Lands. No publicly owned land from a park,
recreation area, or wildlife or waterfowl refuge of national,
state, or local significance as determined by the Federal, State,
or local officials having jurisdiction thereof, or any land from
an historic site of national, state, or local significance may be
used for the Project unless specific findings required under
49 U.S.C. ~ 303 are made by the Department of Transportation.
e. Historic Preservation. The Recipient shall assist the
Government (UMTA) to comply with section 106 of the National
Historic Preservation Act involving historic and archaeological
preservation by:
(1) Consulting the state Historic Preservation Officer
on the conduct of investigations, in accordance with Advisory
council on Historic Preservation regulations, "Protection of
Historic and cultural Properties," 36 C.F.R. Part 800, to identify
properties and resources listed in or eligible for inclusion in
the National Register of Historic Places that may be affected by
the Project, and notifying the Government (UMTA) of the existence
of any such properties: and
(2) Complying with all Federal requirements to avoid or
mitigate adverse effects upon such properties.
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Section 119, Riqhts in Data,
a. The term "subject data" as used herein means recorded
information, whether or not copyrighted, that is delivered or
specified to be delivered under this Agreement. The term includes
graphic or pictorial delineations in media such as drawings or
photographs: text in specifications or related performance or
design-type documents: machine forms such as punched cards,
magnetic tape, or computer memory printouts: and information
retained in computer memory. Examples include, but are not
limited to: computer software, engineering drawings and
associated lists, specifications, standards, process sheets,
manuals, technical reports, catalog item identificatibns, 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(1), 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
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The Oregon Department of Transportation, Public Transit Division
revises Section 119, Rights in Data, subsection d. of the
Transportation Agreement Part II, Terms. and Conditions, to read as
(Recipient)
Urban Mass
follows:
To the extent permitted by Article XI, Section 7 of the Oregon
Constitution and the Oregon Tort Claims Act, the Recipient shall
indemnify, within the limits of the Tort Claims Act, the Government,
its officer, 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, provided,
Recipient shall not be required to indemnify the Government for any
such liability arising out of the wrongful acts of employees or
agents of the Government.
"-'
........,_.
~ .
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 ves~els are available at fair and
reasonable rates for united states-flag commercial
vessels, in such manner as will insure a fair and
reasonable participation ofUrtited 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 ~~sued
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. Buv 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.
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.) a.~
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. fi 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
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.
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. fi 1001, 31 U.S.C. fifi 231
and 3801 et~, and/or 49 U.S.C. app. fi l607(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.
'.i"
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. fi 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.
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