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Ordinance No. 11,376
ORDINANCE NO. 11,376 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A MEMORANDUM OF UNDERSTANDING WITH THE TEXAS DEPARTMENT OF TRANSPORTATION REGARDING THE TEXAS DEPARTMENT OF TRANSPORTATION'S FEDERALLY-APPROVED DISADVANTAGED BUSINESS ENTERPRISE PROGRAM FOR USE IN FEDERALLY ASSISTED CONSTRUCTION AND DESIGN PROJECTS WHEN REQUIRED; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown hereby authorizes and directs the City Manager to execute and the City Clerk to attest to a Memorandum of Understanding with the Texas Department of Transportation regarding the Texas Department of Transportation's Federally-Approved Disadvantaged Business Enterprise Program for use in federally assisted construction and design projects when required. A copy of the agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by th4ative the City Council of the City of Baytown this the 27`h day of May, 2010. ARLOS, Mayor ATT L ETICIA GARZ , City C rk APPROVED AS TO FORM: .NACIO RAMIREZ, SR., C' y ttorney \\Cobsrvl\IegaMarcn\Files\City Counc&0niinancesU01 May 27TxOOTOaERog,vn,U Exhibit "A" MEMORANDUM OF UNDERSTANDING REGARDING THE ADOPTION OF THE TEXAS DEPARTMENT OF TRANSPORTATION'S FEDERALLY-APPROVED DISADVANTAGED BUSINESS ENTERPRISE PROGRAM BY THE CITY OF BAYTOWN,TEXAS This Memorandum of Understanding ("MOU") is by and between the TEXAS DEPARTMENT OF TRANSPORTATION ("TxDOT"), an agency of the State of Texas; and CITY OF BAYTOWN ("CITY")a political subdivision of the State of Texas. Whereas, from time to time CITY receives federal funds from the Federal Highway Administration ("FHWA") through TxDOT to assist CITY with the construction and design of projects partially or wholly funded through FHWA;and Whereas, CITY, as a sub-recipient of federal funds, is required by 49 CFR 26, to implement a program for disadvantaged business enterprises ("DBEs"), as defined by 49 CFR 26 ("DBE Program"); and Whereas, TxDOT has implemented a Disadvantaged Business Enterprise Program (DBE Program)that is approved by FHWA pursuant to 49 CFR part 26; and Whereas, certain aspects of CITY's procurement of construction and design services are subject to review and/or concurrence by TxDOT as a condition of receiving federal funds from FHWA through TxDOT;and Whereas, CITY and TxDOT undertake substantially similar roadway construction projects and design projects and construct and design their respective projects using substantially the same pool of contractors; and Whereas, CITY desires to implement a federally compliant DBE Program by adopting the TxDOT approved program, as recommended by FHWA;and Whereas, TxDOT and CITY find it appropriate to enter into this Memorandum of Understanding to memorialize the obligations, expectations and rights each has as related to TCITY's adoption of the TxDOT DBE Program to meet the federal requirements. Now, therefore, TxDOT and CITY, in consideration of the mutual promises, covenants and conditions made herein, agree to and acknowledge the following: (1) TxDOT has developed a DBE Program and annually establishes a DBE goal for Texas that is federally approved and compliant with 49 CFR 26 and other applicable laws and regulations. (2) CITY is a sub-recipient of federal assistance for construction projects and design projects and, in accordance with 49 CFR § 26.21, must comply with a federally approved DBE Program. TCITY receives its federal assistance through TxDOT. As a sub-recipient, CITY has the option of developing its own program or adopting and operating under TxDOT's federally approved DBE Program. The FHWA recommends that sub-recipients, such as CITY, adopt the DBE program, administered through TxDOT, and CITY by its prescribed protocol adopted the TxDOT DBE Program on May 27,2010. (3) This Memorandum of Understanding evidences FHWA's and TxDOTs consent to the adoption of the TxDOT DBE Program by CITY to achieve its DBE participation in federally assisted Construction and Design Projects. DBE/MOU 4/09 Page I of 5 (4) The parties will work together in good faith to assure effective and efficient implementation of the DBE Program for CITY and for TxDOT. (5) CITY and TxDOT have agreed upon the following delegation of responsibilities and obligations in the administration of the DBE Program adopted by CITY: (a) CITY will be responsible for project monitoring and data reporting to TxDOT. TCITY will furnish to TxDOT any required DBE contractor compliance reports, documents or other information as may be required from time to time to comply with federal regulations. TxDOT will provide the necessary and appropriate reporting forms to CITY. (b) CITY will recommend contract-specific DBE goals consistent with TxDOT's DBE guidelines and in consideration of the local market, project size, and nature of the good(s) or service(s) to be acquired. CITY's recommendation may be that no DBE goals are set on any particular project or portion of a project or that proposed DBE goals be modified. CITY and TxDOT will work together to achieve a mutually acceptable goal; however, TxDOT will retain final decision-making authority regarding DBE goals. (c) TxDOT will cooperate with CITY in an effort to meet the timing and other requirements of CITY projects. (d) CITY will be solely responsible for the solicitation and structuring of bids and bid documents to procure goods and services for its projects that use federal funds and will be responsible for all costs and expenses incurred in its procurements. (e) The DBEs eligible to participate on TxDOT construction projects or design projects also will be eligible to participate on CITY construction projects or design projects that are subject to the DBE Program. The DBEs will be listed on TxDOT's website under the Texas Unified Certification Program(TUCP). (f) CITY will conduct reviews and provide reports with recommendations to TxDOT concerning any DBE Program compliance issues that may arise due to project specific requirements such as Good Faith Effort (GFE), Commercially Useful Function (CUF), etc. CITY and TxDOT will work together to achieve a mutually acceptable goal, however,TxDOT will retain final decision- making authority on those issues and reserves the right to perform compliance reviews by TxDOT's Office of Civil Rights. CITY shall provide TxDOT with a listing of sanctions that will be assessed against contractors for violation of federal DBE regulations and its procedures for investigation of violations and assessment of sanctions for documented violations. (g) CITY will designate a liaison officer to coordinate efforts with TxDOT's DBE Program administrators and to respond to questions from the public and private sector regarding CITY's administration of the DBE Program through TxDOT. (h) CITY will be responsible for providing TxDOT with DBE project awards and DBE Commitments, monthly DBE reports, DBE Final Reports, DBE shortfall reports, and annual and updated goal analysis and reports. (i) TxDOT will be responsible for maintaining a directory of firms eligible to participate in the DBE Program, and providing business development and outreach programs. CITY and TxDOT will work cooperatively to provide supportive services and outreach to DBE firms in CITY area. DBE/MOU 4/09 Page 2 of 5 0) CITY will submit DBE semi-annual progress reports to TxDOT. (k) CITY will participate in TxDOT sponsored training classes to include topics on Title VI of the Civil Rights Act of 1964, DBE Annual Goals, DBE Goal Setting for Construction Projects and Design Projects, DBE Contract Provisions, and DBE Contract Compliance, which may include issues such as DBE Commitments,DBE Substitution,and Final DBE Clearance. TxDOT will include DBE contractors performing work on CITY projects in the DBE Education and Outreach Programs. (1) The City Manager or his designee of CITY will implement all federal requirements, including those stated in Attachments A through D, which are incorporated as though fully set out herein for all purposes. (m) In accordance with 23 CFR 200.1, CITY shall develop procedures for the collection of statistical data(race, color, religion, sex, and national origin) of participants in, and beneficiaries of State highway programs, i.e., relocated person(s), impacted citizens and affected communities; develop a program to conduct Title VI review of program areas; and conduct annual reviews of special emphasis program areas to determine the effectiveness of program area activities at all levels. TxDOT, in accordance with federal law, may conduct compliance reviews by TxDOT's Office of Civil Rights . (6) In the event there is a disagreement between TxDOT and CITY about the implementation of the TxDOT DBE Program by CITY the parties agree to meet within ten (10) days of receiving a written request from the other party of a desire to meet to resolve any disagreement. The parties will make good faith efforts to resolve any disagreement as efficiently as is reasonably possible in consultation with FHWA. Non-compliance by CITY can result in restitution of federal funds to TxDOT and withholding of further federal funds upon consultation with FHWA. (7) This Memorandum of Understanding becomes effective upon execution by all parties and automatically renews each year unless a party notifies the other party of its intent to terminate the agreement. (8) If this Memorandum of Understanding is terminated for any reason, CITY will be allowed reasonable time in which to seek approval from FHWA for an alternative DBE Program, without being deemed non-compliant with 49 CFR Part 26. (9) This Memorandum of Understanding applies only to projects for which CITY is a sub- recipient of federal funds through TxDOT. CITY may also implement a Minority and Women-Owned Small Business Enterprise (NM/SBE) policy and program that applies to projects for which it is not a sub- recipient of federal funds through TxDOT and which are not subject to the TxDOT DBE Program. CITY may, at its option, use some aspects of the TxDOT DBE Program and other similar programs in implementing its other policies and programs for its non-federally funded projects. (10) The following attachments to this Memorandum of Understanding are incorporated as if fully set out herein for all purposes: Attachment A - FHWA Memorandum HCR-1/HIF-1 (relating to access required by the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973); Attachment B - SPECIAL PROVISION 000-461;Attachment C-Comprehensive Development Agreement(CDA) DBE Provisions (with TxDOT's DBE Program attached) and Attachment D - 49 CFR §26.13(contractual assurances). DBF�MOU 4/09 Page 3 of 5 (l 1) The following procedure shall be observed by the parties in regard to any notifications: (a) Any notice required or permitted to be given under this Memorandum of Understanding shall be in writing and may be effected by personal delivery, by hand delivery through a courier or a delivery service, or by registered or certified mail, postage prepaid, return receipt requested, addressed to the proper party, at the following address: CITY OF BAYTOWN Garrison C. Brumback City Manager Hand Delivery: 2401 Market Street Baytown,TX 77520 Registered or Certified Mail (Return receipt requested): 2401 Market Street Baytown, TX 77520 TEXAS DEPARTMENT OF TRANSPORTATION R.D.Brown,BOP Development Section Director Office of Civil Rights 125 E. 11 th Street Austin,Texas 78701-2483 (b) Notice by personal delivery or hand delivery shall be deemed effective immediately upon delivery, provided notice is given as required by Paragraph (a) hereof. Notice by registered or certified mail shall be deemed effective three(3)days after deposit in a U.S. mailbox or U.S. Post Office, provided notice is given as required by Paragraph(a)hereof. (c) Either party hereto may change its address by giving notice as provided herein. (12) This Memorandum of Understanding may be modified or amended only by written instrument,signed by both CITY and the Texas Department of Transportation and dated subsequent to the effective date of this MOU. Except as authorized by the respective parties, no official, employee,agent, or representative of the parties has any authority, either express or implied, to modify or amend this MOU. (13) The provisions of this MOU are severable. If any clause, sentence, provision, paragraph, or article of this MOU, or the application of this MOU to any person or circumstance is held by any court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality, or unenforceability shall not impair, invalidate, nullify, or otherwise affect the remainder of this MOU, but the effect thereof shall be limited to the clause, sentence, provision, paragraph, or article so held to be invalid, illegal, or unenforceable, and the application of such clause, sentence, provision, paragraph, or article to other persons or circumstances shall not be affected;provided, however,CITY and TxDOT may mutually agree to terminate this Memorandum of Understanding. DBENOU 4/09 Page 4 of 5 (14) This Memorandum of Understanding shall not be construed in any way as a waiver by the parties of any immunity from suit or liability that parties may have by operation of law, and the parties hereby retain all of their respective affirmative defenses. (15) In accordance with 49 CFR part 26.13, CITY will ensure that all contractors or subcontractors working on any Federal DOT-assisted contracts for CITY comply with the applicable requirements concerning discrimination. Failure by the contractor to carry out these requirements is a material breach of contract and the CITY will terminate the contract or other such remedy as deemed appropriate by TxDOT. (16) In accordance with 49 CFR part 26.29, CITY will ensure that all contractors or subcontractors working on any Federal DOT-assisted contracts for CITY comply with the prompt pay provisions established by TxDOT. EXECUTED in duplicate originals by TxDOT and CITY, acting through each duly authorized official and effective on the latest date signed. The signatories below confirm that they have the authority to execute this MOU and bind their principles. TEXAS DEPARTMENTOF TRANSPORTATION CITY OF BAYTOWN By: By: Amadeo Saenz,Jr.P.E. Garrison C. Brumback Executive Director City Manager Date: Date: DBEIMOU 4/09 Page 5 of 5 AMENDMENT TO MEMORANDUM OF UNDERSTANDING REGARDING THE ADOPTION OF THE TEXAS DEPARTMENT OF TRANSPORTATION'S FEDERALLY-APPROVED DISADVANTAGED BUSINESS ENTERPRISE PROGRAM BY THE CITY OF BAYTOWN The following amendments with additional attachments are executed in accordance with the Memorandum of Understanding Regarding The Adoption Of The Texas Department Of Transportation's Federally-Approved Disadvantaged Business Enterprise Program By The City of Baytown executed by the City Manager on , in accordance with item(12): Amendment to item(5)(h): [deleting"by TxDOT's Office of Civil Rights(OCR)"in line 6] CITY will conduct reviews and provide reports with recommendations to TxDOT concerning any DBE Program compliance issues that may arise due to project specific requirements such as Good Faith Effort (GFE), Commercially Useful Function (CUF), etc. CITY and TxDOT will work together to achieve a mutually acceptable goal, however, TxDOT will retain final decision-making authority on those issues and reserves the right to perform compliance reviews. CITY shall provide TxDOT with a listing of sanctions that will be assessed against contractors for violation of federal DBE regulations and its procedures for investigation of violations and assessment of sanctions for documented violations. CITY will require contractors for its FHWA federally assisted projects to use the forms attached to this Amendment as follows: Attachment 1 - Disadvantaged Business Enterprise(DBE)Program Commitment Agreement Form SMS 4901 Attachment 2-DBE Monthly Progress Report Form SMS 4903 Attachment 3 -DBE Final Report Form SMS 4904 Attachment 4-Prompt Payment Certification Form(Federal-Aid Projects)2177 Amendment to item(5)(1): [changed"..through C"to"...through F"] (1) The City Manager of the CITY will implement all federal requirements, including those stated in Attachments A through F, which are incorporated as though fully set out herein for all purposes. Amendment to item (5),adding item(n): (n) CITY will comply with 49 CFR§26.29 as stated in Attachment F. Amendment to item(10): [replacing list of attachments with labeled and added attachments and added the word "also" after the word"are"] The following attachments to this Memorandum of Understanding are also incorporated as if fully set out herein for all purposes: Attachment A - FHWA Memorandum HCR-1/HIF-1 (relating to access required by the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973) Attachment B - DBE SPECIAL PROVISION 000-461 Attachment C-49 CFR §26.13 (contractual assurances) Attachment D-DBE Program Compliance Guidance for Local Government Agencies Attachment E-FHWA Form 1273 Attachment F-TxDOT DBE Program and Federal Regulation 49 CFR Part 26 Amendment to item 11(a): [changing mailing information for CITY and TxDOT] Registered or Certified Mail(Return receipt requested): CITY OF BAYTOWN City Manager 2401 Market Street Baytown,Texas 77520 TEXAS DEPARTMENT OF TRANSPORTATION DBE Liaison Office Of Civil Rights 125 E. I Vh Street Austin,Texas 78701 EXECUTED in triplicate originals by TxDOT and the CITY acting through each duly authorized official and effective on the latest date signed. The signatories below confirm that they have the authority to execute this Amendment to the MOU and bind their respective principles. TEXAS DEPARTMENT OF TRANSPORTATION CITY OF BAYTOWN By: By: Amadeo Saenz,Jr. P.E. Garrison C. Brumback Executive Director City Manager Date: Date: Attachment A QClarificationof Oversight Role in Accessibility Memorandum U.S. Department of Transportation Federal Highway Administration Subject: ACTION: Clarification of FHWA's Oversight Role in Date: 9-12-06 Accessibility From: Frederick D. Isler Reply to Attn of: HCRA Associate Administrator for Civil Rights HIF-1 King W. Gee Associate Administrator for Infrastructure To: Associate Administrators Chief Counsel Chief Financial Officer Directors of Field Services Resource Center Director and Operations Managers Division Administrators Federal Lands Highway Division Engineers The Federal Highway Administration (FHWA)recognizes the need for the transportation system to be accessible to all users.The purpose of this memorandum is to clarify FHWA's role and responsibility to oversee compliance on pedestrian access required by the Americans with Disabilities Act of 1990 (ADA)and Section 504 of the Rehabilitation Act of 1973(Section 504). Since 1978, FHWA has promoted accessible transportation systems through technical assistance and guidance on ADA and Section 504. In addition,accessibility improvements are eligible for Federal- aid funding. The FHWA is responsible for implementation of pedestrian access requirements from the ADA and Section 504.This is accomplished through stewardship and oversight over all Federal, State, and local governmental agencies(°public agencies")that build and maintain highways and roadways, whether or not they use Federal funds on a particular project. Policy In February 2000, the FHWA issued a policy providing technical guidance to integrate facilities for pedestrians, including persons with disabilities, into the transportation infrastructure. The guidance can be found at www.fhwa.dot.g_ov/environmentibikeyed/desian.htm#d4. The ADA and Section 504 do not require public agencies to provide pedestrian facilities. However, where pedestrian facilities exist they must be accessible. Furthermore,when public agencies construct improvements providing access for pedestrians, the completed project also must meet accessibility requirements for persons with disabilities to the maximum extent feasible. Planning Title 23 requires that long-range transportation plans and transportation improvement programs, in both statewide and metropolitan planning processes, provide for the development and integrated management and operation of accessible transportation systems and facilities. Additionally, State DOTs and Metropolitan Planning Organizations(MPOs) must certify(at least biennially for State DOTS and annually for MPOs)that the transportation planning process is being carried out or conducted in accordance with all FHWA, Federal Transit Administration and other DBEIMou 36/08 Page 1 of 27 applicable Federal statutory and regulatory requirements[see 23 CFR 450.220 and 23 CFR 450.334, respectively). Further, 23 CFR 450.316(b)(3) requires the metropolitan planning process to identify actions necessary to comply with the ADA and Section 504. Transition Plans The ADA and Section 504 require State and local governments with 50 or more employees to perform a self-evaluation of their current services, policies, and practices that do not or may not meet ADA requirements.The public agency must develop a Transition Plan addressing these deficiencies.This plan assesses the needs of persons with disabilities, and then schedules the required pedestrian accessibility upgrades.The Transition Plan is to be updated periodically, with its needs reflected in the processes utilized by State DOTS, MPOs, and transit agencies to develop the Statewide Transportation Improvement Programs and metropolitan Transportation Improvement Programs. Projects Public agencies should work to meet accessibility requirements throughout the project delivery process. Issues surrounding pedestrian accessibility should be addressed at the earliest stage possible to reduce or prevent conflicts with other right-of-way, planning, environmental, and design considerations. This could include the acquisition of right-of-way and use of special plan details for specific locations to remove barriers. Projects requiring pedestrian accessibility include projects for new construction and projects altering existing street and highway facilities. New Construction All projects for new construction that provide pedestrian facilities must incorporate accessible pedestrian features to the extent technically feasible,without regard to cost.The development process should ensure accessibility requirements are incorporated in the project. Alterations Alterations shall incorporate accessibility improvements to existing pedestrian facilities to the extent that those improvements are in the scope of the project and are technically feasible,without regard to cost. Projects altering the usability of the roadway must incorporate accessible pedestrian improvements at the same time as the alterations to the roadway occur. See Kinney v.Yerusalim, 9 F.3d 1067(3d Cir. 1993), cert. denied, 511 U.S.C. 1033(1994).Alterations are changes to a facility in the public right-of-way that affect or could affect access, circulation, or use by persons with disabilities. The FHWA has determined that alterations are projects that could affect the structure, grade, function, and use of the roadway. Alteration projects include reconstruction, major rehabilitation, structural resurfacing,widening, signal installation, pedestrian signal installation, and projects of similar scale and effect. Maintenance Maintenance activities are not considered alterations. Therefore, maintenance projects do not require simultaneous improvements to pedestrian accessibility under the ADA and Section 504. The U.S. Department of Justice(DOJ)and the courts consider maintenance activities to include filling potholes. The FHWA has determined that maintenance activities include actions that are intended to preserve the system, retard future deterioration,and maintain the functional condition of the roadway without increasing the structural capacity. Maintenance activities include, but are not limited to, thin surface overlays(nonstructural),joint repair, pavement patching(filling potholes), shoulder repair, signing, striping, minor signal upgrades, and repairs to drainage systems. As part of maintenance operations, public agencies' standards and practices must ensure that the day-to-day operations keep the path of travel open and usable for persons with disabilities, throughout the year.This includes snow and debris removal, maintenance of pedestrian traffic in work zones,and correction of other disruptions. Identified accessibility needs should be noted and incorporated into the transition plan. Accessibility Design Criteria for Sidewalks, Street Crossings, and Trails Sidewalks and Street Crossings Where sidewalks are provided, public agencies shall provide pedestrian access features such as continuous, unobstructed sidewalks, and curb cuts with detectable warnings at highway and street crossings. 28 CFR 35.151(c), referencing 28 CFR Part 36,App.A,ADA Accessibility Guidelines (ADAAG). The FHWA encourages the use of ADAAG standards. If pedestrian signals are provided, they must have a reasonable and consistent plan to be accessible to persons with visual disabilities. DBE/MOU 36/09 . Page 2 of 27 Sidewalks and street crossings generally should use the guidelines the Access Board is proposing for public rights-of-way. The FHWA distributed an information memorandum on November 20, 2001, stating that Designing Sidewalks and Trails, Part 11, Best Practices Design Guide can be used to design and construct accessible pedestrian facilities. This report provides information on how to implement the requirements of Title II of the ADA. Designing Sidewalks and Trails for Access is the most comprehensive report available for designing sidewalks and street crossings and contains compatible information on providing accessibility with information published by the Access Board in the ADAAG.This report can be found at www.fhwa.dot.aov/environment/sidewalk2. When the Access Board completes guidelines for public rights-of-way and they are adopted by the United States Department of Transportation and DOJ as standards under the ADA and Section 504, they will supersede the currently used standards and criteria. When Federal-aid highway program funds are used for parking facilities, or buildings such as transit facilities, rest areas, information centers,transportation museums, historic preservation projects, or other projects where pedestrians are expected,the project must meet the current applicable accessibility standards, whether or not the project is within the public right-of-way. The ADAAG includes special provisions for building alterations and for historic preservation projects. Shared Use Paths and Trails The design standards for shared use paths and trails are specific to the function of the path or trail: • Shared use paths and pedestrian trails that function as sidewalks shall meet the same requirements as sidewalks.Where shared use paths and pedestrian trails cross highways or streets,the crossing also shall meet the same requirements as street crossings, including the provision of detectable warnings. • Shared use paths and pedestrian trails that function as trails should meet the accessibility guidelines proposed in the Access Board's Regulatory Negotiation Committee on Accessibility for Outdoor Developed Areas Final Report found at www.access-board.gov/0utdoorioutdoor-rec- rpt.htm.This report also has guidelines for Outdoor Recreation Access Routes(routes connecting accessible elements within a picnic area, camping area, or a designated trailhead). • Recreational trails primarily designed and constructed for use by equestrians, mountain bicyclists, snowmobile users, or off-highway vehicle users, are exempt from accessibility requirements even though they have occasional pedestrian use. Most trailside and trailhead structural facilities(parking areas, restrooms)must meet the ADAAG standards. Technical Feasibility and Cost When constructing a new transportation facility or altering an existing transportation facility, a public agency should consider what is included within the scope of the project. For elements that are within the scope of the project,the ADAAG provides that"Any features of a...facility that are being altered and can be made accessible shall be made accessible[i.e., made to conform with ADAAG]within the scope of the alteration."ADAAG 4.1.6Q).The only exception to this rule is where conformity with ADAAG is"technically infeasible,"meaning that"existing structural conditions would require removing or altering a load-bearing member which is an essential part of the structural frame[e.g., in the case of a highway project, a bridge support]; or because other existing physical or site constraints prohibit modification of addition of elements, spaces, or features which are in full and strict compliance with the minimum requirements for new construction and which are necessary to provide accessibility."ADAAG 4.1.60). Where making an alteration that meets accessibility requirements is technically infeasible, the public agency must ensure that the alteration provides accessibility to the"maximum extent feasible." If a public agency believes that full ADAAG compliance is technically infeasible, the public agency should document that the proposed solution to the problem meets the"maximum extent feasible" test. With respect to any element of an alteration that is within the scope of the project and is not technically infeasible, DOJ guidance provides that under ADAAG standards"cost is not a factor." DOJ Technical Assistance Manual for Title II of the ADA, II-6.3100(4). Consequently, if the accessibility improvement is technically feasible,the public agency must bear the cost of fully meeting ADAAG standards. However, cost may be a factor in determining whether to undertake a stand-alone accessibility DBE/MOU 36/09 Page 3 of 27 improvement identified in a Transition Plan. For example, if an existing highway, not scheduled for an alteration, is listed in the public agency's Transition Plan as needing curb cuts, the public agency may consider costs that are"unduly burdensome."The test for being unduly burdensome Is the proportion of the cost for accessibility improvements compared to the agency's overall budget, not simply the project cost. If the project alters any aspect of the pedestrian route, it must be replaced with accessible facilities. Additional work outside of the scope and limits of the project altering a facility is at the discretion of the agency. However, any features not conforming to ADA requirements outside the project scope should be added to the Transition Plan. FHWA Responsibilities The FHWA is responsible for ensuring public agencies meet the requirements of the ADA and Section 504 for pedestrian access for persons with disabilities. Under DOJ regulations, FHWA divisions must work-with their State DOTs, MPOs, and local public agencies to ensure ADA and Section 504 requirements are incorporated in all program activities for all projects within the public right-of-way regardless of funding source. Program activities include project planning, design, construction, and maintenance. Furthermore, FHWA is responsible for ensuring accessibility requirements for projects that are not within public right-of-way, but use funding through FHWA.This includes parking areas, information centers, buildings, shared use paths, and trails. Divisions have a legal responsibility to work with State agencies or other recipients to ensure ADA and Section 504 requirements are incorporated into all projects using funding through FHWA. For all projects that use Federal funds as part of the financing arrangements, the division offices need to periodically: • Review those projects, where they have oversight responsibilities, for accommodation of pedestrians.The divisions shall not approve Federal funding for projects that do not adequately provide pedestrian access for persons with disabilities where the project scope and limits include pedestrian facilities in the public right-of-way. • Review the Stewardship Agreement to ensure pedestrian accessibility requirements are included, as appropriate. • Review the State DOT, MPO, and/or local jurisdiction processes, procedures, guidelines, and/or policies that address ADA in transportation planning and programming processes and how accessibility commitments are addressed in transportation investment decisions. • Assist transportation agencies in updating their Transition Plans. The United States Department of Transportation Section 504 regulation requires FHWA to monitor the compliance of the self-evaluation and Transition Plan of Federal-aid recipients(49 CFR 27.11).The ADA deadline for completing the accessibility improvements within the Transition Plan was in 1995. For those State and local governments that have not performed the self-evaluation and prepared a plan, it is critical that they complete the process. • Encourage and facilitate training for FHWA personnel on accessible pedestrian features. • Ensure pedestrian accessibility compliance through periodic program reviews of recipients' highway planning, design, and construction activities. • In addition, the Federal lands Highway Divisions should ensure that each direct Federal construction project fulfills both policy guidance on pedestrian access and meets the minimum ADA and Section 504 accessibility requirements. For all highway, street and trail facilities, regardless of whether Federal funds are involved, the division offices need to: • Perform onsite review of complaints about accessibility and report the findings of the review to HCR-1. • Make presentations and offer training on pedestrian accessibility at meetings, conferences, etc. DBENOU 36/09 Page 4 of 27 • In contacts with State and local officials, encourage them to develop procedures for incorporating pedestrian accessibility into their projects. Additional Information and Resources A Web site with questions and answers concerning recurring issues, training opportunities, and background legal information on FHWA's responsibilities under the ADA and Section 504 is located at htto:l/www.fhwa.dot.govlcivilrights4ndex.htm.This memorandum has been reviewed and approved by the U.S. Department of Transportation General Counsel as consistent with applicable disability law. Questions concerning these obligations may be directed to: • For Accessibility Policy: Candace Groudine, Bob Cosgrove, Office of Civil Rights For Design Standards: William A. Prosser, Office of Program Administration • For Trails: Christopher Douwes, Office of Natural and Human Environment • For Construction and Maintenance:Christopher Newman, Office of Asset Management • For Legal: Lisa MacPhee. Office of the Chief Counsel Igoe` 2006 �, This page last modified on March 6,2007 FHWA Home I Civil Rights Home I Feedback 0 FNWA United States Department of Transportation-Federal Highway Administration DBE/MOU 36/09 Page 5 of 27 F—dQuestions and Answers AboutADA/Section These questions and answers are presented to help FHWA and its State and local transportation department partners better understand roles and responsibilities to provide accessible transportation facilities under the Americans with Disabilities Act of 1990(ADA) and the Rehabilitation Act of 1973(Section 504).These questions and answers are derived from extensive experience and input from the FHWA Offices of Civil Rights, Infrastructure,Chief Counsel, and Planning, Environment, and Realty. Like all guidance material,these questions and answers are not, in themselves, legally binding and do not constitute regulations.These Q&As explain the FHWNs position on the implementation of the ADA and Section 504.These questions and answers have been reviewed and approved by the U.S. Department of Transportation General Counsel as consistent with applicable disability law. The-FHWA Offices of Civil Rights, Infrastructure, Chief Counsel, and Planning, Environment, and Realty developed these questions and answers and approved them as consistent with the language and intent of the ADA and Section 504.The questions and answers outlined in this document are to be applied to Federal, State, and local governmental agencies; hereafter called"public agencies"or"agencies." Public Agencies covered by ADA and Section 504 1. What authority requires public agencies to make public right of way accessible for all pedestrians with disabilities? 2. What do these statutes require public agencies to do? 3. Does the ADA require public agencies to provide pedestrian facilities? 4. What is FHWA's responsibility for assuring access for persons with disabilities? 5. What public agencies must provide accessible pedestrian walkways for persons with disabilities? 6. Can a public agency make private individuals or businesses responsible for ADA and Section 504 mandated pedestrian access? 7. What United States Department of Justice (USDOJ)and United States Department of Transportation (USDOT)regulations govern accessibility requirements? 8. What is FHWA's authority to implement ADA and Section 504 requirements? 9. What is the gublic right of way? Transition plans 10. What authority requires public agencies to make transition plans? 11. What should a transition plan include? 12. How does the transition plan relate to a public agency's transportation planning process? 13. What public agencies must make a transition plan? 14. When should the FHWA review an agency's transition plan? 15. When and how should a transition plan be updated? Projects Covered by the ADA and Section 504 16. What aroiects must provide pedestrian agcess for persons with disabilities? 17. What projects constitute an alteration to the public right of way? 18. What activities are not considered to be alterations? Timing of Accessibility Improvements DBOMOU 36/08 Pago 6 of27 19. Does a project altering a public right of way require simultaneous accessibility improvements? 20. When does the scope of an alteration project trigger accessibility Improvements for people with disabilities? 21. Do maintenance activities require simultaneous improvements of the facility to meet ADA standards? 22. When should accessible design elements be incorporated into projects in the public right of way? Cost 23. How does cost factor into a public agency's decision in its transition plan concerning which existing facilities must comply with ADA and Section 504 pedestrian access requirements? 24. For a new project planned outside of the transition plan, with ADA accessibility improvements required to make the facility readily accessible and useable by individuals with disabilities, can cost be a reason not to complete an ADA-required accessibility improvement? 25. For an alteration project planned outside of the transition plan. with ADA accessibility improvements required within the scope of the project,can cost be a reason to decide what ADA-required improvements will be completed? 26. What role does the"maximum extent feasible"standard play for ADA accessibility requirements in altered rop wects? 27. What should a public agency do when it does not control all of the public right of way required to provide access for persons with disabilities? .28. Can a public agency delay compliance with the ADA and Section 504 on alteration projects through a systematic approach to schedule projects? Elements of Accessible Design 29. What are the elements of an accessible des! n? Funding 30. What sources of funding may be used to comgly with ADA and Section 504 requirements? Maintenance 31. What obligation does a public agency have regarding snow removal in its walkways? 32. What day-to-day maintenance is a public agency responsible for under the ADA? Criteria 33. What accessibility training is available? 34. Where is information on the criteria to be used in developing accessible facilities? Public Agencies covered by ADA and Section 504 1. What authority requires public agencies to make public right-of-way accessible for all pedestrians with disabilities? Public rights-of-way and facilities are required to be accessible to persons with disabilities through the following statutes: Section 504 of the Rehabilitation Act of 1973(Section 504) (29 U.S.C. §794)and Title II of the Americans with Disabilities Act of 1990(ADA)(42 U.S.C. §§ 12131-12164).The laws work together to achieve this goal. (9-12-06) 2. What do these statutes require public agencies to do? These statutes prohibit public agencies from discriminating against persons with disabilities by excluding them from services, programs, or activities.These statutes mean that the agency must provide pedestrian access for persons with disabilities to the agency's streets and sidewalks,whenever a pedestrian facility DSE/MOU 36/08 Page 7 of 27 exists. Regulations implement this requirement by imposing standards for accessible features such as curb cuts, ramps, continuous sidewalks, and detectable warnings. (9-12-06) 3. Does the ADA require public agencies to provide pedestrian facilities? No. However, when a public agency provides a pedestrian facility, it must be accessible to persons with disabilities to the extent technically feasible. 4. What is FHWA's responsibility for assuring access for persons with disabilities? FHWA is responsible for ensuring access for persons with disabilities in four areas: 1. For surface transportation projects under direct FHWA control(e.g., Federal lands projects): FHWA is responsible for ensuring that project planning,design, construction, and operations adequately address pedestrian access for people who have disabilities. 2. For Federally funded surface transportation projects that provide pedestrian facilities within the public right-of-way: FHWA is responsible for ensuring that the public agencies' project planning, design, and construction programs provide pedestrian access for persons with disabilities. FHWA-funded projects outside of the public right-of-way, such as Transportation Enhancement projects, must also adhere to these requirements. 3. For pedestrian facilities within the public right-of-way, or any other FHWA enhancement project, regardless of funding source: FHWA is responsible for investigating complaints.28 CFR§§ 35.170-- 35.190. 4. FHWA should provide or encourage accessibility training for Federal, State, and local agencies and their contractors. FHWA does not have ADA oversight responsibilities for projects outside of the public right-of-way that do not use Federal surface transportation program funds. (9-12-06) 5. What public agencies must provide accessible pedestrian walkways for persons with disabilities? All State and local governmental agencies must provide pedestrian access for persons with disabilities in compliance with ADA Title 11.42 U.S.C. §12131(1). Federal, State, and local governments must provide pedestrian access for persons with disabilities in compliance with Section 504 standards.29 U.S.C. §794(a). (9-12-06) 6. Can a public agency make private individuals or businesses responsible for ADA and Section 504 mandated pedestrian access? No.The public agency is responsible for providing access for persons with disabilities. Private entities with joint responsibility for a public right-of-way, such as a private tenant on public property, are responsible for accessibility for persons with disabilities on the public right-of-way under Title II of ADA.The lease or other document creating this legal relationship should commit the private party to ensuring accessibility. In addition, public/private partnership relationships for the public right-of-way retain accessibility obligations to persons with disabilities under Title II. If the private entity eventually takes over the right-of-way in its entirety, then the private entity becomes responsible for accessibility for persons with disabilities under the private entity's obligations under Title II I of the ADA. (9-12-06) 7. What United States Department of Justice (DOJ)and United States Department of Transportation (DOT) regulations govern accessibility requirements? The DOJ ADA regulation is 28 CFR Part 35. The DOT Section 504 regulation at 49 CFR Part 27 governs public agencies,with the ADA incorporated at 49 CFR§27.19. Additional regulations drafted specifically for recipients of the Federal Transit Administration are at 49 CFR Part 37. (9-12-06) 8. What is FHWA's authority to implement ADA and Section 504 requirements? The DOJ regulations designate the DOT as the agency responsible for overseeing public agencies' compliance with the ADA.28 CFR§35.190(b)(8).The DOT has delegated to the FHWA the responsibility to ensure ADA compliance in the public right-of-way and on projects using surface transportation funds. (9-12- 06) 9. What is the public right-of-way? The public right-of-way consists of everything between right-of-way limits, including travel lanes, medians, planting strips, sidewalks, and other facilities. (9-12-06) Transition plans 10. What authority requires public agencies to make transition plans? The ADA requires public agencies with more than 50 employees to make a transition plan. 28 CFR §35.150(d). (9-12-06) DBE/MOU 36/08 Page 8 of 27 11. What should a transition plan include? The transition plan must include a schedule for providing access features, including curb ramps for walkways. 28 CFR §35.150(d)(2).The schedule should first provide for pedestrian access upgrades to State and local government offices and facilities, transportation, places of public accommodation,and employers,followed by walkways serving other areas.28 CFR§35.150(d)(2). The transition plan should accomplish the following four tasks: 1. identify physical obstacles in the public agency's facilities that limit the accessibility of its programs or activities to individuals with disabilities; 2. describe in detail the methods that will be used to make the facilities accessible; 3. specify the schedule for taking the steps necessary to upgrade pedestrian access to meet ADA and Section 504 requirements in each year following the transition plan;and 4. indicate the official responsible for implementation of the plan.28 CFR§35.150(d)(3). (9-12-06) 12. Now does the transition plan relate to a public agency's transportation planning process? The ADA transition plan is intended to identify system needs and integrate them with the State's planning process.The transition plan and its identified needs should be fully integrated into the public agency's Statewide Transportation Improvement Program(STIP)and metropolitan Transportation Improvement Program(TIP). Agencies should incorporate accessibility improvements into the transportation program on an ongoing basis in a variety of ways: 1. Any'construction project that is programmed must meet accessibility requirements when built. 2. Accessibility improvements identified in the transition plan that are not within the scope of an alteration project should be incorporated into the overall transportation planning process.This can be accomplished through the development of stand-alone accessibility projects. 3. As a means to identify ADA compliance needs, during scheduling maintenance activities, the agencies should identify ADA accessibility needs and incorporate them into the overall transportation planning process. (9-12-06) 13. What public agencies must make a transition plan? The ADA requires any public agency with more than 50 employees to make a transition plan setting forth the steps necessary to make its facilities accessible to persons with disabilities. 28 CFR§35.150(d). (9-12-06) 14. When should the FHWA review an agency's transition plan? DOT Section 504 regulation requires FHWA to monitor the compliance of the self-evaluation and transition plans of Federal-aid recipients(49 CFR §27.11). The FHWA Division offices should review pedestrian access compliance with the ADA and Section 504 as part of its routine oversight activities as defined in their stewardship plan. (9-12-06) 15. When and how should a transition plan be updated? An agency's transition plan should have been completed by January 26, 1992, and should be based on updates of the self-evaluation conducted to comply with the requirements of Section 504. 28 CFR§35.105. The plan should be updated periodically to ensure the ongoing needs of the community continue to be met. The transition plan should be coordinated appropriately with the STIP and the TIP. Changes to the plan shall be made available to the public for comment.The public agency should specifically target any local community groups representing persons with disabilities for comment,to ensure that the agency is meeting the local priorities of the persons with disabilities in that community. If a public agency has never completed a transition plan, the Division should inform the public agency to complete a transition plan now and review that public agency's completed transition plan. The ADA deadline for completing the improvements listed in the transition plans was January 26, 1995. For those State and localities that have not completed their self-evaluation and transition plans, it is critical that they complete this process. (9-12-06) Projects Covered by the ADA and Section 504 16. What projects must provide pedestrian access for persons with disabilities? Any project for construction or alteration of a facility that provides access to pedestrians must be made accessible to persons with disabilities.42 U.S.C. §§ 12131 -12134; 28 CFR§§35.150, 35.151; Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993), cent.denied, 511 U.S. 1033(1994). (9-12-06) 17. What projects constitute an alteration to the public right-of-way? An alteration is a change to a facility in the public right-of-way that affects or could affect access, circulation, or use. Projects altering the use of the public right-of-way must incorporate pedestrian access Improvements within the scope of the project to meet the requirements of the ADA and Section 604.These projects have the potential to affect the structure, grade, or use of the roadway.Alterations include items such as reconstruction, major rehabilitation,widening, resurfacing (e.g. structural overlays and mill and fill), signal DBE/MOU 36/08 Page 9 of 27 installation and upgrades, and projects of similar scale and effect. (9-12-06) 18. What activities are not considered to be alterations? The DOJ does not consider maintenance activities, such as filling potholes, to be alterations.The DOJ does consider resurfacing beyond normal maintenance to be an alteration. DOJ's ADA Title II Technical Assistance Manual, § II-6.6000, 1993. The FHWA has determined that maintenance activities include actions that are intended to preserve the system, retard future deterioration, and maintain the functional condition of the roadway without increasing the structural capacity.These activities include, but are not limited to, thin surface treatments(nonstructural), joint repair, pavement patching(filling potholes), shoulder repair,signing, striping, minor signal upgrades, and repairs to drainage systems. (9-12-06) Timing of Accessibility Improvements 19. Does a project altering a public right-of-way require simultaneous accessibility improvements? Yes.An alteration project must be planned, designed, and constructed so that the accessibility improvements within the scope of the project occur at the same time as the alteration. 29 CFR§35.151; Kinney v. Yerusallm, 9 F.3d 1067 (3d Cir. 1993), cart. denied, 511 U.S. 1033(1994). The ADA does not stipulate how to perform simultaneous accessibility improvements. For example, a public agency may select specialty contractors to perform different specialized tasks prior to completion of the alteration project or concurrently with an ongoing project. (9-12-06) 20. When does the scope of an alteration project trigger accessibility improvements for people with disabilities? The scope of an alteration project is determined by the extent the alteration project directly changes or affects the public right-of-way within the project limits.The public agency must improve the accessibility of only that portion of the public right-of-way changed or affected by the alteration. If a project resurfaces the street,for accessibility purposes the curbs and pavement at the pedestrian crosswalk are in the scope of the project, but the sidewalks are not. Any of the features disturbed by the construction must be replaced so that they are accessible.All remaining access improvements within the public right-of-way shall occur within the schedule provided in the public agency's planning process. (9-12-06) 21. Do maintenance activities require simultaneous improvements of the facility to meet ADA standards? No. Maintenance activities do not require simultaneous improvements to pedestrian accessibility under the ADA and Section 504. However, in the development of the maintenance scope of work identified accessibility needs should be incorporated into the transition process. (9-12-06) 22. When should accessible design elements be incorporated into projects in the public right-of-way? FHWA encourages the consideration of pedestrian needs in all construction, reconstruction, and rehabilitation projects. If a public agency provides pedestrian facilities, those facilities must be accessible to persons with disabilities.A public agency is not relieved of its obligation to make its pedestrian facilities accessible if no individual with a disability is known to live in a particular area.This is true regardless of its funding source. DOD's ADA Title II Technical Assistance Manual, § II-5.1000, 1993. (9-12-06) Cost 23. How does cost factor into a public agency's decision in its transition plan concerning which existing facilities must comply with ADA and Section 504 pedestrian access requirements? For existing facilities requiring accessibility improvements as scheduled in the transition plans, the public agency must provide accessibility improvements unless the cost of the upgrades is unduly burdensome.The test for being unduly burdensome is the proportion of the cost for accessibility improvements compared to the agency's overall budget, not simply the project cost.28 CFR Part 35,App.A, discussion at§35.160,¶¶4—7. The decision that pedestrian access would be unduly burdensome must be made by the head of a public agency or that official's designee, accompanied by a written statement of the reasons for the decision. 28 CFR§35.150(a)(3). (9-12-06) 24. For a new project planned outside of the transition plan, with ADA accessibility improvements required to make the facility readily accessible and useable by individuals with disabilities, can cost be a reason not to complete an ADA-required accessibility improvement? No. Cost may not be a reason to fail to construct or delay constructing a new facility so that the facility is readily accessible to and useable by persons with disabilities under the ADAAG standards. 28 CFR §35.151(a); see DOJ Technical Assistance Manual for Title II of the ADA, II-6.3100(3). (9-12-06) 25. For an alteration project planned outside of the transition plan, with ADA accessibility improvements required within the scope of the project, can cost be a reason to decide what ADA-required improvements will be completed? No. Cost may not be a reason for a public entity to fail to complete an ADA-required improvement within the DBE/MOU 36/08 Page 10 of 27 scope of an alteration project under the ADAAG standards.A public agency must complete any ADA-required accessibility improvements within the scope of an alteration project to the maximum extent feasible. 28 CFR §35.151(b); DOJ Technical Assistance Manual for Title II of the ADA, 11-6.3100(4). (9-12-06) 26. What role does the°maximum extent feasible"standard play W ADA accessibility requirements in altered projects? In an alteration projeqt,the public agency must incorporate the ADA accessibility standards to the maximum extent feasible.28 CFR§35.151(b). The feasibility meant by this standard is physical possibility only.A public agency is exempt from meeting the ADA standards in the rare instance where physical terrain or site conditions restrict constructing or altering the facility to the standard.ADA Accessibility Guidelines 4.1.6(1)0). Cost is not a factor in determining whether meeting standards has been completed to the maximum extent feasible. DOD's ADA Title II Technical Assistance Manual, § II-6.3200(3)-(4), 1993. No particular decisionmaking process is required to determine that an accessibility improvement is not technically feasible, but the best practice is to document the decision to enable the public agency to explain the decision in any later compliance review. (9-12-06) 27. What should a public agency do when it does not control all of the public fight-of-way required to provide access for persons with disabilities? The public agency should work jointly with all others with interests in the highway, street,or walkway to ensure that pedestrian access improvements occur at the same time as any alteration or new project. The ADA encourages this cooperation by making each of the public agencies involved subject to complaints or lawsuits for failure to meet the ADA and Section 504 requirements.28 CFR§§35.170—35.178. (9-12-06) 28. Can a public agency delay compliance with the ADA and Section 504 on alteration projects through a systematic approach to schedule projects? No. All pedestrian access upgrades within the scope of the project must occur at the same time as the alteration. Kinney v.Yerusalim, 9 F.3d 1067 (3d Cir. 1993), cert.denied, 511 U.S. 1033(1994). (9-12-06) Elements of Accessible Design 29. What are the elements of an accessible design? Public agencies have the choice of whether to follow the standards in the ADA Accessibility Guidelines (ADAAG)or the Uniform Federal Accessibility Standards(UFAS). 28 CFR§35.151(c); (appendix A to 28 CFR Part 36). FHWA encourages public agencies to use ADAAG. Under the ADAAG standards, an accessible design to a highway,street, or walkway includes accessible sidewalks and curb ramps with detectable warnings.28 CFR§35.151(c)and(a) (curb ramps),ADAAG 4.3-4.5(accessible routes), 4.7(curb ramps with detectable warnings), 4.29 (detectable warnings). Continuously maintained sidewalks are required by the case of Barden v.City of Sacramento, 292 F.3d 1073(9th Cir.2002), cart.denied, 123 S.Ct.2639 (2003). Accessible pedestrian signals and signs must be considered,with a reasonable and consistent plan to facilitate safe street crossings. 28 CFR§35.151(c);23 U.S.C.§217(g)(2). (9-12-06) Funding 30. What sources of funding may be used to comply with ADA and Section 504 requirements? Federal Funding Opportunities for Pedestrian Projects and Programs ACTIVITY NH ST HSI RH I T CMA RT FT Tr B 40 PL TCS FL BY SRT S P P C E Q P A E RI 2 A P H W S Pedestrian plan Paved ishoulders Shared-use « « « path/trail DBENOU 36108 Page 11 of 27 Recreation « « al trail Spot improveme nt program i Maps • w * w w « TraiVhighw ay « * « w « « « « w intersection Sidewalks, new or e « * • w w w « « « « « « retrofit Crosswalks.. l , new or w w w • « « w w w « « I w retrofit I { Signal improveme nts Curt?CUtS « w « w « « w w { and ramps Traffic « * « « calming Safety brochure/b ook Training NHS National Highway System TrE Transit Enhancements STP Surface Transportation Program BRI Bridge(HBRRP) HSIP Highway Safety Improvement 402 State and Community Traffic Safety Program Program RHC Railway-Highway Crossing Program PLA State/Metropolitan Planning Funds DBE/MOU 36/08 Page 12 of 27 TE Transportation Enhancement Activities TCSP Transportation and Community and System Preservation Program CMAQ Congestion Mitigation/Air Quality FLH Federal Lands Highways Program Program RTP Recreational Trails Program BYW Scenic Byways FTA Federal Transit Capital, Urban & SRTS Safe Routes to School Rural Funds 32. Each program has its own specific requirements and provisions. Further details on these sources of funding may be found in the following memo:Flexible Funding for Highways and Transit and Funding for Bicycle &Pedestrian Programs, February 6, 2006, at www.fhwa.dot.aov/heg/flexfund.htm.(9-12-06) Maintenance 31. What obligation does a public agency have regarding snow removal in its walkways? A public agency must maintain its walkways in an accessible condition, with only isolated or temporary interruptions in accessibility. 28 CFR§35.133. Part of this maintenance obligation includes reasonable snow removal efforts. (9-12-06) 32. What day-to-day maintenance is a public agency responsible for under the ADA? As part of maintenance operations, public agencies'standards and practices must ensure that the day-today operations keep the path of travel on pedestrian facilities open and usable for persons with disabilities, throughout the year.This includes snow removal, as noted above, as well as debris removal, maintenance of accessible pedestrian walkways in work zones,and correction of other disruptions.ADAAG 4.1.1(4). Identified accessibility needs should be noted and incorporated into the transition plan. (9-12-06) Criteria 33. What accessibility training is available? FHWA has the following training courses available: 1. National Highway Institute: Pedestrian Facility Design, Course Number 142046. See www.nhi.fhwa.dot.aov/training/brows catalog.aspx, and search for Course 142045. 2. Association of Pedestrian and Bicycle Professionals/FHWA: Designing Pedestrian Facilities for Accessibility. See www.apbp.org or contact:Judy Paul at 609-249-0020. 3. Resource Center Civil Rights Team: Designing Pedestrian Facilities for Accessibility. Contact: Deborah Johnson at 410-962-0089. 34. Where is information on the criteria to be used in developing accessible facilities? The following list of documents contains resources from several agencies and organizations US Access Board: The Access Board is the Federal agency responsible for developing ADA design standards.The following publications on accessible pedestrian design are available on the Board's Web site at www.access-board.gov: o Accessibility Guidelines(ADAAG) o Notice of Availability of Draft Public Rights-of-Way Guidelines o Accessibility Guidelines Accessible Public Rights-of-Way Design Guide o Pedestrian Access to Roundabouts o Detectable Warnings: Synthesis of US and International Practice o Accessible Pedestrian Signals o Advisory Committee Report: Building a True Community o Accessible Public Rights-of-Way DBENOU 36/09 Page 13 of 27 o Interfacing Accessible Pedestrian Signals and Traffic Signal o Controllers Call 1-800-872-2253, 1-800-993-2822(TDD)to order the US Access Board Video,Accessible Sidewalks: Design Issues for Pedestrians with Disabilities o Program 1: Pedestrians who use wheelchairs o Program 2: Pedestrians who have ambulatory Impairments o Program 3: Pedestrians who have low vision o Program 4: Pedestrians who are blind The Federal Highway Administration: Pedestrian documents and reports are available at www.fhwa.dot.gov/environment/bikeped/gubl!cations.htm.A bicycle and pedestrian publications order form is at www.fhwa.dot.gov/environment/bikeped/0rder.htm. Research and best practices design publications on pedestrian accessibility: o Designing Sidewalks and Trails for Access, Part 1, A Review of Existing Guidelines, www.fhwa.dot.ciov/environment/sidewalks/(electronic formats only: hard copies out of print). o Designing Sidewalks and Trails for Access, Part 11, Best Practices Guide, www.fhwa.dot.gov/environmenttsidewalk2/(electronic formats only: hard copies out of print, HTML version incorporates all the changes listed in the errata sheet: www.fhwa.dot.gov/environmenttbiker)ed/errata.htm). o Design Guidance Accommodating Bicycle and Pedestrian Travel: o A Recommended Approach,A DOT Policy Statement on Integrating Bicycling and Walking into Transportation Infrastructure. o Manual on Uniform Traffic Control Devices(MUTCD) provides the standards for traffic control devices and includes guidance on Accessible Pedestrian Signals, Chapter 4E. and Temporary Traffic Control Elements, Chapter 6D.The MUTCD is available at http://mutcd.fhwa.dot.gov. a Detectable Warnings Memorandum(July 30, 2004). o Detectable Warnings Memorandum(May 6,2002): FHWA and the US Access Board encourage the use of the latest recommended design for truncated domes. Accessible Pedestrian Signals o Synthesis and Guide to Best Practices Web site-this Web site provides overall information on installation criteria and design considerations. o Synthesis and Guide to Best Practices Article-this article provides the latest recommended technical specifications for installing accessible pedestrian signals. o FHWA Pedestrian and Bicycle Safety-includes pedestrian and bicycle safety resources. http://safety.fhwa.dot.gov/ped bike/oed/index.htm. o FHWA Pedestrian and Bicycle Safety Research-provides information on issues and research related to improving pedestrian and bicyclist safety.www.tfhrc.gov/safety/pedbike/index.htm. Other DOT Web sites o U.S. Department of Transportation Accessibility Web site-The Department is committed to building a transportation system that provides access for all Americans. See www.dot.gov/citizen services/disability/disabilitv.html. o Bureau of Transportation Statistics(BTS), Freedom to Travel, DBE/MOU 36/08 Page 14 of 27 (www.bts.gov/publications/freedom to travel/), a report on the travel issues for people who have disabilities. Institute of Transportation Engineers o Alternative Treatments for At-Grade Pedestrian Crossings(an informational report which documents studies on crosswalks and warrants used by various entities). o ITE's Web site,www.ite.org/accessible/, has information on accessible intersection design, Electronic Toolbox for Making Intersections More Accessible for Pedestrians Who are Blind or Visually Impaired Informational Web sites o Accessible Design for the Blind: information and research on making travel safer and accessible for pedestrians with disabilities, www.accessforblind.org. o The Pedestrian/Bicycle Information Center(sponsored by FHWA): • www.walking nfo,org • www.bicvclinginfo.org . Definitions Accessible. Describes a site, building, facility, or portion thereof that complies with the ADA Accessibility Guidelines. (ADAAG 3.5) Accessible Route. A continuous unobstructed path connecting all accessible elements and spaces of a building or facility. Interior accessible routes may include corridors, floors, ramps, elevators, lifts, and clear floor space at fixtures. Exterior accessible routes may include parking access aisles, curb ramps, crosswalks at vehicular ways,walks,ramps,and lifts. (ADAAG 3.5) Accessible Space. Space that complies with the ADAAG. (ADAAG 3.5) Alteration. An alteration is a change to a building or facility that affects or could affect the usability of the building or facility or part thereof.Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, resurfacing of circulation paths or vehicular ways, changes or rearrangement of the structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. (ADAAG 3.5) Further, each facility or part of a facility altered by, on behalf of,or for the use of, a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992. (28 CFR §35.151(b) Circulation Path. An exterior or interior way of passage from one place to another for pedestrians, including, but not limited to, walks, hallways, courtyards,stairways, and stair landings. (ADAAG 3.5) Designated agency. The Federal agency designated to oversee compliance activities for particular components of State and local governments. (28 CFR§35.104) Detectable Warning. A standardized surface feature built in or applied to walking surfaces or other elements to warn visually DBE MOU 36/08 Page 15 of 27 impaired people of hazards on a circulation path. (ADAAG 3.5) Discrimination. Denying handicapped persons the opportunity to participate in or benefit from any program or activity. (28 CFR§36.149) Facility. All or any portion of buildings, structures, site improvements, complexes, equipment, roads,walks, passageways, parking lots, or other real or personal property located on a site. (28 CFR§35.104; ADAAG 3.5) Maximum Extent Feasible. In alteration projects, an ADA-required accessibility improvement must be Installed to the maximum extent feasible;that is, to the maximum extent technically,or physically, feasible. (ADAAG 4.1.6(1)0) Public Entity. (1)Any State or local government; (2)Any department, agency, special purpose district, or other instrumentality of a State or States or local government. (42 U.S.C. §12131) Public Facility. A facility or portion of a facility constructed by, on behalf of, or for the use of a public entity subject to title II of the ADA and 28 CFR Part 35 or 49 CFR§§37.41, 37.43. (28 CFR §35.104) Public Use. Describes interior or exterior rooms or spaces that are made available to the general public. Public use may be provided at a building or facility that is privately or publicly owned. (ADAAG 3.5) Undue Burden. In determining whether financial and administrative burdens are undue in making decisions program-wide in the transition plan, a public agency must consider all of that public agency's resources available for use in the funding and operation of the service, program,or activity. (29 CFR Part 35,App. A, discussion of §35.150, ¶6) This page last modified on May 13,2008 FHWA Home I Civil Rights is Home I Feedback © FHWA United States Department of Transportation- Federal Highway Administration DBENOU 36108 Page 16 of 27 Attachment B SPECIAL PROVISION 000---461 Disadvantaged Business Enterprise in Federal-Aid Construction 1. Description. The purpose of this Special Provision is to carry out the U. S. Department of Transportation's (DOT) policy of ensuring nondiscrimination in the award and administration of DOT assisted contracts and creating a level playing field on which firms owned and controlled by individuals who are determined to be socially and economically disadvantaged can compete fairly for DOT assisted contracts. If the Disadvantaged Business Enterprise (DBE) goal is greater than zero, Article A, "Disadvantaged Business Enterprise in Federal-Aid Construction", of this Special Provision shall apply to this contract. If there is no DBE goal, Article B, "Race-Neutral DBE Participation", of this Special Provision shall apply to this contract. The percentage goal for DBE participation in the work to be performed under this contract will be shown on the proposal. A. Article A. Disadvantaged Business Enterprise in Federal-Aid Construction. 1. Policy. It is the policy of the DOT and the Texas Department of Transportation (henceforth the"Department")that DBEs,as defined in 49 CFR Part 26, Subpart A and the Department's DBE Program, shall have the opportunity to participate in the performance of contracts financed in whole or in part with Federal funds. The DBE requirements of 49 CFR Part 26, and the Department's DBE Program, apply to this contract as follows: a. The Contractor will solicit DBEs through reasonable and available means,as defined in 49 CFR Part 26,Appendix A and the Department's DBE Program, or show a good faith effort to meet the DBE goal for this contract. b. The Contractor,subrecipient or subcontractor shall not discriminate on the basis of race,color,national origin,or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted contracts.Failure by the contractor to carry out these requirements is a material breach of this contract,which may result in the termination of this contract or such other remedy as the recipient deems appropriate. c. The requirements of this Special Provision shall be physically included in any subcontract. d. By signing the contract proposal,the Bidder is certifying that the DBE goal as stated in the proposal will be met by obtaining commitments from eligible DBEs or that the Bidder will provide acceptable evidence of good faith effort to meet the commitment.The Department will determine the adequacy of a Contractor's efforts to meet the contract goal,within 10 business days, excluding national holidays,from receipt of the information outlined in this Special Provision under Section 1.A.3,"Contractor's Responsibilities." If the DBE/MOU 36109 Page 17 of 27 l requirements of Section 1.A.3 are met,the conditional situation will be removed and the contract will be forwarded to the Contractor for execution. 2. Definitions. a. "Department"means the Texas Department of Transportation. b. "DOT" means the U.S.Department of Transportation,including the Office of the Secretary,the Federal Highway Administration(FHWA),the Federal Transit Administration(FTA),and the Federal Aviation Administration (FAA). C. "Federal-Aid Contract'is any contract between the Texas Department of Transportation and a Contractor which is paid for in whole or in part with DOT financial assistance. d. "DBE Joint Venture" means an association of a DBE firm and 1 or more other firm(s)to carry out a single business enterprise for profit for which purpose they combine their property,capital,efforts,skills and knowledge,and in which the DBE is responsible for a distinct,clearly defined portion of the work of the contract and whose share in the capital'contribution,control,management, risks,and profits of the joint venture are commensurate with its ownership interest. e. "Disadvantaged Business Enterprise"or"DBE"means a firm certified through the Texas Unified Certification Program in accordance with 44 CFR Part 26. f. "Good Faith Effort" means efforts to achieve a DBE goal or other requirement of this Special Provision which,by their scope,intensity,and appropriateness to the objective,can reasonably be expected to fulfill the program requirement. g. "Manufacturer"is a firm that operates or maintains a factory or establishment that produces,on the premises,the materials,supplies,articles,or equipment required under the contract and of the general character described by the specifications." h. "Regular Dealer"is a firm that owns,operates,or maintains a store, warehouse,or other establishment in which the materials,supplies,articles or equipment of the general character described by the specifications and required under the contract are bought,kept in stock,and regularly sold or leased to the public in the usual course of business. To be a regular dealer,the firm must be an established,regular business that engages in,as its principal business and under its own name,the purchase and sale or lease of the products in question. A regular dealer in such bulk items as steel,cement,gravel,stone,and petroleum products need not keep such products in stock if it owns and operates distribution equipment for the products. Any supplementing of regular dealers own distribution equipment shall be by a long-term lease agreement and not on an ad hoc or contract-by-contract basis. Brokers, packagers,manufacturers' representatives,or other persons who arrange or expedite transactions shall not be regarded as a regular dealer. I. "Broker"is an intermediary or middleman that does not take possession of a commodity or act as a regular dealer selling to the public. DBE/MOU 36/08 Page 1 S of 27 j. "Race-neutral DBE Participation"means any participation by a DBE through customary competitive procurement procedures. k. "Race-conscious"means a measure or program that is focused specifically on assisting only DBEs,including women-owned businesses. 1. "Texas Unified Certification Program"or°`TUCP"provides one-stop shopping to applicants for certification,such that applicants are required to apply only once for a DBE certification that will be honored by all recipients of federal funds in the state. The TUCP by Memorandum of Agreement established six member entities to serve as certifying agents for Texas in specified regions. 3. Contractor's Responsibilities. These requirements must be. satisfied by the Contractor. a. After conditional award of the contract,the Contractor shall submit a completed Form No.SMS.4901,"DBE Commitment Agreement"for each DBE he/she intends to use to satisfy the DBE goal or a good faith effort to explain why the goal could not be reached,so as to arrive in the Department's Business Opportunity Programs(BOP)Office in Austin,Texas not later than 5:00 p.m. on the 10'a business day,excluding national holidays,after the conditional award of the contract. When requested,additional time,not to exceed 7 business days,excluding national holidays,may be granted based on documentation submitted by the Contractor. b. DBE prime Contractors may receive credit toward the DBE goal for work performed by his/her own forces and work subcontracted to DBEs.A DBE prime must make a good faith effort to meet the goals.In the event a DBE prime subcontracts to a non-DBE,that information must be reported on Form No.SMS.4902. c. A Contractor who cannot meet the contract goal,in whole or in part,shall make adequate good faith efforts to obtain DBE participation as so stated and defined in 49 CFR Part 26,Appendix A.The following is a list of the types of action that may be considered as good faith efforts.It is not intended to be a mandatory checklist,nor is it intended to be exclusive or exhaustive. Other factors or types of efforts may be relevant in appropriate cases. 0 Soliciting through all reasonable and available means (e.g. attendance at prebid meetings, advertising,and/or written notices)the interest of all certified DBEs who have the capability to perform the work of the contract. The solicitation must be done within sufficient time to allow the DBEs to respond to it. Appropriate steps must be taken to follow up initial solicitations to determine,with certainty,if the DBEs are interested. • Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals will be achieved.This includes,where appropriate,breaking out contract work items into economically feasible units to facilitate DBE participation,even when the Contractor might otherwise prefer to perform the work items with its own forces. DBFJMOU 36/09 Page 19 of 27 • Providing interested DBEs with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicitation. • Negotiating in good faith with interested DBEs to make a portion of the work available to DBE subcontractors and suppliers and select those portions of the work or material needs consistent with the available DBE subcontractors and suppliers, so as to facilitate DBE participation. Evidence of such negotiations includes the names, addresses,and telephone numbers of DBEs that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting;and evidence as to why additional agreements could not be reached for DBEs to perform the work. • A Bidder using good business judgment would consider a number of factors in negotiating with subcontractors, including DBE subcontractors, and would take a firm price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional cost involved in finding and using DBEs is not in itself sufficient reason for a bidders failure to meet the Contract DBE goal as long as such cost are reasonable. Also,the ability or desire of the Contractor to perform the work of the Contract with its own organization does not relieve the Bidder of the responsibility to make good faith effort. Contractors are not,however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable. • Not rejecting DBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities. The Contractor's standing within its industry,membership in specific groups, organizations, or associations and political or social affiliations(for example union vs. non-union employee status)are not legitimate cause for the rejection or non-solicitation of bids and the Contractors efforts to meet the project goal. • Making efforts to assist interested DBEs in obtaining bonding, lines of credit,or insurance as required by the recipient or Contractor. • Making efforts to assist interested DBEs in obtaining necessary equipment, supplies,materials,or related assistance or services. • Effectively using the services of available minority/women community organizations;minority/women Contractors' groups; local, state, and Federal minority/women business assistance offices; and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement of DBEs. • If the Program Manager of the BOP Office determines that the Contractor has failed to meet the good faith effort requirements,the Contractor will be given an opportunity for reconsideration by the Director of the BOP Office. d. Should the bidder to whom the contract is conditionally awarded refuse, neglect or fail to meet the DBE goal or comply with good faith effort DBENOU 36/09 Page 20 of 27 requirements,the proposal guaranty filed with the bid shall become the property of the state,not as a penalty,but as liquidated damages to the Department. e. The preceding information shall be submitted directly to the Business Opportunity Programs Office,Texas Department of Transportation, 125 E. 11th.Street,Austin,Texas 78701-2483. f. The Contractor shall not terminate for convenience a DBE subcontractor named in the commitment submitted under Section 1.A.3.a.of this Special Provision.Prior to terminating or removing a DBE subcontractor named in the commitment,the Contractor must have a written consent of the Department. g. The Contractor shall also make a good faith effort to replace a DBE subcontractor that is unable to perform successfully with another DBE,to the extent needed to meet the contract goal.The Contractor shall submit a completed Form No.4901,"DBE Commitment Agreement,"for the substitute DBE firm(s).Any substitution of DBEs shall be subject to approval by the Department.Prior to approving the substitution,the Department will request a statement from the DBE concerning it being replaced. h. The Contractor shall designate a DBE liaison officer who will administer the Contractor's DBE program and who will be responsible for maintenance of records of efforts and contacts made to subcontract with DBEs. i. Contractors are encouraged to investigate the services offered by banks owned and controlled by disadvantaged individuals and to make use of these banks where feasible. 4. Eligibility of DBEs. a. The member entities of the TUCP certify the eligibility of DBEs and DBE joint ventures to perform DBE subcontract work on DOT financially assisted contracts. b. The Department maintains the Texas Unified Certification Program DBE Directory containing the names of firms that have been certified to be eligible to participate as DBE's on DOT financially assisted contracts.This Directory is available from the Department's BOP Office.An update of the Directory can be found on the Internet at http://www.dot.state.tx.us/business/tucoinfo.htm. c. Only DBE firms certified at the time commitments are submitted are eligible to be used in the information furnished by the Contractor as required under Section 1.A.3.a. and 3.g.above.For purposes of the DBE goal on this project, DBEs will only be allowed to perform work in the categories of work for which they are certified. d. Only DBE firms certified at the time of execution of a contract/subcontract/purchase order,are eligible for DBE goal participation. S. Determination of DBE Participation.When a DBE participates in a contract, only the values of the work actually performed by the DBE, as referenced below, shall be counted by the prime contractor toward DBE goals: DBENOU 36/08 Page 21 of 27 a. The total amount paid to the DBE for work performed with his/her own forces is counted toward the DBE goal. When a DBE subcontracts part of the work of its contract to another firm,the value of the subcontracted work may be counted toward DBE goals only if the subcontractor is itself a DBE. Work that a DBE subcontracts to a non-DBE firm does not count toward DBE goals. b. A Contractor may count toward its DBE goal a portion of the total value of the contract amount paid to a DBE joint venture equal to the distinct, clearly defined portion of the work of the contract performed by the DBE. (1) A Contractor may count toward its DBE goal only expenditures to DBEs that perform a commercially useful function(CUF) in the work of a contract or purchase order. A DBE is considered to perform a CUF when it is responsible for execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF,the DBE must also be responsible, with respect to materials and supplies used on the contract,for negotiating price, determining quality and quantity, ordering the material, and installing(where applicable) and paying for the material itself. In accordance with 49 CFR Part 26,Appendix A,guidance concerning Good Faith Efforts,contractors may make efforts to assist interested DBEs in obtaining necessary equipment,supplies,materials,or related assistance or services.Contractors may not however,negotiate the price of materials or supplies used on the contract by the DBE,nor may they determine quality and quantity,order the materials themselves, nor install the materials(where applicable),or pay for the material themselves. Contractors however,may share the quotations they receive from the material supplier with the DBE firm,so that the DBE firm may negotiate a reasonable price with the material supplier. In all cases,prime or other subcontractor assistance will not be credited toward the DBE goal.' (2) A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of DBE participation. Consistent with industry practices and the DOT/Department's DBE program, a DBE subcontractor may enter into second-tier subcontracts, amounting up to 70%of their contract. Work subcontracted to a non- DBE does not count towards DBE goals. If a DBE does not perform or exercise responsibility for at least 30%of the total cost of its contract with its own work force, or the DBE subcontracts a greater portion of the work of a contract than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that the DBE is not performing a CUF (3) A DBE trucking firm (including an owner operator who is certified as a DBE is considered to be performing a CUF when the DBE is responsible for the management and supervision of the entire trucking operation on a particular contract and the DBE itself owns and operates DBE/MOU 36/08 Page 22 of 27 at least 1 fully licensed,insured,and operational truck used on the contract. (a) The Contractor receives credit for the total value of the transportation services the DBE provides on a contract using trucks it owns, insures, and operates using drivers it employs. (b) The DBE may lease trucks from another DBE firm, including an owner operator who is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the Contract. (c) The DBE may also lease trucks from a non-DBE f rm, including from an owner-operator. The DBE who leases trucks from a non- DBE is entitled to credit for the total value of transportation services provided by non-DBE lessees not to exceed the value of transportation services provided by the DBE-owned trucks on the contract. Additional participation by non-DBE lessees receive credit only for the fee or commission it receives as result of the lease arrangement (d) A lease must indicate that the DBE has exclusive use of and control over the trucks giving the DBE absolute priority for use of the leased trucks. Leased trucks must display the name and identification number of the DBE. (4) When a DBE is presumed not to be performing a CUF the DBE may present evidence to rebut this presumption. c. A Contractor may count toward its DBE goals expenditures for materials and supplies obtained from a DBE manufacturer,provided that the DBE assumes the actual and contractual responsibility for the materials and supplies.Count expenditures with DBEs for materials or supplies toward DBE goals as provided in the following: (1) If the materials or supplies are obtained from a DBE manufacturer,count 100%of the cost of the materials or supplies toward DBE goals.(Definition of a DBE manufacturer found at IA.c.(I)of this provision.) For purposes of this Section(1.A.c.(1)),a manufacturer is a firm that operates or maintains a factory or establishment that produces,on the premises,the materials, supplies,articles,or equipment required under the contract and of the general character described by the specifications. (2) If the materials or supplies are purchased from a DBE regular dealer,count 60%of the cost of the materials or supplies toward DBE goals. For purposes of this Section(1.A.5.c.(2)),a regular dealer is a firm that owns,operates, or maintains a store,warehouse,or other establishment in which the materials,supplies, articles or equipment of the general character described by the specifications and required under the contract are bought,kept in stock,and regularly sold or leased to the DBE/MOU 36109 Pop 23 of 27 public in the usual course of business: (A) To be a regular dealer,the firm must be an established,regular business that engages,as its principal business and under its own name,in the purchase and sale or lease of the products in question. (B) A person may be a regular dealer in such bulk items as petroleum products,steel, cement,gravel,stone or asphalt without owning,operating,or maintaining a place of business as provided in the first paragraph under Section 1.A.5.c.(2),if the person both owns and operates distribution equipment for the products.Any supplementing of regular dealers' own distribution equipment shall be by a long- term lease agreement and not on an ad hoc or contract-by-contract basis. (C) Packagers,brokers,manufacturers'representatives,or other persons who arrange or expedite transactions are not regular dealers within the meaning of Section 1.A.5.c.(2). (3) With respect to materials or supplies purchased from DBE which is neither a manufacturer nor a regular dealer,count the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies,or fees or transportation charges for the delivery of materials or supplies required on a job site, toward DBE goals,provided you determine the fees to be reasonable and not excessive as compared with fees customarily allowed for similar services.Do not count any portion of the cost of the materials and supplies themselves toward DBE goals. (4) Count the entire amount of fees or commissions charged by a DBE firm for providing a bona fide service,such as professional,technical,consultant or managerial services,or for providing bonds or insurance specifically required for the performance of a DOT- assisted contract,toward DBE goals,provided you determine the fee to be reasonable and not excessive as compared with fees customarily allowed for similar services. d. If the Contractor chooses to assist a DBE firm,other than a manufacturing material supplier or regular dealer,and the DBE firm accepts tbe_assistance, the Contractor may act solely as a guarantor by use of a two-party check for payment of materials to be used on the project by the DBE. The material supplier must invoice the DBE who will present the invoice to the Contractor. The Contractor may issue a joint check to the DBE and the material supplier and the DBE firm must issue the remittance to the material supplier.No funds shall go directly from the Contractor to the material supplier.The DBE firm may accept or reject this joint checking arrangement. The Contractor must obtain approval from the Department prior to implementing the use of joint check arrangements with the DBE.Submit to the Department,Joint Check Approval Form 2178 for requesting approval. Provide copies of cancelled joint checks upon request.No DBE goal credit will be allowed for the cost of DBE materials that are paid by the Contractor directly to the material supplier. e. No DBE goal credit will be allowed for supplies and equipment the DBE subcontractor leases from the contractor or Its affiliates. E No DBE goal credit will be allowed for the period of time determined by the Department that the DBE was not performing a CUF. The denial period of time may occur before or after a determination has been made by the department.In case of the denial of credit for non-performance of a CUF of a DBE/MOU 36/08 Page 24 of27 DBE,the Contractor will be required to provide a substitute DBE to meet the contract goal or provide an adequate good faith effort when applicable. 6. Records and Reports. a. The Contractor shall submit monthly reports,after work begins,on DBE payments to meet the DBE goal and for DBE or HUB race-neutral participation.Report payments made to non-DBE HUBS.The monthly report is to be sent to the Area Engineer.These reports will be due within 15 days after the end of a calendar month.These reports will be required until all DBE subcontracting or material supply activity is completed.Form No.SMS.4903, "DBE or HUB Progress Report,"is to be used for monthly reporting.Form No.SMS.4904,"DBE or HUB Final Report,"is to be used as a final summary of DBE payments submitted upon completion of the project.The original final report must be submitted to the Business Opportunity Programs Office and a copy must be submitted to the Area Engineer.These forms may be obtained from the Department or may be reproduced by the Contractor.The Department may verify the amounts being reported as paid to DBEs by requesting copies of cancelled checks paid to DBEs on a random basis. Cancelled checks and invoices should reference the Department's project number. b. DBE subcontractors and/or material suppliers should be identified on the monthly report by Vendor Number,name,and the amount of actual payment made to each during the monthly period.Negative reports are required when no activity has occurred in a monthly period. c. All such records must be retained for a period of 3 years following completion of the contract work,and shall be available at reasonable times and places for inspection by authorized representatives of the Department or the DOT. Provide copies of subcontracts or agreements and other documentation upon request. d. Prior to receiving final payment,the Contractor shall submit Form SMS.4904, "DBE or HUB Final Report".If the DBE goal requirement is not met, documentation supporting Good Faith Efforts,as outlined in Section 1.A.3.c. of this Special Provision,must be submitted with the"DBE or HUB Final Report." e. Provide a certification of prompt payment,the Prompt Payment Certification Form 2177,to certify that all subcontractors and suppliers were paid from the previous months payments and retainage was released for those whose work is complete. Submit the completed form each month and the month following the month when final acceptance occurred at the end of the project. 7. Compliance of Contractor.To ensure that DBE requirements of this DOT assisted contract are complied with, the Department will monitor the Contractor's efforts to involve DBEs during the performance of this contract. This will be accomplished by a review of monthly reports submitted to the Area Engineer by the Contractor indicating his progress in achieving the DBE contract goal, and by compliance reviews conducted on the project site by the Department. The Contractor shall receive credit toward the DBE goal based on actual payments to the DBE subcontractor. The Contractor shall notify the Area Engineer if he/she withholds or reduces payment to any DBE subcontractor.The Contractor shall submit DBE/MOU 36/08 Page 25 of 27 an affidavit detailing the DBE subcontract payments prior to receiving final payment for the contract. Contractors' requests for substitutions of DBE subcontractors shall be accompanied by a detailed explanation which should substantiate the need for a substitution. The Contractor may not be allowed to count work on those items being substituted toward the DBE goal prior to approval of the substitution from the Department. The prime Contractor is prohibited from providing work crews and equipment to DBEs. DBE Goal credit for the DBE subcontractors leasing of equipment or purchasing of supplies from the prime contractor or its affiliates is not allowed. When a DBE subcontractor,named in the commitment under Section 1.A.3.a. of this Special Provision, is terminated or fails to complete its work on the contract for any reason, the prime contractor is required to make good faith efforts to find another DBE subcontractor to substitute for the original DBE. These good faith efforts shall be directed at finding another DBE to perform at least the same amount of work under the contract as the DBE that was terminated,to the extent needed to meet the contract goal. A Contractor's failure to comply with the requirements of this Special Provision shall constitute a material breach of this contract. In such a case,the Department reserves the right to terminate the contract;to deduct the amount of DBE goal not accomplished by DBEs from the money due or to become due the Contractor, or to secure a refund, not as a penalty but as liquidated damages to the Department or such other remedy or remedies as the Department deems appropriate. B. Article B. Race-Neutral Disadvantaged Business Enterprise Participation. It Is the policy of the DOT that Disadvantaged Business Enterprises(DBE)as defined In 49 CFR Part 26 Subpart A,be given the opportunity to compete fairly for contracts and subcontracts financed In whole or In part with Federal funds and that a maximum feasible portion of the Department's overall DBE goal be met using race-neutral means. Consequently,If there Is no DBE goal, the DBE requirements of 49 CFR Part 26, apply to this contract as follows: The Contractor will offer DBEs as defined in 49 CFR Part 26, Subpart A,the opportunity to compete fairly for contracts and subcontractors financed in whole or in part with Federal funds. Race-Neutral DBE and non-DBE HUB participation on projects with no DBE goal shall be reported on Form No. SMS.4903,"DBE or HUB Progress Report" and submitted to the Area Engineer each month and at project completion. Payments to DBEs reported on Form SMS.4903 are subject to the requirements of Section 1.A.5,"Determination of DBE Participation." The Contractor,subrecipient or subcontractor shall not discriminate on the basis of race,color,national origin,or sex in the performance of this contract.The Contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT-assisted contracts.Failure by the contractor to carry out these requirements is a material breach of this contract,which may result in the termination of this contract or such other remedy as the recipient deems appropriate. DBE/MOU 36/08 Page 26 of 27 Attachment C i 21LIS VW summaoad Banat ndpl• s*b=d 6MUSatoea maw W Each firiaaeial assirunce agree. main You sign with a EM apessstft administration(or a prirnmy reciplert Must ttratuds the fblltrwft asaurancei The rodplant shall tat daftir"aw on the basis of rase,color.notlonal od#*or sees In s!u award Bud perfbrtram of any Wr as- elstad contract or In the adntudstratmn of Its 0M wns or the r"uirerm is or es CPR f�11.TM tsd%wt ahell take all me- "" WW rtt�soname, stop Naar u CYR part to amum nondlaerlmination In the award and adndnluratton of Wr anUv d contracts.The teslplant's DB$pnWam. as requtred by la CPR pact ti and as spaproved by COT,is by rafsrance In this ogreamsno Imptamentsnoa at thin program Is a Isgal ablijistion and Amur to Corry out Its term shall be treated as a violation of this aiinommt.Upon notill stion to the re- c1ptent of Its faltun to carry out its op• proved proram. the Department may Im• Von sanctkms as providid fos under part IS W may.in tp ate cotes.rtfsr Wneat• to roranfaresmmirit under Is U.I.C.tool ardr or the Prog=tt Freud Civil Rslnedles,let of 191 fit LLS.C.3101 et srqJ. (b) Each contmac ym sign with a contractor (and each subcontract the prime qwtiractor s with a aabcoon. tractor)must Include the following W suranco: The contractor. sub nelpient or eubcon, tractor shall not discriminate an the bests of rocs.color.national orlSM.or ape In the par. fortnsnce of this contract. The contractor shall out applicable requirenmrte of if CPR part in the sward and Wrairdstrotion of DOT-aesbted contracts. Failure by the contractor to carry out tlwa nquimnanta fe a material breach of this eeatreet.whteh nosy result in the teradnaston of tide am tract ar such other remedy as dw moipie ve deems appropriate. DBEIMOU W09 Page 27 of 27 ATTACHMENT D DBE Program Compliance Guidance for Local Government Agencies OVERVIEW: The DBE Program as authorized by 49 CFR, Part 26 ensures nondiscrimination in the award and administration of United States Department of Transportation _ contracts. The DBE Program applies to a Local Government Agency's highway contracts, funded In part or whole, from federal funds received through TxDOT and the Federal Highway Administration (FHWA)'. A Local Government Agency (LGA) may use TxDOT's DBE Program through a Memorandum Of Understanding (MOU). The MOU is the agreement that allows LGA's to use TxDOT's DBE Program and identifies the responsibility of each LGA as it pertains to DBE Program. DBE annual goals are established by the Business Opportunity Programs Office (BOP)for the department's DBE Federal-Aid Highway Construction Programs. Individual contract goals are established by LGA with Input from the BOP Office. The BOP Office is responsible for administering the department's DBE Program. The BOP office, in conjunction with the LGA, will be responsible for monitoring the DBE Program and ensuring compliance. In an effort to effectively monitor the DBE Program, the DBE Program Compliance Guidance has been created and implemented. The LGAs will play a vital role In ensuring proper administration and compliance with the DBE Program. GENERAL DBE PROGRAM PROCESS: Annually, BOP will develop an overall goal for DBE participation in projects receiving federal funds. The objective is to achieve as much of the goal through "race-neutral" means as practical. This means that DBEs will participate in projects in the routine course of business and a specific project goal will not be assigned. If sufficient DBE participation is not anticipated through race-neutral means, "race-conscious"provisions are implemented and individual projects goals are assigned based on the availability of DBE firms to perform work within the scope of the project. In Fiscal Year 2005 and 2006, approximately one-half of the overall goal was achieved by race-neutral means. The most current version of the DBE Special Provision is included in the bid documents of all federally funded projects. The Provision is divided into race- conscious and race-neutral sections. Race-neutral projects do not have a specific project goal while race-conscious projects will have a minimum goal to be achieved by the contractor to assure compliance with the terms of the contract. The goal will be a percentage of the contract amount and is listed in the bid documents. For projects with a goal, the contractor must submit a list of DBE firms the contractor commits to use to fulfill the goal as stated In the DBE Special Provisions. Once approved,this list forms the basis for project monitoring. The LGA monitors all federally funded projects that have DBE work to be counted toward meeting the annual goal. Monitoring is similar for race-neutral and race- conscious projects, but additional steps are required on race-conscious projects when the contractor does not meet the project goal or wants to substitute DBE - firms for those listed in the contractor's commitment. At the end of the project, actual DBE participation Is totaled and credited to the annual goal for both race-neutral and race-conscious projects. Monitoring throughout the project gives assurance that credit Is given for work accomplished in compliance with the specifications and statutes. DBE PROGRAM COMPLIANCE GUIDANCE: There are three key documents used in implementation and management of the DBE Program; the actual program as approved by FHWA, the current Special Provision to be included in all projects with federal funds, and a TxDOT Standard Operating Procedures Manual (SOP). This SOP contains the following Sections: A. DBE Certification Program B. Withdrawal, Denial, Surrender, Decertification and Appeal Program C. Goal Setting, Counting DBE Participation,and Data Reporting D. DBE Commitments, Good Faith Efforts, and Substitutions/Replacements E.Joint Ch eck Agreements F. Prompt Payment and Retainage Monitoring and Enforcement G. Commercially Useful Function Program Review H. DBE Third Party Challenges 2 i SECTION A: DBE CERTIFICATION PROGRAM SECTION B: WITHDRAWAL, DENIAL, DECERTIFICATION,AND APPEAL PROGRAM PROCEDURES General: In regards to Section A and B, the LGA does not have any responsibility regarding the DBE Certification Program as it relates to certification,withdrawal, denial, decertification and certification appeal procedures.As such, Section A and B are not part of the DBE Program Guidance for LGA. Local Government Agency Procedures: The BOP Office and other TUCP Certifying Agencies have primary responsibility for all DBE certification actions. The LGA does not have any direct responsibility but may be requested to provide information or assistance to BOP or other TUCP Certifying Agencies regarding DBEs that are working on LGA federally-funded projects. The LGA must be familiar with the TxDOT internet site www.dot.state.tx.us, TUCP Directory and use the information as appropriate for their monitoring activities. 3 SECTION C: GOAL SETTING, COUNTING DBE PARTICIPATION, AND DATA REPORTING General: BOP is responsible for developing TxDOT's annual goal for DBE participation in projects funded by FHWA. The annual goal is comprised of race- neutral and race-conscious participation. For race-conscious participation, the LGA will assign a DBE goal for appropriate projects. Work completed by a DBE will be counted toward the overall goal if the work is actually performed by the DBE (i.e. the DBE performs a "Commercially Useful Function" (CUF). CUF monitoring is discussed elsewhere in this document. By special provision, the contractor must maintain certain records and submit certain reports. The contractor's records must be made available to LGA, TxDOT and FHWA on request. The following reports are submitted to LGA: 1. DBE Program Commitment Agreement Form 2. DBE Monthly Project Report 3. DBE DBFJHUB Final Report 4. Prompt Payment Certification Local Government Agency Procedures: O Step 1 — Receive reports from the various sources and distribute as appropriate. The original of all reports should be kept with the official project records. O Step 2 —Verify the accuracy of DBE payments by comparing the DBE Monthly Progress Report to the Prompt Payment Certification. 13 Step 3 — Keep a running total of actual payments to DBE firms by entering information from DBE Monthly Project Report in subcontractors monitoring system. O Step 4 — Review the contractor's DBE DBE/HUB Final Report to ensure that DBE/SBE contract requirements have been satisfied. 4 SECTION D: DBE COMMITMENTS, GOOD FAITH EFFORTS, AND SUBSTITUTION REPLACEMENTS General: This Section does not apply to race-neutral projects. For projects with a specified percentage DBE goal, contractors make a commitment to meet the goal by signing the proposal and submitting a bid. Once the low bidder is determined and the contract is conditionally awarded, the contractor must submit a DBE Commitment Agreement Form or a Pre-Good Faith Effort Review. The DBE Commitment Agreement Form lists bid items and _ DBEs the contractor intends to use to fulfill the project DBE goal. The DBE Commitment Agreement Form is reviewed by the LGA to determine the appropriate DBE credit that will be allowed for each DBE. DBE Material Suppliers and Truckers have to provide the documentation at the time of commitment that supports the level of DBE credit that will be approved for each DBE. The contractor submits a Pre-Good Faith Effort Review if they believe they made every reasonable effort to do so but still cannot commit to meeting the goal. In either case, the form is submitted to the LGA for their action. During the life of the project, LGA monitors the contractor's progress toward meeting the goal. If it appears that the goal may not be achieved, the contractor must show that they made a Good Faith Effort (GFE)to meet the goal. if justified, the GFE is approved. The contractor may also request that a different firm be substituted for one named In the DBE Commitment Agreement Form. The BOP Office will conduct periodic reviews of the LGA's projects to ensure compliance with the DBE Program requirements. Local Government Agency Procedures: Contract award ❑ Step 1 — LGA receives appropriate submission from the contractor and renders final compliance determination. LGA will keep informed of any adverse issues encountered during their review and approval process. After all issues are resolved, LGA approves contractor's commitment, enters information into their subcontractor monitoring system, and notifies the prime, and the DBE of their approval. O Step 2—Contractor assures that a copy of DBE Commitment Agreement Form or Notification of Compliance Letter is transmitted to the project personnel for inclusion in the project records and for use in monitoring during construction. Post GFE Review ❑ Step 1 --Determine actual goal achievements at the end of the project by reviewing their subcontractor monitoring programs, the 5 final estimate, and the Contractor's DBFJHUB Final Report. if the contractor did not meet the specified DBE goal, start Post GFE review by having the project personnel send the contractor a Post Award GFE Information Request Letter. ❑ Step 2—Assist the project personnel as requested in analyzing the contractor's documentation of GFE. 0 Step 3— If the contractor's GFE Is deficient, notify the contractor in writing, giving the contractor an opportunity to appeal the determination and/or provide additional information. ❑ Step 4—Complete a Post-GFE Review Report and prepare final disposition. Provide the BOP Office with a copy of the final disposition. Substitutions/Replacements ❑ Step 1 —Review documentation associated with the contractor's request. o DBE Commitment Agreement for DBE to be substituted. Assure that the contractor provides all of the information requested. o Written justification from the contractor listing reasons the DBE is being substituted. ❑ Step 2—Verify accuracy of the contractor's documentation by discussing circumstances with the project personnel as necessary. ❑ Step 3—Request a written statement from the DBE acknowledging they are being replaced. Consider any additional information the DBE may offer. • Step 4—Determine whether the contractor is in compliance with the DBE special provision. ❑ Step S—Prepare a Substitution Form and send to the project personnel for approval. 6 SECTION E: JOINT CHECK AGREEMENTS General: The contractor may choose to assist a DBE firm by acting as a guarantor for payment of materials used by a DBE by the use of joint checks. To be eligible,the contractor must make joint checks available to all subcontractors and the DBE must agree to the arrangement. The contractor issues a joint.check to the DBE and the material supplier and the DBE must Issue the joint check to the material supplier. If approved by the LGA, this arrangement does not count against the DBE goal. Local Government Agency Procedures: 0 Step 1 —Project personnel receives DBE Joint Check Approval from the contractor. Assist the project personnel in determining compliance with the Special Provision as requested. Project personnel sends signed Approval to the contractor by letter with copies to the DBE. 13 Step 2—Compare the DBE Monthly Progress Report and Prompt Payment Certification Form for reasonable consistency. 13 Step 3—Request a copy of cancelled joint checks for the months the contractor issued a joint check to each DBE with an approved DBE Joint Check Approval. Review the joint checks to ensure that payment was processed through the DBE. 17 Step 4--if two consecutive reviews for the same DBE show no discrepancies, the LGA may reduce the frequency of requesting copies of cancelled joint checks. D Step 5—Submit compliance questions to BOP for assistance as necessary. 7 SECTION F: PROMPT PAYMENT AND RETAINAGE MONITORING AND ENFORCEMENT General: The contractor is paid for satisfactorily completed work every month through the monthly estimate process. This payment is for the work the contractor and all subcontractors perform. The contractor must pay subcontractors for the satisfactorily completed work within 10 days after the contractor receives payment for the subcontractors work from LGA. Retainage is an amount of money withheld to ensure that the contractor fulfills all _ contract requirements, including submitting all documents at the end of the project. Retainage normally ranges from 3%—5% of the amount paid and is not released until the final estimate is processed. It is common practice for the contractor to withhold retainage from their subcontractors. However, the contractor must release the total amount retained when the subcontractor satisfactorily completes all their work on the project. Depending on the scope of the subcontract, this may occur long before all work on the contract is finished. Local Government Agency Procedures: 0 Step 1 —The project personnel receives a monthly Prompt Payment Certification from the contractor before the end of the month following receipt of payment from the LGA. This certification is kept in the project records and will be used only for dispute resolution. O Step 2—Assist the project personnel as requested in the event a subcontractor alleges they did not receive prompt payment from the contractor. The project personnel must have the complaint in writing. O Step 3—During visits to the project site, randomly spot check whether certifications are received in the time specified. Take appropriate action If non-compliance Issues are discovered. 8 SECTION G: COMMERCIALLY USEFUL FUNCTION REVIEW PROGRAM General: Commercially Useful Function (CUF), is the term used to describe a DBE's independence from the contractor. Over-reliance on a contractor brings a DBE's CUF into question. To perform a CUF, the DBE must be responsible for performing, managing, and supervising the work under its contract. The DBE must also be responsible for negotiating prices for, ordering, installing, and paying for material used in its work. A contractor may only count the value of the work actually performed by a DBE toward the DBE goal. A DBE may enter into second-tier subcontracts, up to 70% of their contract. Work subcontracted to a non-DBE does not count towards the DBE goals. If the DBE does not perform or exercise responsibility for at least 30%of the total cost of their contract with their own work force, it will be presumed the DBE is not performing a CUF and none of the payments will be counted toward the contract goal. The DBE Special Provision contains a discussion of when the contractor can count work by a DBE toward the goal. Local Government Agency Procedures: ❑ Step 1 —For projects with a specked DBE goal, contact the project personnel to ensure there is a copy of the DBE Program Commitment Agreement Form on the project. ❑ Step 2—For all projects, ask the project personnel to forward a copy of all completed CUF On-Site Compliance Review Forms to the LGA. ❑ Step 3—Project personnel will conduct at least one CUF review with each DBE on the project. Their review Is documented using a CUF On-Site Compliance Review Form and should be performed as soon as practical after the DBE starts work on the project. ❑ Step 4—Periodically review the OBE Monthly Progress Report to assure that the the initial CUF review is conducted on the project in a timely manner. Contact the project personnel to discuss delays in receipt of CUF reviews. Provide assistance to the project personnel as requested and as work schedule allows. ❑ Step 6—Project personnel should observe DBE work as part of their normal inspection function. If the DBE's practices change after the initial CUF review, the project personnel should complete the CUF Project Site Review. ❑ Step 6 — Periodically visit the project site after CUF monitoring starts. Discuss project personnel responsibilities and answer any questions the project personnel poses. As time allows, conduct a CUF review with project personnel and document using the CUF Project Site Review form. Explain"red flags" to project personnel to enhance their understanding of CUF. 9 0 Step 7—Collect questions concerning CUF and submit to LGA with supporting documentation for their action. LGA will document their determination and will transmit the final determination to the contractor and the DBE. Forward to the project personnel for inclusion in the project records. BOP will conduct periodic reviews of projects to monitor the LGA's compliance with CUF requirements. 10 SECTION H: DBE THIRD PARTY CHALLENGES General: Anyone has the right to challenge the eligibility of a DBE firm. The challenge must be in writing and contain information to support the challenge. Responsibility for resolving the challenge lies with the TUCP certifying agency that initially certlfled the DBE's eligibility. Local Government Agency Procedures: ❑ Step 1 --Forward any third party challenges received by the LGA to BOP. BOP will be responsible for identifying the appropriate TUCP certifying agency that will handle the disposition of this challenge. 11 ATTACHMENT E ATTACHMENT E REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONSTRUCTION CONTRACTS Page related subcontracts of s1o,000 or more.) 1. General .................. . 1 it. Nondiscrimination ............................. 1 1.EgualEmploymantopportunity:Equal employment opporlu- III. Nonsegregated Facilities ......................... 3 nity(EEO)requirements not to discriminate and to lake affirmative IV. Payment of Predetermined Minimum Wage ......... 3 action to assure equal opportunity asset forth under laws,executive V. Statements and Payrolls ........... 5 orders,rules,regulations(28 CFR 35,20 CFR 1830 and 41 CFR 60) VI. Record of Materials.Supplies,and Labor ........... 5 and ciders of the Secretary of Labor as modified b the provisions V II. Subletting or AssienhV the Contract ............... 5 prescribed herein,and imposed pursuant to 23 U.S,C. 140 shall Vlll. Safety: Accident PPrevention ..................... 8 constitute the EEO and speci8a a native action standards for the IX. False Statements Concernlnp Highway Projects...... 8 contractor's project activities under We contract.The Equal Oppodu- X. Implementation of Clean Air Act and Federal npy Coaslrueitan Conlract Specifieaticrs set forth under 41 CFR 80- Water Pollution Control Act ...................... 8 4.3 and the provisions of the American Disabil►ties Act of 1990(42 XI. Certification Regarding Debarment.Suspension, U.S.C.12101 (eel.)sel forth under 28 CFR 35 and 20 CFR 1630 Inellpibllity,and Voluntary Exclusion .. .. . .. 8 are incorporated reference In this contract.In the execution of this XII. Cod?,cation Regarding Use of Contract Funds for contract,the contractor agrees to comply with the following minimum Lobbying .................................... a specific requtremani activities of EEO: ATTACHMENTS a. The contractor will work with the State highway agency (SHA)and the Federal Government In carryingq out EEO obligations A. Employment Preference for Appalachian Contracts and In their review of hlsfhar activities under the contract, (Included In Appalachian contracts only) b. The contractor will accept as his operating policy the 1. GENERAL following statement: 1. Those contract provisions shall apply to all walk performed on 'It Is the policy of this Company to assure that applicants are the contract by the contractor's own organization and with the employed,and that employees are treated during employment, assistance of workers under the contractor's Immediate suppertnlen- without regard to their race,religion,sex,color,national origin, dance and to all work performed on the contract by piecework.station age or disebldty. Such action shall Include: employment, work,or by subcontract. upgrading, demolion, or transfer; recruitment or recrullmanl advertising;layoff or termination;rates of pay or other forms of 2. Except as otherwise provided for in each section,the contractor compensation;and selection for training,including appronllco- shall insert In each subcontract all of the stipulations contained In ship,preapprenticeshlp,and/or on-the-job training." these Required Contract Provisions, and further require their inclusion in any lower tier subcontract or purchase order that may In 2. EEO Officer The contractor will des/ghale and make known turn be made. The Required Contract Provisions shall not be to the SHA contracting oNlcere an EEO Officer who will have the incorporated by reference in any case. The prime contractor shall be responsibility for and must be capable ofetteclively administering and responsible for Compliance by any subcontractor of lower tier promoling an active contractor program of EEO and who must be subcontractor with these Required Contract Provisions. assigned adequate authority and responsibility to do so. 3. A breach of any of the stipulations contained In these Required 3. Dissemination of Policy:All members of the contractor's staff Contract Provisions shall be sufficient grounds for Ierminatton of the who are authorized to hire, supervise, promote, and discharge contract, employees,orwho recommend such action.or who are substanliallyy Involved in such action,will be made fully cognizant of, and wit, 4. A breach of the following clauses of the Required Contract Implement.the contractor's EEO policy and contractual responsibill- Provisions may also be grounds for debarment as provided in 29 Iles to provide EEO In each grade and classification of employment. CFR 5.12: To ensure that the aboveagreamenlwTO be mat,the following actions will be taken as a minimum: Section 1,p aragraph 2; Section IV,paragraphs 1,2,3.4,and 7; e. Periodic meetings of supervisory and personnel office Section V.paragraphs 1 and 2a through 2g. employyees will be conducted before the start of work and then not less Nan than once every six manlhs,at which lime the contractor's 5.Olspuiea aristng out of the tabor standards provisions of Section EEO policy and Its Implementation will be reviewed and explained. IV(except paragraph 5)and Section V of those Required Conlract The meetings Willis conducted by the EEO Officer. Provisions shall not be subject to The general disputes clause of this contract. Such disputes shot be resolved to accordance with the b. All now supervisory or personnel office employees will be procedures of the U.S.Department of Labor(DOL)as set forth In 20 given alhorough indoctrination by the EEO Officer,covering all major CFR 5.9,and 7. Disputes within the moaning of thhls clause Include disputes between the contractor(erany Wits subcontractors)and the aspects of the contractor's EEO obligations within thirty days contracting agency,the DOL.of the contractor's employees or their following their reporting for duly wllh The contractor. ropy osontatwes. c. All personnel who are engaged in direct recruitment for the 0. Sotoctlon of Labor: During the performance of this contrail, project will be Instructed by the EEO Officer In The contractor's the contractor shall not: procedures for locating and hiring minority group employees. a.discriminate against labor from any other State.possession, d.Notices and poster$selling forth the contractor's EEO policy or lorrilory of the United States(except for employment In, for walbe placed in areas readily accessible to employees,applicants for Appalachian contracts,when applicable.as specified In Attachment employment and potential employees. A)•or e. The contractor's EEO policy and the Procedures to Imple- b. employ convict labor for any purpose within the limlts of the rnent such Policy will be brought to the attention of employees by Project uraoss it is labor performed by convicts who are on parole, means of meollails, employee handbooks• or other appropriato supervised release,or probation, means. It. NONDISCRIMINATION 4. Racruitment: When advertising for employees,the contractor wdl include in all advertisements for employees the noto0on: "An (Applicable to all Federal aid construction contracts and to air Equal Opportunity Employer."Ail such advortlsomentswill be placed Fenn F14WA•1273(Rev 3.94) nnp�r in publications having a large circulation among minority groups in the minority groups and women within the unions,and to effect reformis area from which the project work force would normally be derived. by such unions of minority and female employees. Actions by the contractor either directly or through a contractor's association acting a. The contractorwtil,unless precluded by a valid bargaining as agent will Include the procedures set forth below: agreament,conduct systematicand direct recruitment through public and private employee referral sources likely to yieldquatifiedminority a. The contractor will use best efforts to develop,In Coopers. group applicants. To moot this requirement. the contractor w%I lion with the unions,joint training programs aimed toward qualifying IdonUfy sources of potential minority group employees,and establish more minority group members and women for membership to the with such Identified sources procedures whereby minority group unions and Increasing the skills of minority group employees and appplicants may bereferredto the conlraclor for employment consider. women so that they may qualify far higher paying employment. atlon. b. The contractor will use best efforts to incorporate an EEO b.In the event the contractor has a valid bargaining agreement clause into each union agreement to the end that such union will be providing for exclusive hiring hall referrals,he Is expected to observe contractually bound to refer appilcan s without regard to their race. the provisionsoflhat agreement to the extent that the system permits color,religion,sex,nallenal origin,ape or disability. the contractor's compliance with EEO contract provisions.(The DOL ties held[hot where Impiemenlatten of such agreements have the c. The contractor Is to obtain information as to the referral affect of discriminating against minorities or women,or obitggates the practices and policies of the labor union except that to the extent contractor to do the some,such Implementation violates 6xectrllve, such Information is within the exclusive possession of the labor union - Order 11240.as amended.) and such labor union refuses to furnish such Information to the contractor,the contractor shall so cerll to the SHA and shall set c.The contractor will encowagohis present omployeos to refer forth what efforts have been made to obtain such information. minority group applicants for employment. Information and proce- dures with regard to referring minority group applicants wl9 be d. In the event the union Is unable to provide the contractor discussed with employees. with reasonable flowofminority and women referrals within the time limit sal forth In the collective bargaining agreement,the contractor 5.Personnel Actions:Wages,working conditions.and employee will, through Independent recruitment efforts, fill the employment benefits shall be established and administered,and personnel actions vacancies without regard to race,color,religion,sex,national origin, of every type. Including hiring, upgrading, promotion, transfer, age or disability; making full efforts to obtain qualified and/or demotion,layoff,and termination;shall be taken without regard to qqualiflable minority group persons and women. (The DOL has held race, color, religion, sox, national origin, age or disability. The lhal it shall be no excuse that the union with which the contractor has following procedures shall be followed: a collective bargaining agreement providing for exclusive referral a. The contractor will conduct periodic Inspections of project failed to refer minority employees.) In the event the union referral sites to Insure that working conditions and employee facilities do not practice pprevents the contractor from meeting the obligations indicate discriminatory treatment of project site personnel. pursuant to Executive Order 11249,as amended,and these special provisions,such contractor shall Immedletely notify the SHA. b.The conlractorwill periodically evaluate the spread ofwappas paid within each classification to determine any evidence of dlscrtml- 8.Selection of Subcontractors,Procurement of Materials snd natory wage practices. Leasing of Equipment: The contractor shall not discriminate on the gprounds of race,color,religion,sex,national origin,age or disability c. The contractor will periodically review selected personnel In the selection and retention of subcontractors,including procure- actions In depth to determine whether there Is evidence of dlscrimina- ment of materials and leases of equipment. lion. Where evidence is found, the contractor will promptly take corrective action. If the review Indicates That the discrimination may a. The contractor shall notify all potential subcontractors and extend beyond the actions reviewed, such corrective action shall suppliers of his/her EEO obligations under this contract. Include all affected persons. b.Disadvantaged business ontsrprises(DOE).asdefinadin40 d. The contractor will promptly Investigate all complaints of CFR 23,shall have equal opportunity to compete for and perform alleged dlscdminallon made to the contractor In connection with his subcontracts which the contractor enter$ Into pursuant to this obligations under this contract,will attempt to resolve such com- contract. The contractor will use his best efforts to solicit bids from plalnts,and will take apprapriale corrective action within a reasonable and to utilize DBE subcontractors or subcontractors with meaningful lime. If the investigation Indicates that the discriminallon may affect minority group and female repreitentalton among their employees. Fr other than the complainant.such corrective action shall Contractors shall obtain[isle of DBE construction firms from SHA Includo such other persons. Upon completion of each Investigation, personnel. the contractor will Inform every complainant of all of his avenues of appeal. c.The contractorwill use his best efforts to ensure subconlrac- lor compliance with their EEO obligations. 0. Training and Promotion: 9.Records and Reports: The contractor shall keep such records a. The contractor will assist in locating, qualifying, and as necessary to document compliance with the EEO requirements. incroasing the skills of minority group and women employees,and Such records ahafi be retained for a period of three years following applicants for employment. completion of the contract work and shall be available at reasonable times and places for Inspection by authorized representatives of the b.Consistent with the coniractor's workforce requirements and SHA and the FHWA. as permissible under Federal and State regulations,the contractor shall make full use of training programs.Le..apprenticeship,and a. The records kept by the contractor shall document the on-the-job training programs for the geographical area of contract following: Forformance. Where feasible.25 percent of apprentices or trainees each occupation shall be In their first year of apprenticeship or (1) The number of minority and non-minority group training. to the event a special prevision for training is provided under members and women employed In each work classification on the this contract,this subparbgrophwigbe superseded aslndtcatodinThe project; special provision. (2) The progress and efforts being made In cooperation c. The contractor wig advise employees and applicants for with unions,when applicable,to Increase employment opportunities empoyment of available ualning programs and entrance require- for minorities and women. monis for each. (3)The progress and efforts being made In locating,hiring, 0. The contractor will parlodicaty review the training and training,qualifying,and upgrading minority and female employees; promotion potential of minority gioup and women employees and will and encourage eligible employees(o apply for such trstning and promo. lion. (4) The progress and efforts being made In securing the services of OBE subcontractors or subcontractors with meaningful 7, Unlons: If the contractor relies in whole or in part upon unions minority and female representation among Ihelr employees. as a source of employees,the conlractorwlll use hialther boat efforts to obtain the cooperation of such unions to increase opportunities for b. The contractors will submit an annual report to the SHA Page 2 Form FHWA•1273(Rev.3-94) each July for the duration of the project,indicating the number of b. Laborers or mechanics performing work In more than one minority, women, and non-mincriy group employees currently classification may be compensated at the rate specified for each engaged In each wotk classification required by the contract work. daseHicaUon for the time scivaly worked therein,provided.that the This Information is to be repotted on Form FHWA-1391. If on-the ampleyer's payroll records accurately set forth the time spent in each too training Is being required by special provision,the contractor wig classification In which work Is performed. Do required to coiled and report training data. c. AA rulings and interpretations of the Davis-Bacon Act and Ill. NONSEGREGATED FACILITIES related acts contained In 29 CFR 1,3,and 5 are herein Incorporated (Applicable to all Federal-old construction contracts and to all by reference In this contract. related subcontracts of$10.000 or more.) 2. Classification: a. By submission of this bid, the execution of this contract or a. The SHA contracting officer shall require that any class of subcontract,or the consummation of this material supply agreement laborers or mechanics employed under the contract,which Is not or purchase order,as appropriate,the bidder.Fedarel-old construc- listed In the wage determination,shall be classified In conformance lion contractor, subcontractor, material supplier, or vendor, as with the wage determination. appropriate,certifies that the firm does not maintain or provide for its employees any segregated facilities at any of Its establishments.and b.The conlrading officer shall approve an additional ciasaillcs- that the firm does not permit its employees to perform their services lion,wage rate and fringe benallts only when the following criteria at any location, under its control,where segregated facilities are have been met: maintained. The firm agrees that a breach of this certification Is a violation of the EEO provisions of this contract. The firm further (1) the work to be performed by the additional classifica- certifies Ihatno employeewlll be denied access loodequa(o facilities lion requested Is not performed by a classi0cation In the wage on the basis of sex or disability. determination: b. As used In Ibis cartlficallan,the term*segregated fadgilee' (2)(he additional classification Is utilized In the area by the moans any waiting rooms,work areas,mstmoms and washrooms, construction Industry: restaurants and other eating areas,llmeclocks,locker rooms,and other storage or dressing areas, parking Iota, drinking fountains, (3)the proposed wage rate.Including any bona fide fringe recreation or entertainment areas. transportation. and housingp benefits,beef&a reasonable relationship to the wage rates contained faclUlles provided for employees which are segregated by expII9 In The wage determination;and directive, or are,in fad, segregated on the basis of race, color religion; national origin, age Of disabillty, because of habit, local (4) with respect to helpera,when such a classification custom,or otherwise. The only,exception will be for the disabled prevails In the area In which the work Is performed. when the demands for accessibility override(e.g.disabled parking). c. If the contractor or subcontractors,as appropriate, the c. The contractor agrees that I(has obtained or wig obtain laborers and mechanics(If known)to be employed In the additional Identical certification from proposed subcontractors or material dassificatlon or their representatives, and the contracting officer suppliers prior to award of subcontracts orconsummatlon of material agree on the classification and wage rate(including the amount supply agreements of$10.000 OF more and that It will retain such designated for fringe benefits where appropriate),a report of the certifications in its files. action taken shall be sent by the contractGs9 officer to the DOL. Administrator of the Wage and Hour Division,Emptoyment Standards IV. PAYMENT OF PREDETERMINED MINIMUM WAGE Administration, Washington, D.C. 20210. The Wage and Hour Administrator,or an authorized representative,will approve,modify, (Applicable to all Federal-old construction contracts exceeding or dlaspprove every additional classification action within 30 days of $2.000 and to all related subcontracts,exceppt for projects located on receipt and so advise the contracting officer orwill notify the contract. roadways classified as local roads or rural Zor collectors,which are Ing officer wilhin the 30-day period that additional time is necessary. exempt;) d. In The event the contractor or subcontractors,as appppropri- 1. General: ate, the laborers or mechanics to be om loyed In the addlllonal classification or their representatives,and the contracting officer do a. All mechanics and laborers employed or working upon the not agree on the proposed classification and wage rate(including lire site of the work wl[T be paid unconditionally and not less often than amount designated p for fringe benefits, where appropriate), the once a weak and without subsequent deduction or robate on any contracting officer shall refer the questions.Including the views of all account (except such payroll deductions as are permitted by Interested parties and the recommendation ofthe contracting officer, regulations(29 CFR 3)Issued by the Secretary of Labor under the to the Wage and Hour Administrator for determination. Sold Copeland Ad(40 U.S.C.278c))the full amounts of wages and bona Administrator,oran authorized representative.will Issue a determine. fide fringa benefits (or cash equivalents thereof) due at time of lion within 30 days of receipt and so advise the contracting officer or payment. The payment shall be computed at wage rates not less will notify the contracting officer within the 30-day period that than those contained In the wage determination of the Secretary of additional time Is necessary Labor(herelneker"the wage determination")which is attached hereto and made a part hereof,regardless of any contractual relationship a.The wage rate(including fringe benefits whore appropriate) which may be alleged to exist between the contractor OF Ica subcon- determined pursuant to paragraph 2c or 2d of this Section IV shall be tractors and such laborers and mechanics. The wage determination paid to all workers performing work in the additional classification (Including any additional classifications and wage rates conformed From the first day on which work Is performed In the classification. under paragraph 2 of Ibis Section IV and the DOL poster(WH-1321) or Form FHWA-1495)shall be posted at all limes by the contractor 3. Payment of Fringe Benefits: and its subcontractors at The silo of the work In a prominent and accessible place where it can be easily seen by the workers. For the a,Whenever the minimum wage rate prescribed In the contract purpose of this Section, contributions made or coats reasonably for a class of laborers or mechanics Includes a fringe benefit which anticipated for bona Ode fringge benefits under Section i(b)(2)of the Is not expressed as an hourly rate,the contractor or subcontractors, Davis-Bacon Act(40U.S.C.278a)onbohatfoftoborersormechanics as appropriate,shall either pay the benefit as stated In the wage are considered wages paid to such laborers or mechanics.subject to determination or shall pay another bona Ode fringe benefit or an the provision of Section IV, paragraph 3b,hereof. Also,for The houry case equivalent thereof. purpose of this Section,regular coniNbutions made or costs Incurred for more than a weekly period(but not less often than quarterly) b. If the contractor or subcontractor.as appropriate,does not under plans,funds,or programs,which cover the particular weekly make payments to a trustee or other Ihlrd person,he/she may parlod,aro doomed lo be coneiructively mado or Incurred during such consider as a part of the wages of any taborer or mechanic the weekly period. Such laborers and mechanics shall be paid the amount of any costs reasonably anticipated In pprovldtng bona fide nppropdato wage rate and fringe benefits on the wage determination binge benefits under a plan or program,provid:1 that Ore Secretary for the classification of work actually performed,without regard to of Labor has found,upon the written request of the contractor,that skill,except as provided In paragraphs 4 and 5 of this Section IV. the appTlcable atandards of the Davis-Bacon Act have been met.The Secretary of Labor may require the contractor to set aside In a separate account assets for the maeting of obligations under the plan Of program. Form FHWA-1273(Rev.3.94) P,s�y 4. Apprentices and Tralnoos(Programs of the U.S.DOL)and Division determines that there Is an apprenticeship program sssocl- Holpam: sled with the corresponding Journeyman-lovel wage rate on the we pa determination which provides for less than full fringe benefits for a. Apprentices: a prentices,In which case such trainees shall receive the soma f (1} Apprentices will be permitted to work at leas than the Tinge benords as apprentices. predelermuted rate for the work the performed when they are (4)In the event the Employment and Training Adminlslra- employed pursuant to and Individually registered In a bona Ode lion withdraws approval of a training program, the contractor or apprenticeship pragram registered with The DOL,Employment and subcontractor will no longer be permitted to ulJize trainees at less Training Adm lrallon,Bureau of Apprpnllceship and Training,or than the applicable predetermined rate for the work performed until with a Slate apprenticeship agency recognized by the Bureau,or If a an acceptable program Is approved. person Is employed In his/her first 90 days of probationary employ- ment as an apprentice In such an apprenticeship program,who is not c. Helpers: Individually registered In the program,but who has boon certified by the Bureau of Apprenticeship and Tialning or a State apprenticeship Helpers will be permitted to work on a project if the helper agency(where appropriate)to be eligible for probationary employ- classification Is specified and defined on the appticabro wage ment as an apprentice. determinallonorIs approved pursuant to the conformance procedure sot forth In Section N.2. Any worker fisted on a payroll at a helper (2)The allowable ratio of epprentices to journeyman-level wage rate,who to not a helper under a approved dermItion,shall be employees on the job silo In any craft classification shalt not be paid not less than the applicable wage tale on the wage determine- greater than the ratio permitted to the contractor as to the entire work Ilon for the classification of work sclually performed. force under the registered program.Any emptoyyad listed on a payroll a1 an apprentice wage rate, who Is not registered or otherwise 5, Apprentices and Trainees(Programs of the U.S,00T): employed as stated above,shelf be paid not less than lheappkceble wage rate listed In the wage determination for the classification of Apprentices and trainees working tinder apprenticeship and skill work actually.performed.Inaddillon,anyapprenUoeperformhsgwork training programs which have been certified by the Secretary of on the job site In excess of[be ratio pormlllled under the registered Transportation as promoting EEO In connection with Federal-aid program shah be paid not less than the applicable wage rate on the highway construction Mnre not subject to the requirements wage determination for the work actually performed. Where a of paragraph 4 of this 3ecUo IV-The straight time hourly wage rates contractor or subcontractor Is performing construct"on a project In for eppoli ices and trainees under such programs wlpbe established a locality other than that In which Its program Is registered,the ratios by the particular programs. The rago of apprentlees and trainees to and wage rates(expressed in percentages of the journeyman-level journeyman shall not be greater than permitted by the terms of the hourly rate)apeafied in the contractor's or subcontractor's registered particular program, program shal be observed. (3) Every apprentice must be paid at not less than the rate 8. Withholding: specified In the registered program for the apprenike's level of The SHA shall upon Its own action or upon written request of progress,expressed as a percentage of the joumoyman-level hourly an authorized representative of the DOL withhold,or cause to be rate spin fled In the applicable wage determination. Apprentices withheld,from the contractor or subcontractor under this contract or shall be paid fringe bonetlts In accordance with the provisions of the any other Federal contract with the same prima contractor,or any apprenticeship program. If the appronllceship program does not other Federally-asslated contract subject to Davis-Bacon prevallIng specify fringe benefits,apprentices must be paid the full amount of wage requirements which Is held by the same prime contractor,ore fringe benefits listed on the wage determination for the applicable much of the accrued payments or advances as mayy be considered classification. If the Administrator for the Wage and Hour Division n000aaary to pay!sharers and mechanics,including apprentices, determines that a different practice prevails for the applicable traln9es,and helpers,employed by the contractoror any subcontrac- apprentice classification,hinges shallbe paid In accordance with that for the kill amount ofwages required by the contract. In the event of determination. failure to pay any taborer or mechanic,including any apprentice, trainee,or helper,employed or working on the site of the work,all or (4)In the event the Bureau of Apprengeashlp and Training, pan of the wages required by the contract,the SHA contracting officer or a State apprenticeship agency recognized by the Bureau,with- may,after written notice to the contractor,take such action as maybe draws approval of an apprentloeshlp progrem, the contractor or necessary to cause the suspension ofany further payment.advance. subconlractorwUi no longer be permilledPto utilize apprentices at less or guarantee of funds until such violations have ceased. than the applicable predetermined rate for the comparable work performed by regular employees unlit an acceptable program Is 7, Ovortlms Requirements: approved. No contractor or subcontractor contracting for any part Willa b. Trainees: contract work which may require or Involve the employment of laborers,mechanics,watchmen,or guards(tncludlno apprentices, (1) Except as provided In 29 C FR 5.10,trainees will not be trainees,and helpers described In paragraphs 4 and 5 abovo)shall permitted o work at lase then the predetermined rate for the work require or permit any laborer,mechanic,watchman,or guard in any performed unless they are employed pursuant to and Individually workweek In which he/she Is employed on such work,to work In registered in a program which has received prior approval,evidenced excess 040 hours In such workweek unless such laborer,mechanic, by formal certification by the DOL, Employment and Training watchmen,or guard receives compensation at a rats not lose than Administration. one-and-one-half times his/her basic rate of pay for oil hours worked In excess of 40 hours In such workweek, (2)The ratio of trainees to►ournoymon•tovel employees on the job site shall not be greater than permitted under the plan a. Violation: approved by the Employment and Training Administration. Any employee listed an the payroll at a trainee rate who is not registered LlabIMy for Unpaid Wages;Llyuklatod Damages: In the event and participating In a training plan approved by the Employment and of any violation of the clause set forth In paragraph 7 above,the Training Adrnistraton shall be paid not loss then the applicable contractor and any subcontractor responsible thereof Shall be liable wage rate on the wage determination for the classification of work to the affected employee for his/her unpaid wages. in addition,such actually performed. In addition,any trainee performing work on the contractor and subcontractor shall be liable to the United Slates(In job she In excess of the ratio permitted under the registered program Use case of work done under contract for the District of Columbia or shall be paid not loss than the applicable wage rate on the wage atarrltory,to such Dlstrlcl or to such territory)for liquidated damages. delufmination for the work actually performed. Such liquidated damages shall be computed wish respect to each Individual laborer, mechanic, watchman, or guard employed in (3) Every trainee must be paid at not toes than the rate violation of the clause set forth in paragraph 7.In the Sum of$10 for specified in the approved program for hlslher [oval of progress, each calendar day on which such employee was required or permit• expressed as a percentage of the journeyman-level hourly rate led to work In excess of the standard work week of 40 hours without specified in the applicable wage determination. Trainees shall be payment of the ovorllme wages required by the clause sot forth In paid fringe benefits in accordance with the provisions of the trainee paragraph 7. program. If the trainee program does not mention Irinoo benefits, trainees shall be paid the full amount of fringe benefits listed on the 9 Withholding for Unpaid Wages and Liquidated Damages: wogo dolorminallon unless the Adminishslor of the Wage and Hour pas.4 Form FHWA-1273(Rev.3.94) The SHA shag upon Its own action or upon written request of any either directly or indirectly from the full wages earned,other than authorized representative of the DOL withhold, or cause to be permissible deductions as set forth In the Regulations,29 CFR 3; withheld.from any monies payable on account of work padormed the contractor or subcontradar under any such conlract or any other (3)that each taborer or mechanic has been paid not toss Federal contract with the same prime contractor, or any other that the apPpble wage rate end Wge benefits or cash equivalent Fedorally-assisted contract subject to the Contract Work Hours and for the classification of worked performed, as specified In the Safely Standards Act.which Is hold by the same prime contractor, applicable wage detetminatlon Incorporated Into the contract. such sums as may be determined to be necessary to satisfy any gabllltles of such contractor or subcontractor for unpaid wages and a. The weekly submission of a properly executed certification liquidated damages as provided In the clause set forth In paragraph set forth an the reverse side of Optional Form 04-347 shall satisk 8 above. the requirement for submission of the*Statement of Compliance required by paragraph 2d of this Section V. V. STATEMENTS AND PAYROLLS 1. The falsification of any of the above certc8wllons may (Appgcsbte to all Federal-aid construction contracts exceeding subject the contractor to civg or cnmftmd prosecutlon under 18 U.S.C. $2,000 and to all related subcontracts,except tar protects located on 1001 and 31 U.S.C.231. roadways classified as local roads or rural col ec(ors, which are exempt.) g. The contractor or subcontractor shag make the records required under paragraph 2b of this Section V available for Inspoc- 1. Compliance with Copeland Regulations(29 CFR 3): tion,copyin�p,or transcription by authorized representatives of the SHA,the FHWA,or the DOL.and shall permit such representatives The contractor shag comply with the Copeland Regulations of the to Interview employees during working hours on the lob. If the Secretary of Labor which are heroin Incorporated by reference. contractor or subcontractor falls to submit the required records Cr to make them available,the SHA,the FHWA,the DOL,or all may,after 2. Payrolls and Payroll Records: written notice to the contractor,sponsor,applicant,or owner,take such actions as may be necessary to cause the suspension of any a. Payrolls and basic records relating thereto shell be fudher payment, advance,or guarantee of funds. Furthermore, maintained by the contractor and each subcontractor during the failure to submit the required records upon request or to make such course of the work and preserved for a porlod of 3 years from the records available may be grounds for debarment action pursuant to date of completion of the contract for all laborers, mechanics. 29 CFR 5.12. apprentices,trainees,watchmen,helpers,and guards working at the site of the work. VI. RECORD OF MATERIALS,SUPPLIES,AND LABOR b. The psytog records shall contain the name,social security 1. On all Federal-old contracts on the National Highway System, Correct number, and address of each such employee;his or her except those which provide solely for the Installation of protective ctassif aillon;hourly rates of wages paid pitcluding rates ofcontdbu- devices at railroad Wade crossinggss those which are constructed on lions or costs anticipated for bona tide Cringe benefits or cash a force account ordfrect labor basis.highway beautification contracts, equivalent thereof the types described In Section 11(b)(2)(B)of the and contracts for which the total tonal construction cost for roadway Davis Bacon Act); daily and woekN number of hours worked; and bridge Is less than$1,000,000(23 CFR 635)the contractor shel: deductions made;and actual wages paid. In addition,for Appola- c hlon contracts,the payroll records shall contain a notation Indicating a. Become familiar with the list of specific materials and whether the employee does,or does not,normally reside In the labor supplies contained In Form FHWAA7,'Statement of Materials and area as defined In Attachment A, paragraph 1. Whenever the Labor Used byConlractorof highway Construction involving Federal Secretary of Labor,pursuant to Section IV paragraph 3b,has found Funds,"prior to the commencement of work under this contract. that the wages of any laborer or mechanic Include the amount of any costs reasonably antictpated In providing benefits under a plan or b. Maintain a record of the total cost of all materials and program described in Section 1(b)(2)(8)of The Davis Bacon Acl the supplies purchased for and Incorporated In the work,and also of the contractor and each subconlractorshall maintain records which show quanilges of those spsclflc matedals and supplies listed on Form that the commitment to provide such benelita Is enforceable,that the FHWA-47,and In the units shown on Form FHWA-47. plan or program is financially responsible,that the plan or program has been communicated In writing to the laborers or mochanlcs c. Furnish,upon the completion of the contract,to the SHA affected,and show the cost anticipated or the actual cost Incurred In resident engineer on Form FHWA47 together with the data required provWlrtg benefits. Contractors or subcontractor$ employing in paragraph lb relative to materials and supplies,a final labor apprentices or trainees under approved programs shall maintain summary of all contract work Indicating the total hours worked and written evidence of the registration of apprentices and lrelnees,and the total amount earned. ratios and wage rates prescribed in the appgcabls programs. 2. At the prime contractor's option.either a single report covering c. Each contractor and subcontractor shall furnish,each week all contract work or separate reports for the contractor and for each In which any contract work Is performed, to the SHA resident subcontract shag be submitted. engineer a payroll of wages paid each of Its employees(Including apprentices,trainees,and helpers, described In Section IV,pare. VII. SUBLETTING OR ASSIGNING THE CONTRACT graphgraphs 4 and 5,and watchmen and guards engaged on work during s preceding weekly payroll ppedod). The payroll submitted shall eel 1. The contractor shall perform with Its awn ergenUallon contract out accurately and completely all of the Information required to be work amounitng to not less than 30 percent(or a greater percentage maintained under paragraph 2b of this Section V. This Information if specified elsewhere In the contract)of the total original contract may be submitted In any form desired. Optional Form WH-347 is grico, excluding any specialty Items designated byy Iho Stale. available for this purpose and may be purchased from the Superin- pecda Items may be performed by subcontract and the amount of londent of Documents(Federal stock number029-005.0014-1).U.S. any stillspecialty Iteme performed may be deducted from the total Government Priming Office.Washington,D.C.20402. The prime original contract price before computing the amount of work required contractor Is responsible for the submission of copies of payrolls by to be performed by the contractors own organization(23 CFR 635). all subcontractors. a. 'Its own organization'shall be construed to Include only d. Each payroll submitted shall be accompanied by a'State- workers employed and paid directly by the prime contractor and mont of Compliance,'signed by the contractor or subcontractor or equipment awned or rented by the prime contractor,with or without his/her agent who pays or supervises the payment of the persons operators. Such term does not include employees or equipment of employed under the contract and shall certify the following: 11) that lire payroll for the payroll period contains the infarmatlon required to be maintained under paragraph 2b of this Section V and[hat such Information is correct and complete; (2)that such laborer or mechanic(including each helper, apprentleo,and irolnoo)omployod an tho conlract during Iho payroll period has been paid the full weekly wages earned,without rebels, either directly or indirectly,and Inal no deduclTone have been made Form FHWA-1273(Rev.3-94) r.o.5 (1,6-E 'A61j)CLZI•VMHA tuJO j a bled spp geulwist Aew Aoueae Jo luawuedeP e4111JOWU9Aap I0J9p9 j Ap)enD ioInjoyo ey)01 seJJodaJ O1)e)J0•voi)eIUG5WdeJ 9g1c)-1u0w 04101 rggeptAe 29jpew9J)W0 01 uopippe ul'uoltoouaa snoeuoue -ejels eslej Aue segew A)Oulmoul 'u0Jlarodio3 Jo 'wig '004jecosto us pompuoi Al6ulmaq lulop 0diz Awtupd eNloaddso 0411e41 patqui Vowed a►oyloym 'JDAOOYAi JO ' OjUrel Jo 0106 Aug 10 io 'solalS 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'q joeis yj Jana ey)Jo petwoped eq of io p9wJolad ill)OA oyj jo pysnb Jo Alljuonb eql jo posn sq g10 pgn)epsjow oyj jo)sw Jo 5llguenb J0101JIU03 auilid eta)a jusas is'eoubisss'iolooiluawns 0 transaction for cause of defsuil. Certification Regarding Debarment,Suspension,Ineligibility and Voluntary Excluelon••Primary Covered Transactions d.The prospective primary participant shall provide Immediate written noltco to the department or agency to whom ihls proposal Is 1. The prospective rimary participant conifies to Iho best of Its submitted If any time the prospective primary participant learns that knowledge and bel ef,that It and Its principals: Its codification was erroneous when submtted or has become erroneous by reason of changed circumstances, a. Are not presently debarred, suspended, proposed for debarment,declared Ineligible,or votunlw*excluded from covered 0. The terms'covered transaction.-"debarred;'suspended; transactions by any Federal department or agency; -ineligible;'lower tier covered transaction;'partkipanl,"-person 'primary covered transacton;'prindpal;'proposal, artd"vokmtardy b. Have not within a 31eeaar period preceding this proposal excluded'as used in 0t(s clause,have the meanings set out In the boon convicted of or had a civ9ludgemenl rendered against them for Definitions and Coverage sections of rules Implementng Executive commission of fraud or a criminal offense In connection with obtain- Order 12549. You may contact the department or agency to which Ing.allampling to obtain,or pedorming a public(Federal,State or this proposal Is submrTted for assistance In obtaining a copy of those local)transaction or contract under a pubk transaction;violation of regulations. Federal or Stab antitrust statutes or commission of embezzlement, theft,forgery,bribery,falsification or destruction of records,making I.The prospective primary participant al tells by submitting lids (also statements,of receiving stolen property; proposal that,should the proposed covered transaction be entered Into,It shell not knowingly enter Into any lower liar covered transac- c.Are not presently Indicted for orothenvlse criminally or civilly lion with a person who is debarred,suspended,declared Ineligible, charged by a governmental entity (Federal, Slate or local)with or voluntarily excluded from participation In this covered transaction, commission of any of the offenses enumerated In paragraph lb of unless authorized by the departmenl or agency entering Into this this certification;and transaction. d. Have not within a 3-year period preceding this appltca- g. The prospective primary participant further agrees by tion/proposei had one or more public transactions(Federal.Slate or submitting this proposal teat A will Include the clause frilled"Certifica- local terminated for cause or default lion Regarding Debarment.Suspension,ineligibility and Voluntary Excluslon-Lower Tier Covered Transaction," provided by the 2.Whore the prospective primary participant Is unable to certify to department or agency entering Into this covered transaction,without any of the statements In fhb certification,such prospective parilcipent modification.In at lower tier covered transactions and In all solicits- shall attach an explanation to this proposal. lions for lower Her coveted transactions. h. A participant In a covered Iransactlon may rely upon a certification of a pros alive participant in a lower gar covered transaction that is not debarred,suspended,Inallgihle,or voluntarily 2. Instructions for Certification•LoworTlerCoverod Transac- excluded from the covered transaction, unless 11 knows that the lions: certification Is erroneous. A participant may decide the method and Irequoncy by which ltdolermines the eligibility of Ile principals. Each (Applicable to all subcontracts,purchase orders and other lower participant may.but is not required to,check the nonprocuremenl tier transactions of$26,000 or more.49 CFR 20) portion of the"Lists of Parties Excluded From Federal Procurement or Nonprocurement ProrogBrams" (Nonprocurement List) which Is a. By signing and submitting finis proposal,the prospective compiled by the Goneral5ervleas Administration. lower tier Is providing the certification set out below. I. Nothing contained in the foregoing shall be construed to b. The certification In this clause Is a material representation require establishment of a system of records In order to render in of fact upon which reliance was placed when this transaction was goad faith the Certification required by this clause. The knowledge entered Into. If it Is later determined that the prospective lower tar and Information of pardcJpant is not required to exceed that which is participant knowingly tendered an erroneous cani9eallon.In addition normally possessed by a prudent parson In the ordinary course of to other remedies available to the Federal Government,the depart- business dealings. menh or agency with which this transacdon originated may pursue Except for transactions authorized urudor paragraph!01 available remedies,Including suspension and/or debarment. those Inslrucllona,if a panddpanl In a covered Iransaction knowingly c. The prospective tower liter participant shall provide Immadl- entom Into a tower ter covered transaction with a person who Is ate written notice to the person to which this proposal Is submitted It suspended, debarred, ineligible, or voluntarily, excluded from at any time the prospective lower tier participant learns that its Fartfdpallonin this transaction,In addition to other remedies available cerg0callon was erroneous by reason of changed circumstances. o the FFederal Government,the department or agencymayterminate this Iransaction for cause or default. d. The terms*covered trensaeton,"debarred,""sub ended; "Ineligible''primary covered transaction;"peracipanl,' 'person.' 'principal,""proposal,"and"voluntarily excluded;as used to this delouse,hove The meanings set out In the Definitlons and Coverage socllons of rules Implementing Executive Order 12549. You may contact the person to which this proposal Is submitted for assistance In obtaining a copy of those regulations. e. The prospective lower Ilan participant agrees by submitting this proposal that, should [he proposed covered transaction be entered into.11 shag not knowingly enter Into any lower tar covered transaction with a person who Is debarred, suspended, declared ineligible,or voluntarily excluded from park1pallon In this covered transaction, unless authorized by the department or agency with which this transaction originated. f. The prospective tower tier participant further agrees by aubmilling this proposal that It will include this clause lttled"CorGfica- lion Regarding Debarment Suspension,Ineff9lblaly and Voluntary Excluslon•Lower Tier Covered Transaction;without modllleallon.In au lower flat covered transactions and In all solicitations for lower tier covered transactions. 9. A participant In a covered transaction may rely upon a corlincallon of a prospective participant to o lower tier covered transaction that is not debarred,suspended.Ineligiblo,or voluntarily excluded from the covered transaction,unless It knows that the coAlOcation is erroneous. A participant may decide the method and Form FHWA-1273(Rev.3.94) Pp,r frequency bywhich It determines the eligibility of its principals. Each X11. CERTIFICATION REGARDING USE OF CONTRACT FUNDS pparticipant may,but Is not required to,check the Nonprocumment FOR LOBBYING W. (Applicable to all Federal-old construction contracts and to all h. Nothing contained in the foregoing shall be construed to related subcontracts which exceed$100,000.49 CFR 20) require ostablishmanl of a system of meows In order to render in good faith the ceNflcatlon required by We clause. The knowledge 1. The prospective participant certlOes,by signing and submitting and Information of participant Is not requi ed to exceed that which Is this bid or proposal,to Use best of his or her knowledge and bagel normally possessed by a prudent person In the ordinary course of that: business dealings. a. No Federal appropriated funds have been paid or will be 1. Except for Imnsadions authorized under paragraph a of paid,byoronbahaltoftheunderJpn�ed,toanypersonforInfluencing these Instrucdona.If a participant In o covered transaction knowingly or attempting to Influence an officer or employee of any Federal enters Into a lower got covered transaction wi01 a person who Is agency,a Member of Congress,an officer or employee of Congress, suspended, debarred, Inallgible, or voluntarily excluded from or an employee of a Member of Congress In connection with the parlidpallon In 11110ansadbn,Inaddlilon to other remedies available aware fno of any Federal contract,the making of any Federal grant. to the Federal Government,the department or agency with which this the making of any Federal loan,the entering Into of any cooperative transaction artginaled may pursue available remedies, Including agreement,and the extension,continuation,renewal,amandmant,or suspension endlor debarment. modiflcallon of any Federal contract, grant, loan, or cooperative agreement. b, If any funds other than Federal apprapdated funds have been paid orwlll be paid to any person for Influencing or attempting Certification Regarding Debarment,Suspension,Ineligibility to Influence an officer or employee of any Federal agency,a Member and Voluntary Excluslon«Lower Tier Covered Transactions: of Can rose.an officer or employee of Congress,or an employee of a Member of Congress In commotion with this Federal contract,grant. 1.The prospective lower ller participant corti0es,by submission at loan,or cooperallvo agreement,the undersigned shag complete and this proposal,that neither It nor Its principals Is presently debarred, submit Standard Form•LLL,'Disclosure Form to Report Lobbying;to suspended,proposed for debarment,declared Ineligible,or volun• accordance with Its Instructions. tarlty excluded from participation In lNe transaction by any Federal department or agency. 2.This codification is a material representation of fact upon which rellance was placed when lids transaction was made or entered Into. 2. Where the prospective lower got participantis unable tocertify SubmissionofdhtscerURcallonIsa prerequisite formakingorentering to arty of the statements In this certification, such prospective Into 116 transaction Imposed by 31 U.S.C. 1352. Any person who partdclpant shall attach an explanation to this proposal. fags to file Ole required certification shall be subject to a civil penalty of not less than$10.000 and not more than S100.000 for each such failure. 3.The prospective parilcipant also agrees byy subrillting his or her bid or proposal that he or she shelf require Ihal the language of this certlitcallon be Included In all lower tier subcontracts,which exceed 5100,000 and that all such recipients shell tarlty and disclose accordingly. 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TYDOT has received Federal financial assistance from the Department of Transportation,and as a condition of receiving this assistance,T%DOT has signed an assurance that It will comply with 49 CPR Part 26. It is the policy of TxDOT to ensure that DBEs,as defined in part 26,have an equal opportunity to receive sad participate in DOT-assisted contracts. It Is also our policy to: • ensure nondiscrimination In the award and admWsuadon of DOT asslatcd contracts; create a level playing field on which DBEs can compete fairly for DOT assIstcd contracts; ensure that the DBE Program is narrowly tailored In accordance with applicable law;ensure that only firms that tally meet 49 CPR Pact 26 eligibility standards are permitted to Participate as DBEs; • help remove barriers to the participation of DBEs In DOT assisted contracts;and • assist In the development of firms that can compete sueoesttblly In the market place outside the D BE Progran;L Nnudisertminalfon Policy TxDOT will never exclude any parson from participation In,deny any person the benofits of,or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR Part 26 on the basis of race,color,sex,or national origin. In administering its DBE program,TxDOT will not,directly or through contractual or other arrangements,use criteria or madwds of adntinisuation that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE program with respect to individuals of a particular race,color,sex,or national origin TxDOT has disseminated this policy statement to the Texas Transportation Commission and all the components of our organization. Through the distribution of this DBE program, we have distributed this statement to DBE and non-DOE business communities that perform work for us on DOT•asslsted contracts. Appointment of DBE Liaison Officer(DUELO) The Director of Business Opportunity Programs Office has been delcgatcd as the DBE Liaison Otliccr. In that capacity, the Director of Business Opportunity Programs Oflice is responsible for implementing all aspects of the DBE program. Implementation of the DBE program is An 6p,r CAW&A"Y&o.01W 1 accorded the same priority as complianco with all other legal obligations incurred by TxDOT in its rn=cial assistance agreements with the Department of Transportation. We have designated the following individual as our DBE Liaison Officer. James T.Dossett, 12S E. t lth St, Austin. Textts 78701. 1n that capacity, James T. Dossan is responsible far implementing all aspects of the DBE program and ensuring that TxDOT complies with all provisions of 49 CM Part 26.James T.Dossett has direct independent access to the Executive Director eoaceming DBE program matters.The DBBLO has 14 professional employees and 4 support staff assigned to the DOE program on a foil-time basis.The attached orgutlzation chart displays the DBELO's position in the organization. Michael W.Behrens,P.E. Date Executive Director Texas Department of Transportation 2 f DISADVANTAGE BUSINESS ENTERPRISE (DBE) PROGRAM TABLE OF CONTENTS SUBPART A—GENERAL REQUIREMENTS...................................................... 4 Section 26.1 Objectives..................................................................................4 Section 26.3 Applicability................................................................................4 Section 26.6 Definitions..................................................................... ........4 Section 26.7 Non-discrimination Requirements..............................................4 Section 26.11 Record Keeping Requirements................................................4 Section 26.13 Federal Financial Assistance Agreement.................................5 SUBPART B -ADMINISTRATIVE REQUIREMENTS..........................................6 Section 26.21 DBE Program Updates.............................................................6 Section 26.23 Policy Statement......................................................................6 Section 26.25 DBE Ualson Officer(DBELO).................................................. 6 Section 26.27 DBE Financial Institutions........................................................ 8 Section 26.29 Prompt Payment Mechanisms................................................. 8 Section26.31 Directory...................................................................................8 Section 26.33 Over-concentration................................................................... 9 Section 26.35 Business Development Programs............................................ 9 Section 26.37 Monitoring and Enforcement Mechanisms.................I.............. 9 SUBPART C—GOALS,GOOD FAITH EFFORTS,AND COUNTING................. 9 Section 26.43 Set-asides or Quotas...............................................................9 Section 28.45 Overall Goals......................................................................... 10 Section 26.49 Transit Vehicle Manufacturers Goals..................................... 10 Section 26.51(d-g) Contract Goals................................................................ 11 TxDOT DBE Special Provision and Bidder's Certification............................. 11 Certification of Goal Attainment.................................................................... 11 Section 26.53 Good Faith Efforts Procedures.........................•..................... 12 Demonstration of good faith efforts (26.53(a) &(c))...................................... 12 Information to be submitted (26.53(b)).......................................................... 12 Administrative reconsideration (26.53(d))..................................................... 13 Good Faith Efforts when a DBE is replaced on a contract(26.53(f)) ............ 13 Section 26.55 Counting DBE Participation.................................................... 14 Useof Joint Checks.......... ..................................................... ..................... 15 SUBPART D—CERTIFICATION STAND6RDS................................................ 16 SUBPART E—CERTIFICATION PROCEDURES............................................. 16 Section 26.83 Procedures for Certification Decisions................................... 16 SUBPART F—COMPLIANCE AND ENFORCEMENT...................................... 17 Section 26.109 Information, Confidentiality, Cooperation and Intimidation or Retaliation..................................................................................................... 17 ATTACHMENTS........................................................................................... 18 3 SUBPART A—GENERAL REQUIREMENTS Section 26.1 Objectives The objectives are found in the policy statement on the first page of this program. Section 26.3 Applicability TxDOT Is the recipient of federal airport funds authorized by 49 U.S.C. 47101, et seq. TxDOT is the recipient of federal--aid highway funds authorized under Titles I and V of the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Pub. L. 102-240, 105 Stat. 1914,Titles I, III, and V of the Transportation Equity at Act for the 21 Century (TEA-21, Pub. L. 105-178, 112 Stat. 107. SAFETEA-LU, P.L. 109-59 TxDOT is the recipient of federal transit funds authorized by Titles I, Ill, V, and VI of ISTEA, Pub. L. 102-240 or by Federal transit laws in Title 49, U.S. Code, or Titles I, II, and V of the TEA-21, Pub. L. 105-178. SAFETEA-LU, P.L. 109-69 Section 26.5 Definitions TxDOT will adopt the definitions contained in Section 26.5 for this program. Section 26.7 Non-discrimination Requirements TxDOT will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone In connection with the award and performance of any contract covered by 49 CFR Part 26- Attachment 1 on the basis of race, color, sex,or national origin. In administering its DBE program,TxDOT will not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE program with respect to individuals of a particular race, color, sex, or national origin. Section 26.11 Record Keeping Requirements Reporting to DOT: 26.11(b) We will report DBE participation to DOT as follows: We will submit annually The Uniform Report of DBE Awards or Commitment and Payments as modified for use by FAA recipients [as amended 68 FIR 35556, June 16, 2003]. 4 We will report on a semi-annual basis The Uniform Report of DBE Awards or Commitment and Payments as modified for use by FHWA[as amended 68 FR 35556, June 16, 20031. We will report on a semi-annual basis The Uniform Report of DBE Awards or Commitment and Payments as modified for use by FTA recipients [as amended 68 FR 36656, June 16, 2003]. These reports will reflect payments actually made to DBEs on DOT-assisted contracts, Bidders List: 26.11(c) TxDOT will create a bidders list, consisting of Information about all DBE and non- DBE firms that bid or quote on DOT-assisted contracts.The purpose of this requirement is to allow use of the bidders list approach to calculating overall goals. The bidder list will include the name, address, DBE non-DBE status, age, and annual gross receipts of firms. We will collect this information in the following ways: The TxDOT Bidder's list consists of firms that include highway construction prime contractors, professional service providers and subcontractor and material suppliers. Subcontractor and material supplier information is supplied by the low bid Prime Contractor. TxDOT Bidder's List data was developed from contractors who have submitted bids on highway construction contracts. In the contract proposal, the low bidder, prior to award'of the contract, is required to submit bidders Information they received for the project. The Bidder's List also contains data from DBEs that submitted bids for construction and professional service contracts and from the DBE Commitments and Awards made. Section 26.13 Federal Financial Assistance Agreement TxDOT has signed the following assurances, applicable to all DOT-assisted contracts and their administration: Assurance: 26.13(a) TxDOT shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT assisted contract or in the administration of its DBE Program or the requirements of 49 CFR part 26.The recipient shall take all necessary and reasonable steps under 49 CFR part 26 to ensure nondiscrimination In the award and administration of DOT assisted 5 contracts.The recipient's DBE Program, as required by 49 CFR part 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to TxDOT of its failure to carry out Its approved program, the Department may impose sanction as provided for under part 26 and may,in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.). This language will appear in financial assistance agreements with sub-recipients. Contract Assurance:26.13b We will ensure that the following clause is placed in every DOT-assisted contract and subcontract: The contractor, sub-recipient, or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract.The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT assisted contracts. Failure by the contractor to carry out these requirements Is a material breech of this contract, which may result In the termination of this contract or such other remedy as the recipient deems appropriate.This information is included in the DBE Special Provision 000-461 1.A.1.b. -Attachment 2. SUBPART B -ADMINISTRATIVE REQUIREMENTS Section 26.21 DBE Program Updates The Department provides U.S. DOT with updates representing significant changes in the program as they occur.The department understands that all changes must be approved by FHWA, FTA, FAA prior to implementation. Section 26.23 Policy Statement The Policy Statement is elaborated on the first page of this program. Section 26.25 DBE Liaison Officer(DBELO) The Director of Business Opportunity Programs Office has been delegated as the DBE Liaison Officer. In that capacity, the Director of Business Opportunity Programs Office is responsible for implementing all aspects of the DBE program. Implementation of the DBE program is accorded the same priority as compliance with all other legal obligations incurred by TxDOT in its financial assistance agreements with the Department of Transportation. 6 We have designated the following individual as our DBE Liaison Officer: James T. Dossett, 125 E. 11th St., Austin, Texas 78701, (512)486-5500, jdossett@dot.state.tx.us In that capacity,the DBELO is responsible for implementing all aspects of the DBE program and ensuring that TxDOTcomplies with all provision of 49 CFR Part 26. The DBELO has direct, Independent access to the Executive Director concerning DBE program matters.An organizational chart-Attachment 3 displays the DBELO's position in the organization. The DBELO is responsible for developing, Implementing and monitoring the DBE program, In coordination with other appropriate officials. The DBELO has a staff of 17 to assist in the administration of the program.The duties and responsibilities of the DBELO and staff include the following: 1 Gathers and reports statistical data and other information as required by DOT. 2 Works with all departments to set overall annual goals. 3 Ensures that bid notices and requests for proposals are available to DBEs in a timely manner. 4 Identifies contracts and procurements so that DBE goals are included in solicitations (both race-neutral methods and contract specific goals attainment and identifies ways to improve progress). 5 Participates with the Division Directors and District Officials to determine contractor compliance with good faith efforts. 6 Analyzes TxDOT's progress toward DBE goal attainment and identifies ways to improve progress. 7 Participates In pre-bid meetings. 8 Advises the Executive Director and the Texas Transportation Commission on DBE matters and achievement. 9 Chairs the DBE Liaison Committee. 10 Participates In pre-bid meetings. 11 Provides DBEs with information and assistance In preparing bids, obtaining bonding and Insurance. 12 Plans and participates in DBE training seminars. 13 Certifies DBEs according to the criteria set by DOT and acts as liaison to the Uniform Certification Process in Texas. 14 Provides outreach to DBEs and community organizations to advise them of opportunities. 15 Maintains the Texas Unified Certification Program(TUCP) updated directory on certified DBEs. 7 Section 26.27 DBE Financial Institutions It is the policy of TxDOT to investigate the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in the community, to make reasonable efforts to use these institutions, and to encourage prime contractors on DOT-assisted contract to make use of these institutions.We have made a thorough search for financial institutions owned and controlled by socially and economically disadvantaged individuals in the State of Texas and were unable to identify financial institutions meeting the requirements of Section 26.27. Section 26.29 Prompt Payment Mechanisms TxDOT will require prime contractors to pay subcontractors for satisfactory performance of their contracts as specified in the Special Provision 009-007 Measurement and Payment-Attachment 4,which Is included in all federal-aid contracts. In regards to the prompt pay full payment of retainage,TxDOT has adopted option 2.TxDOT will decline to hold retainage from prime contractors and require a contract clause obligating prime contractors to make prompt and full payment of any retainage held by prime contractor to the subcontractor as specified In Special Provision 009-007 Measurement and Payment—Attachment 4. [68 FIR 35553, June 16, 2003] Section 26.31 Directory TxDOT maintains a directory identifying all firms eligible to participate as DBEs. The directory lists the firm's name, address, phone number, date of the most recent certification, and the type of work the firm has been certified to perform as a DBE. We revise the Directory on a weekly basis. The TUCP Certifying Partners agree that TxDOT will serve as the TUCP directory manager. The directory manager will be responsible for the following actions: • Input all data and make any corrections, additions and/or deletions upon receipt of Information from the Certifying TUCP Partners; • Maintain and keep the DBE directory current; • Make the DBE directory available to all TUCP Partners and other interested parties; 8 • Maintain the TUCP directory website at www,dot.stat%tx.us see Attachment 5 for sample. Section 26.33 Over-concentration TxDOT has not identified that over-concentration exists in the types of work that DBEs perform. Section 26.36 Business Development Programs TxDOT has not established a business development program. Section 26.37 Monitoring and Enforcement Mechanisms TxDOT will take the following monitoring and enforcement mechanisms to ensure compliance with 49 CFR Part 26: Monitoring Mechanisms-To ensure that OBE requirements of the DOT assisted contract are complied with,the Department will monitor the Contractor's efforts to involve DBEs during the performance of the contract. This will be accomplished by a review of monthly reports submitted to the Area Engineer by the Contractor indicating his progress in achieving the DBE contract goal, and by compliance reviews conducted on the project site by the Department. The DBE Special Provision 000461 -Attachment 2 is included In all federal-aid projects and outlines the monitoring mechanism for compliance with 49CFR Part 26. Enforcement mechanisms-A Contractor's failure to comply with the requirements of the DBE Special Provision 000-461 —Attachment 2 shall constitute a material breach of the federal-aid contract. In such a case, the Department reserves the right to terminate the contract; to deduct the amount of DBE goal not accomplished by DBEs from the money due or to become due the Contractor, or to secure a refund, not as a penalty but as liquidated damages to the Department or such other remedy or remedies as the Department deems appropriate. [As amended at 65 FR 68951, Nov 15, 2000, 68 FR 35554, June 16, 2003] SUBPART C—GOALS, GOOD FAITH EFFORTS, AND COUNTING Section 26.43 Set-asides or Quotas TxDOT does not use set-asides or quotas in any way in the administration of this DBE program. 9 Section 26.45 Overall Goals In accordance with Section 26.45(o TxDOT will submit its overall goal to DOT on August 1 of each year. Before establishing the overall goal each year, TxDOT will consult with women's and general contractor groups, community organizations, and other officials or organizations which could be expected to have Information concerning the availability of disadvantaged and non- disadvantaged businesses to obtain information concerning the availability of disadvantaged and non-disadvantaged businesses, the effects of discrimination on opportunities for DBEs, and TxDOT's efforts to establish a level playing field for the participation of DBEs. Following this consultation, we will publish a notice of the proposed overall goals, informing the public that the proposed goal and its rationale are available for inspection during normal business hours at our principal office for 30 days following the date of the notice, and informing the public that TxDOT will accept comments on the goals for 45 days from the date of the notice.The notice is published on TxDOT's website, newsletter,newspapers, available minority-focus media, and trade publications. Normally,we will Issue this notice by June 25s'of each year.The notice must Include addresses to which comments may be sent and addresses (including offices and websttes)where the proposal may be reviewed. Our overall goal submission to DOT will include a summary of information and comments received during this public participation process and our responses. We will begin using our overall goal on October 1 of each year, unless we have received other instructions from DOT. If we establish a goal on a project basis, we will begin using our goal by the time of the first solicitation for a DOT-assisted contract. A description of the methodology to calculate the overall goal and the goal calculations can be found in Attachment 6 to this program. This section of the program will be updated annually. Section 26.49 Transit Vehicle Manufacturers Goals TxDOT will require each transit vehicle manufacturer, as a condition of being authorized to bid or propose on FTA-assisted transit vehicle procurements,to certify that it has compliedwith the requirements of this section. Alternatively, TxDOT may, at its discretion and with FTA approval, establish project-specific goals for DBE participation in the procurement of transit vehicles in lieu of the TVM complying with this element of the program. 10 Section 26.51(d-g) Contract Goals TxDOT will use contract goals to meet any portion of the overall goal TxDOT does not project being able to meet using race-neutral means. Contract goals are established so that, over the period to which the overall goal applies,they will cumulatively result In meeting any portion of our overall goal that is not projected to be met through the use of race-neutral means. We will establish contract goals only on those DOT-assisted contracts that have subcontracting possibilities. We need not establish a contract goal on every such contract, and the size of contract goals will be adapted to the circumstances of each such contract(e.g., type and location of work, availability of OBEs to perform the particular type of work.) We will express our contract goals as a percentage of the total amount of a DOT-assisted contract. TxDOT DBE Special Provision and Bidder's Certificatlon The purpose of the DBE Special Provision is to carry out the U. S. Department of Transportation's(DOT) policy of ensuring nondiscrimination in the award and administration of DOT assisted contracts and creating a level playing field on which firms owned and controlled by individuals who are determined to be socially and economically disadvantaged can compete fairly for DOT assisted contracts. If the Disadvantaged Business Enterprise (DBE)goal is greater than zero,Article A, "Disadvantaged Business Enterprise in Federal-Aid Construction", of this Special Provision shall apply to this contract. If there is no DBE goal, Article B, "Race-Neutral DBE Participation", of this Special Provision shall apply. to this contract. The percentage goal for DBE participation In the work to be performed under this contract will be shown on the proposal. Certification of DBE Goal Attainment The certification of DBE goal attainment Is included in all proposals for federal- aid highway projects. By signing the proposal,the Bidder certifies that the DBE goal will be met by obtaining commitments equal to or exceeding the DBE percentage or that the Bidder will provide a good faith effort to substantiate the attempt to meet the goal. Failure to provide commitments to meet the stated goal or provide a satisfactory good faith effort will be considered a breach of the requirements of the proposal. As a result, the bid proposal guaranty of the bidder will become property of the Department and the Bidder will be excluded for re bidding on the project when it is re-advertised. See Attachment 7. Tracking and monitoring of DBE goals throughout the life of the contract will be performed by the Department. 11 The Contractor shall submit monthly reports, after work begins, on DBE payments to meet the DBE goal and for DBE race-neutral participation. The monthly report is to be sent to the Area Engineer.These reports will be due within 15 days after the end of a calendar month. The Business Opportunity Programs Office reviews monthly progress reports through computer programs, i.e. SiteManager and Subcontractor Monitoring System (SMS). Upon continual monitoring of the DBE commitment and payments by the Area Engineer, the Area Engineer will notify the Business Opportunity Programs Office of any issue that requires further review. The Business Opportunity Programs Office will Initiate a compliance review and take the appropriate contract remedies. See attached DBE Special Provisions 000-461 -Attachment 2. Section 26.53 Good Faith Efforts Procedures Demonstration of good faith efforts (26.53(a) &(c)) The obligation of the bidder/offeror is to make good faith efforts. The bidder/offeror can demonstrate that it has done so either by meeting the contract goal or documenting good faith efforts. TxDOT's BOP Office Is responsible for determining whether a bidder/offeror who has not met the contract goal has documented sufficient good faith efforts to be regarded as responsive. We will ensure that all information is complete and accurate and adequately documents the bidder/offer's good faith efforts before we commit to the performance of the contract by the bidder/offeror.This process for Good Faith Effort is included in the DBE Special Provision 000-461 3.c. -Attachment 2. Information to be submitted (26.53(b)) TxDOT treats bidder/offers'compliance with good faith efforts' requirements as a matter of responsiveness. Each solicitation for which a contract goal has been established will require the bidderslofferors to submit the following information: 1.The names and addresses of DBE firms that will participate in the contract; 2.A description of the work that each DBE will perform; 3.The dollar amount of the participation of each DBE firm participating; 4.Written and signed documentation of commitment to use a DBE subcontractor whose participation it submits to meet a contract goal; 5. Written and signed confirmation from the DBE that it is participating In the contract as provided in the prime contractors commitment and 12 6. If the contract goal is not met, evidence of good faith efforts. Administrative reconsideration (26.53(d)) Within 15 days of being informed by TxDOT that it Is not responsive because it has not documented sufficient good faith efforts, a bidder/offeror may request administrative reconsideration. Bidder/offerors should make this request in writing to the Director of the BOP Office, Mr.James T. Dossett 125 E. 11"'Street, Austin,Texas 78701, (512)486-5500,idossettadot.state.tx.us The reconsideration official will not have played any role in the original determination that the bidder/offeror did not document sufficient good faith efforts. As part of this reconsideration, the bidder/offeror will have the opportunity to provide written documentation or argument concerning the Issue of whether it met the goal or made adequate good faith efforts to do so. The bidder/offeror will have the opportunity to meet in person with our reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do. We will send the bidder/offeror a written decision on reconsideration, explaining the basis for finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so.The result of the reconsideration process is not administratively appealable to the Department of Transportation. Good Faith Efforts when a DBE is replaced on a contract(26.53(f)) Contractors' requests for substitutions of DBE subcontractors shall be accompanied by a detailed explanation which should substantiate the need for a substitution. The Contractor may not be allowed to count work on those items being substituted toward the DBE goal prior to approval of the substitution from the Department. The Districts will be responsible for coordinating and approving Prime 's request for Substitution. Districts will notify BOP Office of the determination of a contractor's compliance and/or noncompliance of the DBE Special Provision and be responsible for coordinating appropriate sanctions with TxDOTs DBE liaison Officer. If the contractor fails to comply according to federal regulations specified In 49 CFR §26.53 and according to TxDOT contract specifications the contractor will be sanctioned as outlined in TxDOT DBE Special Provision 000-461- Attachment 2. A Contractor's failure to comply with the requirements of the DBE Special Provision shall constitute a material breach of the contract. In such a case, the Department reserves the right to terminate the contract, deduct the amount of DBE goal not accomplished by DBEs from the money due or to become due to the Contractor, secure a refund, not as a penalty but as liquidated damages to the Department, or such other remedy or remedies as the Department deems appropriate. 13 Section 26.55 Counting DBE Participation TxDOT will count DBE participation toward overall and contract goals as provided in 49 CFR 26.55. The district will perform CUF reviews on contracts that have a DBE goal. A CUF review will be performed on DBEs listed on the approved contract commitment using the Commercially Useful Function (CUF) Project Site Review checklist. If needed to verify a CUF, obtain a copy of the subcontract agreement for clarification regarding the DBEs contractual responsibilities. BOP Office will perform the CUF reviews on DBE suppliers. For non-supplier DBEs listed on the contract DBE commitment working on the project site and associated project specific locations, complete the checklist as follows: 1. Complete the Initial checklist as soon as possible after the DBE's commencement of its work. 2. Monitor the DBE's performance and conduct additional reviews when the DBE's work performance brings into question whether the DBE meets CUF requirements. 3. If Information obtained Indicates possible noncompliance with the CUF requirements, contact BOP Office for a final determination. In order to provide consistent interpretations statewide, BOP Office will make final negative CUF determinations and provide guidance and assistance for CUF reviews. For trucking firms TxDOT will count DBE goal credit as follows: A DBE trucking firm (including an owner operator who is certified as a DBE is considered to be performing a CUF when the DBE is responsible for the management and supervision of the entire trucking operation on a particular contract and the DBE itself owns and operates at least 1 fully licensed, insured, and operational truck used on the contract. (a)The Contractor receives credit for the total value of the transportation services the DBE provides on a contract using trucks it owns, insures, and operates using drivers it employs. (b)The DBE may lease trucks from another DBE firm, Including an owner operator who is certified as a DBE.The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the Contract. (c)The DBE may also lease trucks from a non-DBE firm, including from an owner-operator.The DBE who leases trucks from a non-DBE is entitled to credit for the total value of transportation services provided by non-DBE lessees not to exceed the value of transportation services provided by the DBE-awned trucks on the contract.Additional participation by non-DBE lessees receive credit only for the fee or commission it receives as result of the lease arrangement 14 (d)A lease must indicate that the OBE has exclusive use of and control over the trucks giving the DBE absolute priority for use of the leased trucks. Leased trucks must display the name and identification number of the DBE. (68 FR 35554, June 16, 20031 Use Of Joint Checks With department approval, the use of joint checks between a prime contractor and a DBE subcontractor is allowed. The new DBE Special Provision Section 1.A.5.d.states the following regarding the use of joint checks: "if the Contractor chooses to assista DBE tin»,other than a manufacturing material sup Her or regular dealer,and the DBE firm accepts the assistance, the Contra%r may act solely as a guarantor by use of a two-party check forpa)rment of materials to be used on the projectby the DBE. The material supplier must invoice the DBE who will present the invoice to the Contractor. The Contractor may Issue a Joint check to the DBE and the material supplier and the DBE firm must issue the remittance to the material supplier. No funds shall go directly from the Contractor to the material supplier. The DBE firm may accept or reject this joint checking arrangement The Contractor must obtain approval from the Department prior to Implementing the use of joint check arrangements with the OBE.Submit to the Department; Joint Check Approval Form 2178 for requesting approval, Provide coples of cancelled joint checks upon request No DBE goal credit will be allowed for the cost of OBE materials that are paid by the Contractor directly to the material supplier." Procedures- For all federal-aid contracts, review and approve the use of joint checks prior to their use. Districts should verify that the DBE subcontractor is responsible for ordering, scheduling delivery and issuing payment for the materials. Prime contractor requests for joint check approval must be submitted to the Area Engineer on Form 2178, DBE Joint Check Approval - Attachment 8. The Department will expedite approval or denial of the use of DBE joint check agreements to ensure timely delivery of materials. Reasons for denial include, but are not limited to, the prime contractor's insistence on the joint check arrangement and failure of all parties to agree to the arrangement(only the DBE or the supplier may request the use of a joint check). Obtain coples.of cancelled joint checks as necessary to verity that the joint checks have passed through the DBE. Bank images are an acceptable method of review. Review the joint check agreements as necessary to ensure that a three party arrangement exists. 16 Material cost paid by the prime contractor directly to the material supplier Is not allowed for DBE goal credit and may cause the denial of DBE goal credit for all work performed by the DBE subcontractor. SUBPART D—CERTIFICATION STANDARDS TxDOT will use the certification standards of Subpart D of Part 26 to determine the eligibility of firms to participate as DBEs In DOT-assisted contracts. To be certified as a DBE, a firm must meet all certification eligibility standards. We will make our certification decisions based on the facts as a whole. For information about the certification process or to apply for certification,firms should contact: The BOP Office,125 E. 11N Street,Austin,Texas 78701,Toll Free 1.866.480-2518 Our certification application forms and documentation requirements are found in the attached TUCP Standard Operating Procedures (SOP) at Attachment 0. SUBPART E—CERTIFICATION PROCEDURES TxDOT is a member of the Texas Unified Certification Program(TUCP)].The TUPC will meet all of the requirements of this section. A description of the TUCP Memorandum of Agreement(MOA) is found at Attachment 10. Withdrawal of DBE Application:TxDOT will follow the procedures under the TUCP for withdrawal DBE Application. A DBE may withdraw their application prior to a certification decision being rendered by TxDOT.TxDOT will acknowledge the DBE request for withdrawal of DBE Application by certified letter. The DBE may not reapply for certification for a period of 12 months from the date of receipt of TxDOT's letter, this withdrawal may not be appealed to US DOT. Voluntary Surrender of Certification:TxDOT will follow the procedures under the TUCP for surrender of DBE Certification.A DBE may surrender their certification and TxDOT will acknowledge the DBE's request for surrender of their certification by certified letter. The DBE may not reapply for certification for a period of 12 months from the date of receipt of TxDOT's letter. This voluntary surrender may not be appealed to US DOT. Section 26.83 Procedures for Certification Decisions For procedures for the certification decisions see the attached TUCP Standard Operating Procedures (SOP) at Attachment 9. 16 TxDOT Is one of six certifying agencies in Texas. The six certifying agencies have agreed by Memorandum of Agreement that TxDOT will be responsible for all highway construction industry DBE applications, Annual Affidavits, three-year on-site review, and decertification if applicable. TxDOT will ensure that the decision in a proceeding to remove a firm's eligibility (decertification) is made by personnel that did not take part in actions leading to or seeking to implement the proposal to remove the firm's eligibility and are not subject, with respect to the matter, to direction from personnel who did take part in these actions. SUBPART F—COMPLIANCE AND(ENFORCEMENT Section 26.109 information, Confidentiality, Cooperation and Intimidation or Retaliation TxDOT will not release information that may be reasonably construed as confidential business information to any third party without the written consent of the firm that submitted the Information. This includes applications for DBE Certification and supporting documentation. TxDOT will keep the identity of complainants confidential at their election, however complainants will be advised that in some circumstances,failure to waive the privilege will result in the closure of the investigation or proceeding or hearing. Federal Aviation Administration (FAA)follows the procedures of 14 CFR part 16 with respect to confidentiality of information and complaints. All participants in the Departmenfs DBE Program (including but not limited to, recipients, DBE firms and applicants for DBE certification, complainants and appellants and contractors using DBE firms to meet contract goals) are required to cooperate fully and promptly with DOT and recipient compliance reviews, certification reviews, Investigation and other request for Information. Failure to do so shall be a ground for appropriate action against the party Involved. if you are a recipient, contractor, or any other participant in the program you must not intimidate, threaten, coerce, or discriminate against any individual or firm for the purpose of interfering with any right or privilege secured by this part or because the individual or firm has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part. if you violate this prohibition, you are in noncompliance with this part. Records must be retained for a period of 3 years following completion of the contract work, and shall be available at reasonable times and places for inspection by authorized representatives of the Department or the DOT. Provide copies of subcontracts or agreements and other documentation upon request. 17