Loading...
CONTRACT FOR OPEN SPACE LAND '('~~ENT o~ it' n~~ ~~~ +o~ ~. * ~u~O~~~ * % \~ 11111111 ~/ O)3A:lO ",...'00 DEiilARTMENT OF HOUSING AND URBAN JACKSONVILLE AREA OFFICE PENINSULAR PLAZA 661 RIVERSIDE AVENUE JACKSONVILLE, FLORIDA 32204 lEVELOPMENT REGION IV Peachtree-Seventh Building SO Seventh Street, N.E. Atlanta, Georgia 30323 September 1, 1972 IN REPLY REFER TO: 4.6 G Honorable H. Everett Hougen Mayor, City of Clearwater Post Office Box 4748 Clearwater, Florida 33518 Dear Mayor Hougen: Subject: Contract for Open Space Land Proje ct No. FL-1020-0S Enclosed herewith for your records is one fully-executed counterpart of the above-identified Contract. Sincerely, ~~~ri':!7f- Area Counsel Enclosure ~ -cf . ' . \, " I I l UNITED STATES OF AMERICA DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT CONTRACT FOR GRANT TO ACQumE AND/OR DEVELOP LAND FOR OPEN SPACE PORPOSES . UNDER TITLE VII OF THE HOUSING ACT OF 1961, AS AMENDED PART I Projeot No. FL-I020-0S Contraot No. FL-I020-0S(G) THIS AGREEMENT, oonsisting of this Part I and the Terms and Conditions (Form BUD-3180(b) , dated 6-69) forming Part II hereof (whioh Parts, together, are herein oalled the "Contraot"), effeotive on the date hereinbelow set out, by and between CITY OF CLEARWATER, FLORIDA (herein oalled the "Publio Body") and the United States of Amerioa (herein oalled the "Government"), WITNESSETIr: In oonjideration of the mutual oovenants, promises, and representations oontained nerein, the parties hereto do agree as follows: SEC. 1. PORPOSE OF CONTRACT The purpose of this Contraot is to provide Federal finanoial assistanoe to the Publio Body in the form of a grant of Federal funds (herein oalled the "Grant") under Title VII of the Housing Aot of 1961, as amended, for the purpose of oarrying out a oertain open spaoe land projeot (herein oalled the "Projeot") and to state the terms and oonditions under whioh suoh assistanoe will be extended. SEC. 2. 'l!E[E PROJECT (a) The Publio Body agrees to undertake, oarry out and oomplete: (1) The aoquisition of fee simple title to two non-oontiguous traots of land, identified in Exhibit "A" as MoMullen Park Property and Turner Park Property, both traots being looated in the City of Clearwater, County of Pinellas, State of Florida; and (2) The development of one major reoreation oomplex whioh will inolude oonstruotion of lighted tennis oourts, basketball oourts, horse- shoe pits, shuffleboard courts, multi-purpose field and playground area, on a traot of land leased for this purpose identified in Exhibit "A" as the North Greenwood Reoreation Complex, said traot being looated in the City of Clearwater, County of Pinellas, State of Florida. (b) The Publio Body agrees to retain said land aoquisitions for permanent open spaoe purposes, and the open spaoe use or uses of said land shall be for park and reoreational purposes, oonservation of land and other natural resouroes, or historio or soenio purposes. The Publio Body also agrees to retain its leasehold interest in the Greenwood Reoreation Complex oonsistent with the terms of that lease for a period of not less than 25 years, and to utilize this oomplex for park and reoreational purposes during this period of time. ./ )~ OJ g: 00 .. 0 ~ , ~ I I " I . , 2 SEe. 3. THE GRANT The Government agrees to make a grant to the Public Body to assist it in carrying out the Project. The grant shall in no event exceed the lesser of (i) 50 percent of the eligible Project costs, not including the cost of relocation payments and assistance, as determined by the Government, and the Government's share of the cost of relocation payments and assistance provided by the Public Body in connection with the Project as specified in Section 4 of the Contract, or (ii) $151,000. SEe. 4. RELOCATION PAYMENTS The Public Body agrees to make relocation payments and payments for eligible expenses incidental to transfer of title and condemnation litigation, .and to provide relocation assistance to or on behalf of eligible displacees in accordance with and to the full extent permitted by the regulations or other requirements of the Secretary and within the budgetary limits of the Contract. Notwithstanding any other provision of the Contract, the Government shall provide a Grant to fund the first $25,000 of the costte the Public Body if providing such payments and assistance for each eligible displacee, pursuant to such regulations or other requirements, displaced prior to July 1, 1972. Costs of the Public Body for providing such payments and assistance in excess of said $25,000 per eligible displacee on account of displacement occurring prior to July 1, 1972 and all costs of the Public Body for providing such payments and assistance on account of displacement occurring on or after July 1, 1972, shall be treated and funded as are other eligible Project Costs. Grant funds from the total amount thereof set forth in Section 3 of the Contract, used to fund the cost of relocation payments and assistance in accordance with this Section of the Contract shall not without the prior written consent of the Secretary, exceed $ NO~ L SEC. 5. TIME OF PERFORMANCE The Public Body agrees that it will complete the acquisition of the open space immediately following the date of execution of the Contract and will complete the development of the open space within 12 months following the date of execution of the Contract. SEe. 6. COUNTERPARTS OF THE CONTRACT This Contract may be executed in two counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. SEe. 7. CHANGES APPLICABLE TO PART II HEREOF The following changes are hereby made in the attached Terms and Conditions designated Part II hereof: In S~ 106(B) - La~or and Construction Provisions, Competitive Bidding - of the Terma and. Cbt!d.1ti6nsi;HI'~!IIff'I''1'!''~i 'bf"'this Contract, the amount of $2,500 should be deleted wherever it appears and the amount $10,000 substituted in lieu thereof. . ' I I 3 SEC. 8. SPECIAL CONDITIONS Deed Restriction; Recordation. The Public Body agrees to have prepared and recorded in the appropriate Land or Deed records for each open space site contained in this project an appropriate restriction indicating that the site or any interest therein may not be sold, leased, or otherwise transferred without the prior written approval of the Secretary of Housing and Urban Development, his designee, or any successor thereto. This restriction may be recorded in the Public Body's deed or deeds to the open space site or in a separate instrument, provided that the method used gives constructive notice (or the equivalent) of the restriction. SEC. 9. COMPENSATION TO GOVERNMENT FOR ITS AUDITS AND INSPECTIONS The Public Body will compensate the Government for its inspections and audits, provided for in Sec. 103(B) of Part II of this Contract, a fixed fee in the amount of $2,000. The fixed fee shall be payable at the time the first requisition for a Grant Payment is approved by a deduction of the entire amount of the fixed fee from the first Grant Payment to the Public Body: Provided, that in the event the Grant amount authorized under Section 3 hereof with respect to the actual cost of the Project is increased, the additional fixed fee payable thereby shall be deducted from the next Grant Payment made to the Public Body. SEC. 10. ASSURANCES Prior to entering into the Contract the Public Body provided the following to the Government: (a) Assurances that (i) in acquiring real property it will be guided to the greatest extent practicable under State law, by the land '--_ acquisition policies in Section 301 and the provisions of Section 302 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and (ii) property owners will be paid or reimbursed for necessary expenses as specified in Sections 303 and 304 of said Act. . :' ! !..~t~m~' ;:%~hr'f.~i. . I ,-- ..---...--..--.-...._._.__.. _....,0.-.."""'-'-.>...........,.. _.._., ,~__",,'__, "'"'' .~ I 4 IN WITNESS WHEREOF, the Publio Body has oaused this Contraot to be duly exeouted in its behalf and its seal to be hereunto affixed and attested; and, thereafter, the Government has oaused the same to be duly exeouted in its behalf this 2l)th day of August , 1972. (SEAL) ( Signa ture ) By OA;.:~~..,.,..V.~....... . ._ '.Si~~e) .~ , " - ~ - ~ :.- -' " LJ~ ':,::. ,-'~ 'R..)ct.--Whi.t'ehe-~. City C11rk .r:(Typec.N~.a.nd Title .,? M. R. Stierheim, City Manaller (Type ~e and Title) UNITED STATES OF .AMERICA Secretary cf Hcusin and Urban De~nt I ~ Jd;~ ~ Area Direotor i ! I I L__ . -,,", .r ,.~ I EXHIBIT "A" I '. .' '" McMULLEN PARK PROPER TY A survey of the South one -half of the Southwe st one -quarter of the Southeast one-quarter of Section 18, TO\vnship 29 S" Range 16 E, being m.ore particularly described as follows: Beginning at the S, W. corner of the S, W. 1/4 of the S. E. 1/4 of Section 18, Township 29 S, Range 16 E, Pinellas County, Florida. Run thence North 0057'49", East 664. 151 to the centerline of Magnolia Drive, thence run South 89006'23" East 1333,44' to a point in the Forty-Acre line of said Section 18, thence run South 1001'54" West 667. 77' along the Forty-Acre line to a point in the South line of said Section 18, run thence North 88057'02" West 1332.65' to the Point of Beginning, I I Ii Ii TURNER PARK PROPERTY I I I 'I Ii ii 'i ~ Ii ~' ~ ! West 1/2 of the Southwest 1/4 of the Northeast 1/4 of Section I, Township 29 South, Range 15 East, Pinellas County, Florida, LESS existing road rights-of-way and LESS the West 163 feet of the South 220.00 feet; being mbre particularly described as follows: from the Center of Section 1, Township 29 South, Range 15 East, run thence South 89006'54" East 672.411 along the East- West Centerline to a Point, run thence North 0022'42" West 50,00' to the Point of Begining. Run thence North 0022'42" West 1247.40' to a Point, said Point being 33.00' South of the Centerline of Montclair Road. Run thence North 89034'27" West 640.45' parallel to said centerline of Montclair Road to a Point, said Point being 30.00' East of the North-South Centerline of said Section; said Centerline is also the Centerline of Hercules Avenue. Run thence South 0017147" East 1022.22' parallel to the Centerline of said Section to a Point, run thence South 89006'54" East 163.00', run thence South 0017'47" East 220.00' to a Point 50.00' North of the East-West Centerline of said Section 1, run thence parallel to said East- West Centerline of Section I, South 89006'54" East 479,33' to the Point of Beginning. 0, t !.! ,. , ,. ~, ..~.. I.';'; NORTH GREENWOOD RECREATION COMPLEX From Southeast corner of Lot 11, Block B-1 of Springfield Sub. No.2 as recorded in Plat Book 4, Page 23 of Public Records of Pincllas County, Florida, run North 13 feet more . or less to North line of Palmetto Street for P.O.B., Thence North 627 feet M,O.Le. thence run East 60.0 feet, thence run North along the East right of way line of Douglas Avenue as recorded in O.R. Book 2849, Page 296 of said public records, 786.04 feet to South line of Russell Street; thence run East ... . ~~ong South line of Russe.llStreet 405 feet MIO.L., thence ~un South 280 feet, thEnce run East 200 feet to West line~o~ Holt Avenue, thence run South along said West line of Holt Avenue 1120.0 feet WeO.L. to North line of PalmettO,Str.eet, thence West along North line of Palm~tto street 670 feet lil.0.L.~ to point of beginning, less South 450 feet for C1earwnter--B-c;JpJ:'chcnsive Junior HiGh School and North 325 feet M.DeL. of ERSi 3$Qfeet M.O.L. of South 1120 feet. J L , \ HUD-3180b (6.69) U,S, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT OPEN SPACE LAND PROGRAM CONTRACT FOR GRANT TO ACQUIRE AND/OR DEVELOP LAND FOR OPEN-SPACE PURPOSES UNDER TITLE VII OF THE HOUSING ACT OF 1961, AS AMENDED Part II Terms and Conditions --------------------------- -- SEC, 101. USE OF CERTAIN TERMS Except where the context clearly indicates otherwise, the following terms, as used herein, shall have the meanings )lscribed to them in this Section: (A) The capitalized term "Secretary" means the Secretary of Housing and Urban Development or the person authorized to act on his behalf. (B) The term "Contract" means this Contract between the Government and the Public Body, and includes Parts I and II and any additional document or documents incorporated herein by special reference, as well as any amendment. (C) The term "Application" means the written application for the Grant by the Public Body, including any re- visions thereto, together with all explanatory, supporting, or supplementary documents filed therewith, (D) The term "land" means the interest or interests in real property acquired or to be acquired and/or developed by the Public Body as set out in Section 2(a) of Part I of this Contract and shall include a fee interest or such lesser interests as therein contemplated, (E) The term "Project" means the undertaking and carrying out to completion of the acquisition and/or develop- ment of land for open.space uses as set forth in Section 2(b) of Part I of this Contract, SEC, 102. ACCOMPLISHMENT OF PROJECT The Public Body will commence and carry out the Project with all practicable dispatch, in a sound, economical, and efficient manner, in accordance with the Application and the provisions of this Contract, and will initiate and complete the Project within the time limit specified in Section 5 of Part I of this Contract, Such term may be extended with the written consent of the Secretary. The Public Body will carry out the Project in compliance with all requirements imposed by or pur. suant to regulations of the Secretary effectuating Title VI of the Civil Rights Act of 1964 (78 Stat. 241,252). The Public Body agrees not to discriminate upon the basis of race, creed, color, or national origin in the program or activity for which the Public Body receives financial assistance under this Contract. The United States shall be deemed to be a beneficiary of these pwvi~on' bo.h lo,..d in i" own righ...d 01.. 10' .h. pu<po", 01 pro.oo.ing .h. in"_' 01 .h. oommuoity .nd otl", pmi.., puhli. 0' po,,'" in who", 10"", 0,10' who", h.n.fi. till' pwvisiou h.. boon p,ovid.d .od,}mll b". tb. ,igb., in .b, ov.n' of any breach of this provision, to maintain any actions or suits at law or in equity or any other proper proceedings to enforce the curing of such breach. - 1 - HUD-3180b (6.69) I I SEe. 103. PROVISIONS RELATING TO ADMINISTRATION (A) Books and Records. The Public Body will keep full and accurate books and records with respect to all matters covered by this Contract, including books and records which permit a speedy and effective audit, and will fully disclose: (1) Adequate title evidence in the form of title policies, Torrens certificates, or abstracts, and attomeys' opinions relating to the land or interests in land acquired by the Public Body under this Project; (2) The amount and disposition of both Federal and non-Federal funds which are provided for the Project; (3) All items of cost chargeable or which are proposed to be charged to the total cost of the Project; (4) All Project work and undertakings and all contracts which are entered into hy the Public Body pertaining thereto; (5) The families, individuals, and business concerns which are displaced in the carrying out of the Project, the pertinent facts concerning their relocation, and the making of relocation payments therefor; and (6) All proceedings which are taken by the Public Body with respect to any of the preceding items in this Section. (B) Inspections and Audits, The Public Body will, at any time during normal business hours, and as often as the Secretary or the Comptroller General of the United States may deem necessary, permit the Secretary and the Comptroller General to have full and free access to all of its books and records with respect to the matters mentioned in subsection (A) of this Section, and will permit the Secretary and the Comptroller General to audit, examine, and make excerpts or transcripts from such books and records, and to review, inspect, and make audits of all Project work, contracts, invoices, materials, pay- rolls, records of personnel, conditions of employment, books of accounts, and other documentary data pertaining to such matters, (C) Reports and Information. The Public Body will, at such times as the Secretary may require,rumish him with periodic reports and statements, and other documentary data and information, as he may request, pertaining to the various matters covered by this Contract. SEC. 104, LAND PROVISIONS (A) General Requirements Concerning Land. The Public Body shall: (1) Take all necessary steps to remove or abrogate all legally enforceable provisions pertaining to the re- striction of the use of the land it is acquiring and/or developing, upon the basis of race, creed, color, or national oflgm. (2) Include in every agreement, lease, conveyance, or other instrument whereby the land is disposed of, an affirmative covenant bindi~ 011 the contractor, lessee, grantee, or other party to such instrument and on the suc- cessors in interest to such contractor, lessee, grantee, or other party that there shall be no discrimination upon the basis of race, creed, color, or national origin in the use or occupancy of the land. The Covenant shall recite that the United States is a beneficiary of the covenant and entitled to enforce it, (3) Not sell, I~ase, or otherwise dispose of the land except with the prior written approval of the Secretary, (4) Not voluntarily create, cause, or allow to be created any debt, lien, mortgage, charge, or encumbrance against any of the land which in any way will impair or otherwise adversely affect the preservation of said land for the use or uses set out in Section 2(b) of Part I of this Contract. - 2- I I HUD-3180b (6-69) ,- ' (5) From time to time duly pay and discharge, or cause to be paid and discharged when the same become due, all taxes, assessments, and other governmental charges which are lawfully imposed upon any of the land and which if unpaid may by law become a lien or charge upon said land and thereby impair or otherwise adversely affect the holding of said land for the use or uses set out in Section 2(b) of Part I of this Contract, (6) Faithfully observe and conform to all valid requirements of any governmental authority relative to the land and all covenants, terms, and conditions applicable to said land. (B) Fair Market Value, The Public Body shall take all appropriate steps to assure that the consideration it pay" for the land does not exceed fair market value at the time of acquisition, If the Secretary determines that the consideration paid by the Public Body is in excess of fair market value, for purposes of computing the amount of the Grant, the acquisition cost shall be reduced by the amount of the excess, (C) Special Provisions Relating to Sale or Lease of Land, If the Project proposes that thc Public Body lease or sell all or part of the land, the Public Body must first obtain written approval of the Secretary before such leasing or salc is under- taken. Approval will be given only if such leasing or sale is consistent with thc Project and adequate controls are embodied in the lease or deed to assure the preservation of the open-space use or uses of such land as set out in Section 2(b) of Part I of t!Jis Contract, (D) Use of Land (1) No change in the use of the land to a use other than the open-space uses set out in Section 2(b) of Part I of this Contract will be permittcd without the prior written approval of the Secretary, Before such approval will bc given, the Public Body must demonstrate to the Secretary's satisfaction that: (a) The conversion is essential to the orderly development and growth of the urban arca involved: (b) The conversion is in accord with the cumprehensively planned developmcnt of the urban area; and (c) The open-space land is being or will be replaced, without cost to the Federal Government, by other open-space land of at lcast equal fair market value at the time of conversion, and of as nearly as fcasible equivalent usefulness and location (2) The Public Body shall not discriminate upon the basis of race, creed, color, or national origin in the sale, lease, or rental or in the use or occupancy of the land or any improvements erected or to be erected thereon, or any part thereof, (3) The Public Body shall not restrict the use of the land, as developed, on the basis of place of residence, except that a reasonable fee charged nonresidents over and abovc any fee that may be charged rcsidents shall not be interpreted as a restriction of the use of such land. (E) Transf er of Public Body's Interests in Land to Another Public Body, Before the Public Body transfers its interests in the land to another Public Body, it shall require its transferee to enter into a contract with the Secretary agreeing in writing to bc bound by all of the applicable terms and conditions of this Contract. SEe. lOS, PAYMENT OF GRANT (A) Advance or Progress Payments. Under or subject to such conditions as the Government may, in writing, specify _ which are not inconsistent with applicablc law, the Government may, in its discretion, make advance or progress payments to tilt;. PuhlicBody on account of the Grant, or on account of the increase with respect to the Grant provided for in Section 4 of Parftof this Contract, at such time or times prior to the completion of the Project and the final determination of the total -;\ - HUD.3180b (6-69) , I ~ cost thereof as, in view of the status of the Project and the matters relative thereto, the Government may deem appropriate, : ' but no such advance or progress payment will be made unless and until the Public Body shall have filed its written request with the Secretary for such advance or progress payment: Provided, That the Public Body is not in default on any of the terms of this Contract. The Public Body shall deposit such advance payment funds in a bank or banks which are members of the Federal Deposit Insurance Corporation. (B) Requisition for Grant Payment. The Public,Body shall file its requisition for payment of Grant, including the increase provided for in Section 4 of Part I of this Contract, on a form or forms prescribed by the Secretary. Such requisition shall be accompanied by the Public Body's certification of purposes, demonstrating the need, at the time, for the funds requisitioned; that the amount sought is reasonable; and that the purposes for which it proposes to expend the funds are within the purview of this Contract. (C) Acquisition, Development, and Demolition Costs. Payment of the Grant provided for in Section 3 of Part I of this Contract shall be based on acquisition, demolition, and development costs which have been determined by the Secretary as eligible Project costs, in the light of applicable F ederallaw and in accordance with the Secretary's rules and regulations implementing that law, The acquisition costs shall not include (I) ordinary State or local governmental expenses; (2) costs of acquiring land located outside the urban area for which the Public Body exercises (or participates in the exercise of) open-space responsibilities; (3) the cost of land acquired prior to the notification of the Public Body by the Secretary of his approval of the Application or of the acquisition of such land; or (4) the cost of land acquired with the assistance of funds received di- rectly or indirectly from the Government, or any agency or instrumentality thereof, other than under the terms of this Con- tract. The development cost shall include only those costs which are necessary to prepare the land for open.space use and shall not include (I) the cost of development undertaken prior to the notification of the Public Body by the Secretary of his approval of the Application or of the development of the land or (2) the cost of specialized major recreation facilities. The demolition cost shall include only those costs which are necessary for the demolition and removal of buildings and structures from developed land acquired as part of the Project, SEC. 106. LABOR AND CONSTRUCTION PROVISIONS (A) Contract and "Force Account" Work, The Public Body may elect to carry out any necessary demolition, con- struction, or development activities as a part of the Project by utilization of its own employees or it may have such work done under written contracts let by it, Any contracts entered into for Project work shall contain appropriate provisions to require compliance with all applicable Federal laws and regulations pertaining to such contracts, to the work to be performed there- under, and to the persons employed in the carrying out of such contracts. (B) Competitive Bidding. The Public Body will give full opportunity for free, open, and competitive bidding for each contract to be let by it calling for construction, demolition, or other similar work, as a part of the Project, or for the furnishing of any materials, supplies, or equipment for or use on, the Project and will give such publicity to its advertisements or calls for bids for each such contract as will provide adequate competition; and the award of each such contract, when made, will be made by it as soon as practicable to the lowest responsible bidder: Provided, That in the selection of such materials, equipmcnt, or supplies, the Public Body may, in the interest of standardization or ultimate economy, if the advantage of such standardization or such ultimate economy is clearly evident and an appropriate provision for such action is included by it in the proposed contract documents upon which bids are invited, award a contract to a responsible bidder other than the lowest in price: Provided further, That purchases of such materials, equipment, or supplies in amounts of $2,500 or less, and con- tracts in amounts of $2,500 or less calling for construction, demolition, or other similar work, as a part of the Project, may, except where contrary to the requirements of State or local law , be made from time to time by the Public Body without negotiation or competitive bidding and without observance of the other provisions of this subsection. (C) Provisions To Be Included in Certain Contracts. Before the Public Body recei,'es bids or proposals for, or other-_ wise negotiates for, a proposed contract which calls for the performance of any work on the Project which will entail, for SUdl work, the employment by the contractor or his subcontractors of laborers or mechanics, the Public Body shall include inUle proposed contract documents appropriate wage schedules (including applicable wage determinations of the Secretary of Lahor, - 4- I ( HUD.3180b (6-69) . ,. '~nited States Department of Labor) and other provisions which are consistent with the provisions embodied in that document entitled "Federal Labor Standards Provisions" attached hereto marked HUD.3200 and made a part hereof. Such schedules, wage determinations, and other prm'isions, as included in such proposed contract documents, shall also be included in the contract documents as executed. The Public Body will include in each contract mentioned in the preceding sentence of this subsection an appropriate provision requiring the contractor to insert in each of his subcontracts which will entail the employ- ment by such subcontractor of laborers or mechanics, as aforesaid, wage and other provisions which are consistent with such contractor's contract with the Public Body. (D) State or Local Laws Concerning Wage Rates for Laborers and Mechanics, If State or locallaw8 require that laborers or mechanics who are employed by the Public Body's contractors, or by such contractors' subcontractors, in the development of the Project, be paid not less than the wages which are established pursuant to such laws and if such wages so established are higher than the wages which are determined by the Secretary of Labor, United States Department of Labor, pursuant to the aforesaid Davis-Bacon Act, to be the wages prevailing in the locality in which the Project is situated, nothing in this Contract is to be construed as intended to relieve the Public Body of its obligation, if any, to require payment of such higher wages. (E) Equal Employment Opportunity (1) Activities and Contracts Not Subject to Executive Order 11246. In the carrying out of the Project, the Public Body will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The Public Body will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to race, color, religion, sex or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of payor other forms of compensation; and selection for training, including apprenticeship, The Public Body agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the Government setting forth the provisions of this nondiscrimination clause, The Public Body will, in all solicitations or advertisements for employees placed by or on behalf of the Public Body, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin, The Public Body will incorporate the foregoing re- quirements of this subparagraph (1) in all of its contracts for Project work, except contracts governed by subparagraph (2) of this Section 106(E) and contracts for standard commercial supplies or raw materials, and will require all of its contractors for such work to incorporate such requirements in all subcontracts for Project work, (2) Contracts Subject to Executive Order 11246. The Public Body hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in the regula- tions of the Secretary of Labor at 41 CFR Chapter 60, which is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contraet, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insur- ance, or guarantee, the following equal opportunity clause: During the performance of this contract, the contractor agrees as follows: (1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor ~ill take affirmative action to insure that applicants He employed, and that employees are treated during employment without regard to thrir ran', color, religion, sex, or national origin, Such action shall include, but not be limited to, the following: rmploy- ment, upgrading, demotion, or transfer.; recruitment or recruitment advertising; layoff or termination: rates of payor other forms of compensation; ~nd selection for training, including apprenticeship. The contractor agrcrs to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the Public Body setting forth the provisions of this nondiscrimination clause, HUD-3180b (6.69) I J -f (2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of. the contractor, state that all qualificd applicants will receive consideration for employment without regard to racc, color, religion, sex, or national origin, (3) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agrecment or other contract or understanding, a notice to be provided advising the said labor union or workers' representative of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (4) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulalions, and rcll'vant orders of the Secretary of Labor, (5) The contractor will furnish all information and reports required by F:xecutive Order 11246 of Septembcr 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor or the Secretary of Housing and Urban Development, or pursuant thereto, and will permit access to his books, records, and ac- counts by the Public Body, the Secretary of Housing and Urban Development, and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (6) In the e\"ent of the eontractor's noncompliance with the nondiscrimination clauses of this contract or with any of thc said rules, regulations. or orders, this contract may be canceled, terminated, or suspended in wholc or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of Septem- ber 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 1] 246 of September 24, 1965, or by rule, regulation, or order of the Secretary of LalJOr, or as otherwise pro- vided by law. (7) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 196.5, so that such provisions w ill be binding upon each subcontractor or vendor, The con- tractor will take such action with respcct to any wbcontract or purchase order as the Public Body or the Sec- retary of !lousing and Urban [)nclopment may dirf'ct as a means of enforcing such provisions, including sanc- tions for noncompliancc: Provided, however, That, in III(' event the contractor becomes involved in, or is threatl'ned with. litigation with a subcontractor or vendor as a result of such direction by the Public Body, the contractor lIIay rl'lluest tht' I nili'd ~tall's to enter into "uch litigation to protect the interests of the Lnited States. The Public Body furtlwr agret's that it will be bound by the above equal opportunity clause with respect to its own empJO\lllent practice" whcn it participate" in f('dtTally assislf,d construetion work: l'rov-ided, That if thc Public Body so participating is a :'tate or local govefllnH'nt. tllf' above equal opportunity clause is not appJi::,,;., to an~- agency, instnlllH>ntality or subdiv'ision of slleh go\"ernn)('nl which does not participate in work on or unller the contract. The Puhlic Body agrees that.it will assist and eooperall' actively with the Seeretary of Housing and Urban Development and the Secretary of Labor in ohtaining- tIlE' compliance of contractors and subcontractors with the equal opportunity clause and the rules, rt'gulalion", and relevant orders of the Secretary of Labor, that it will furnish the Secretary of lIousing and Urhan Dewlopmf'nt and the Secretary of Labor stich information as they lllay require for the supervision of such compliance, and that it will otherwise assist the Secretary of lIous- ing and Urban Development in the dischargt' of his primary responsibility for seeuring complianC'f'. - 6- I I HUD-3180b (6.69) \.. J The Public Body further agrel's that it will refrain from entering into allY contract or contract modifica- tion subject to Executive Order II:n6 of ::\eptember ~4, 1 ()()3. with a contractor debarred from, or who has not demonstrated eligibility for. Covcrnmcnt contracts and fedrrally assi"tcd construction contracts pursuant to the Executivc order and will carry out such sanction" and penaltirs for violation of the equal opportunity clause as may br imposed upon contractors and "ubcontradors by the Secrctary of Housing and Urban De- velopment or thc ::\t'crdary of Labor pursuant to Part II, Subpart D of the Exccutivr order, In addition, the Public Body a~'l'ees that if it fails or rrfuses to comply with these undcrtakings, the Secretary of Housing and 11rban Development may take any or all of the following actions: Cancel, terminate, or sllspend in whole or in part this grant contract; refrain from extending any further assistance to the applicant under the program with respect to which the failure or refusal occurred until satisfactory assurance of future compliance has been re- ceived from such Public Body; and rrfer tl\l' easc to the I>1'partll\l~llt 01'.1 u"titT for appropriate Irgal proceedings, '" DEFAULTS AND REMEDIES SEe, 107. (A) Trrmination or Suspension of Contrart. The Government may terminate or suspend this Contract at its dis- cretion upon the happening of any of the following: (I) The failure of thc Public Body to complete the Project within the time prescribed in Section 5 of Part I of this Contract; (2) The making of any misrepresentation by the Public Body in its Application or in the furnishing of any information to the Secretary; (3) The violation of any of the terms or conditions of this Contract; (4) Any event which makes the accomplishment of the Project by the Public Body impossible, improbable, infeasible, or iIIega!; or (5) The commencement of any litigation challenging the performance by the Puhlic Body of any of its duties or obligations which may jeopardize or adversely affect the Project, this Contract, or the Grant, (B) Forfeiture of Grant (I) If the Public Body should change the use of the land from the use or uses designated in Section 2(b) of Part I of this Contract without the prior written approval of the Secretary, or should it transfer its interests in the land to another Public Body without requiring the transferee to ext'eute the contract with the Secretary provided for by Section I04(E) of this Part II, the Public Body shall at the request of the Secretary rl'pay to the t;overnment the amount of the Grant. (2) For any other violation of any of the terms of this Contract, the Secretary may, in addition to such other remedies as may exist at law or in equity, require repayment of all or part of the G rant to the Government, (C) When Rights and Remedies Not Waived. In no event shall the making by the Government of any Grant paymrnt to the Public Body constitute or be construed as a waiver by the Government of any breach of covenant or any deCault which may then exist on the part of the Public Body, and the making of any surh payment by the Government while any such breach or default shall exist shall in no wise impair or prejudice any right or remedy available to the Covcrnment in resprct 01' such breach or default. - 7 - HUD-3180b (6-69) I I SEC. 108. MISCELLANEOUS PROVISIONS (A) Interest of Public Body Personnel and Other Local Public Officials. The Public Body shall adopt and enforce measures to assure that no member of its governing body and no other officer or employee of the Public Body and no member of the governing body or other public official of any other local public body in the urban area in which the Project is situated, who exercises any functions or responsibilities in connection with the carrying out of the Project, shall, prior to the comple- tion of the Project, voluntarily acquire any personal interest, direct or indirect, in any property included in the Project or in any contract or proposed contract in connection with the undertaking of the Project. If any such member, employee, or officer presently owns or controls, or in the future involuntarily acquires, any such personal interest, he shall immediately disclose such interest to the Public Body. Any member, employee, or officer who shall have or acquire such interest shall not participate in any action by the Public Body affecting the undertaking of the Project, unless the Public Body shall de- termine that, in the light of the personal interest disclosed, the participation of such individual in any such action would not be contrary to the public interest. The Public Body shall promptly advise the Secretary of the facts and circumstances con- ... cerning any disclosure made to it pursuant to this provision and the action taken by the Public Body upon being made aware of said facts and circumstances. (B) Interest of Certain Federal Officials, No Member of or Delegate to the Congress of the United States, and no Resident Commissioner, shall be admitted to any share or part of this Contract or to any benefit to arise from the same. (C) Bonus or Commission, The Public Body shall not pay any bonus or commission for the purpose of obtaining the Secretary's approval of the Application or any other approval by the Secretary which may be necessary under this Contract, (D) Government Not Obligated to Third Parties. The Government shall not be obligated or liable under this Con- tract to any party other than the Public Body. (E) How Contract Affected by Provisions Being Held Invalid, If any provision of this Contract is held invalid, the remainder of this Contract shall not be affected thereby if it is in conformity with the terms and requirements of applicable law. (F) Provisions Concerning Certain Waivers, Subject to applicable Federal law , any right or remedy which the Government may have under this Contract may be waived in writing by the Government by a formal waiver and either with or without the execution of an amendatory or supplementary agreement, if, in the judgment of the Government, this Contract, as so modified, will still conform to the provisions and requirements of applicable laws. 215395-P (Rev. 6.69) HUD-Wash,. D,C, - 8- I I H U D-32OO (8-691 U. S. DEPARTMENT OF HOUSING ANO URBAN DEVELOPMENT FEDERAL LABOR STANDARDS PROVISIONS 1, APPLICABILITY The Project or Program to which the work covered by this Contract pertains is being assisted by the United States of America and the following Federal Labor Standards Provisions are included in this Contract pursuant to the provisions ap- plicable to such Federal assistance, 2. MINIMUM WAGE RATES FOR LABORERS AND MECHANICS All laborers and mechanics employed upon the work covered by this Contract shall be paid unconditionally and not less often than once each week, and without subsequent deduction or rebate on any account (except such payroll deductions as are made mandatory by law and such other payroll deductions as are permitted by the applicable regulations issued by the Secretary of Labor, United States Department of Labor, pursuant to the Anti-Kickback Act hereinafter identified), the full amounts due at time of payment computed at wage rates not less than those contained in the wage determination decision of said ~~_~iefai-y of Labor (a copy of which is attached and herein incorporated by reference), regardless of any contractual re- lationship ~hich may be alleged to exist between the Contractor or any subcontractor and such laborers and mechanics. All laborers and mechanics employed upon such work shall be paid in cash, except that payment may be by check if the employer provides or secures satisfactory facilities approved by the Local Public Agency or Public Body for the cashing of the same without cost or expense to the employee. For the purpose of this clause, contributions made or costs reasonably anticipated under Section 1 (b) (2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of Section 5.5(a)(I)(iv) of Title 29, Code of Federal Regulations. Also for the purpose of this clause, regular contributions made or costs incurred for more than a weekly period under plans, funds, or programs, but covering the particular weekly period, are deemed to be constructively made or incurred during such weekly period. 3. UNDERPAYMENTS OF WAGES OR SALARIES In case of underpayment of wages by the Contractor or by any subcontractor to laborers or mechanics employed by the Contractor or subcontractor upon the work covered by this Contract, the Local Public Agency or Public Body in addition to such other rights as may be afforded it under this Contract shall withhold from the Contractor, out of any payments due the Contractor, so much thereof as the Local Public Agency or Public Body may consider necessary to pay such laborers or mechanics the full amount of wages required by this Contract. The amount so withheld may be disbursed by the Local Pub- lic Agency or Public Body, for and on account of the Contractor or the subcontractor (as may be appropriate), to the respec- tive laborers or mechanics to whom the same is due or on their behalf to plans, funds, or programs for any type of fringe benefit prescribed in the applicable wage determination. 4. ANTICIPATED COSTS OF FRINGE BENEFITS If the Contractor does not make payments to a trustee or other third person, he may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing fringe benefits under a plan or program of a type expressly listed in the wage determination decision of the Secretary of Labor which is a part of this Contract: Provided, however, The Secretary of Labor has found, upon the written request ofthe Contractor, that the applicable stand- ards of the Davis-Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. A copy of any findings made by the Secretary of Labor in respect to fringe benefits being provided by the Contractor must be submitted to the Local Public Agency or Public Body with the first payroll filed by the Contractor subsequent to receipt of the findings. -1. HUD.3200 (8-691 , I 5. OVERTIME COMPENSATION REQUIRED BY CONTRACT WORK HOURS STANDARDS ACT (76 Stat. 357-360; Title 40 V.S.c., Sections 327-332) (a) Overtime requirements. No Contractor or subcontractor contracting for any part of the Contract work which may require or involve the employment of laborers or mechanics, including watchmen and guards, shall require or permit any laborer or mechanic in any workweek in which he is employed on such work to work in excess of 8 hours in any calendar day or in excess of 40 hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times his basic rate of pay for all hours worked in excess of 8 hours in any calendar day or in excess of 46 hours in such workweek, as the case may be. (b) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (a), the Contractor and any subcontractor responsible therefor shall be liable to any affected employee for his un- paid wages. In addition, such Contractor and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic employed in violation of the clause set forth in paragraph (a),' in the sum of $10 for each calendar day on which such employee was required or permitted to work in excess of 8 hours or in excess of the standard workweek of 40 hours without payment of the overtime wages required by the clause set forth in paragraph (a). (c) Withholding for liquidated damages. The Local Public Agency or Public Body shall withhold or cause to be with- held, from any moneys payable on account of work performed by the Contractor or subcontractor, such sums as may admin. istratively be determined to be necessary to satisfy any liabilities of such Contractor or subcontractor for liquidated damages as provided in the clause set forth in paragraph (b). (d) Subcontracts, The Contractor shall insert in any subcontracts the clauses set forth in paragraphs (a), (b), and (c) of this Section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts which they may enter into, together with a clause requiring this insertion in any further subcontracts that may in turn be made. 6. EMPLOYMENT OF APPRENTICES Apprentices will be permitted to perform work covered by this Contract only under a bona fide apprenticeship program registered with a State Apprenticeship Agency which is recognized by the Bureau of Apprenticeship and Training, United States Department of Labor, or, if no such recognized Agency exists in a State, under a program registered with the Bureau of Apprenticeship and Training. The allowable ratio of apprentices to journeymen in any craft classification shall not be greater than the ratio permitted to the Contractor as to his entire work force under the registered program. Any employee listed on a payroll at an apprentice wage rate, who is not registered as above, shall be paid the wage rate determined by the Secretary of Labor, United States Department of Labor, for the classification of work he actually performed. The Contractor or subcon- tractor shall furnish the Local Public Agency or Public Body with written evidence of the registration of his program and ap- prentices, as well as of the appropriate ratios and wage rates for the area of construction, prior to using any apprentices on the contract work. 7. EMPLOYMENT OF CERTAIN PERSONS PROHIBITED No person under the age of sixteen years and no person who, at the time, is serving sentence in a penal or correctional institution shall be employed on the work covered by this Contract. 8. REGULATIONS PURSUANT TO SO-CALLED "ANTI-KICKBACK ACT' The Contractor shall comply with the applicable regulations (a copy of which is attached and herein incorporated by reference) of the Secretary of Labor, United States Department of Labor, made pursuant to the so-called "Anti-Kickback Act" of] une 13, 1934 (48 Stat. 948; 62 Stat. 862; Title 18 U.S.C., Section 874: and Title 40 U .S.C., Section 276c), and any amend- ments or modifications thereof, shall cause appropriate provisions to be inserted in subcontracts to insure compliance therewith -2- I I HUD-3200 (8-69) ",' by all subcontractors subject thereto, and shall be responsible for the submission of affidavits required by subcontractors there- under, except as said Secretary of Labor may specifically provide for reasonable limitations, variations, tolerances, and exemp- tions from the requirements thereof. 9. EMPWYMENT OF LABORERS OR MECHANICS NOT LISTED IN AFORESAID WAGE DETERMINATION DECISION Any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the Contract will be classified or reclassified conformably to the wage determination by the Local Public Agency or Public Body, and a report of the action taken shall be submitted by the Local Public Agency or Public Body, through the Secretary of Housing and Urban Development, to the Secretary of Labor, United States Department of Labor. In the event the interested parties cannot agree on the proper classification or reclassification of a particular class of laborers and mechanics to be used, the question accompanied by the recommendation of the Local Public Agency or Public Body shall be referred, through the Secretary of Housing and Urban Development, to the Secretary of Labor for final determination. 10. FRINGE BENEFITS NOT EXPRESSED AS HOURLY WAGE RATES The Local Public Agency or Public Body shall require, whenever the minimum wage rate prescribed in the Contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly wage rate and the Contractor is obligated to pay cash equivalent of such a fringe benefit, an hourly cash equivalent thereof to be established. In the event the interested parties cannot agree upon a cash equivalent of the fringe benefit, the question, accompanied by the recommenda- tion of the Local Public Agency or Public Body, shall be referred. through the Secretary of Housing and Urban Development, to the Secretary of Labor for determination. 11. POSTING WAGE DETERMINATION DECISIONS AND AUTHORIZED WAGE DEDUCTIONS The applicable wage poster of the Secretary of Labor, United States Department of Labor, and the applicable wage de- termination decisions of said Secretary of Labor with respect to the various classifications of laborers and mechanics employed and to be employed upon the work covered by this Contract, and a statement showing all deductions, if any, in accordancc with the provisions of this Contract, to be made from wages actually earned by persons so employed or to be employed in such classifications, shall be posted at appropriate conspicuous points at the site of the work. 12. COMPLAINTS, PROCEEDINGS, OR TESTIMONY BY EMPLOYEES No laborer or mechanic to whom the wage, salary, or other labor standards provisions of this Contract are applicable shall bc discharged or in any other manner dis,criminated against by the Contractor or any subcontractor because such em- ployee has filed any complaint or instituted or caused to be instituted any proceeding or has testified or is about to testify in any proceeding under or relating to the labor standards applicable under this Contract to his employer. 13. CLAIMS AND DISPUTES PERTAINING TO WAGE RATES Claims and disputes pertaining to wage rates or to classifications of laborers and mechanics employed upon the work covered by this Contract shall be promptly reported by the Contractor in writing to the Local Public Agency or Public Body for referral by the latter through the Secretary of Housing and Urban Development to the Secretary of Labor, United States Department of Labor, whose decision shall be final with respect thereto. 14. QUESTIONS CONCERNING CERTAIN FEDERAL STATUTES AND REGULATIONS All questions arising under this Contract which relate to the application or interpretation of (a) the aforesaid Anti- Kickback Act, (b) the Contract Work Hours Standards Act, (c) the aforesaid Davis-Bacon Act, (d) the regulations issued by the Secretary of Labor, United States Department of Labor, pursuant to said Acts, or (e) the labor standards provisions of any -3- HUD-3200 (8-69) , I .. other pertinent Federal statute, shall be referred, through the Local Public Agency or Public Body and the Secretary of Housing and Urban Development, to the Secretary of Labor, United States Department of Labor, for said Secretary's appro- priate ruling or interpretation which shall be authoritative and may be relied upon for the purposes of this Contract. 15, PAYROLLS AND BASIC PAYROLL RECORDS OF CONTRACTOR AND SUBCONTRACTORS The Contractor and each subcontractor shall prepare his payrolls on forms satisfactory to and in accordance with in. structions to be furnished by the Local Public Agency or Public Body. The Contractor shall submit weekly to the Local Pub- lic Agency or Public Body two certified copies of all payrolls of the Contractor and of the subcontractors, it being understood that the Contractor shall be responsible for the submission of copies of payrolls of all subcontractors. Each such payroll shall contain the "Weekly Statement of Compliance" set forth in Section 3.3 of Title 29, Code of Federal Regulations. The payrolls and basic payroll records of the Contractor and each subcontractor covering all laborers and mechanics employed upon the work covered by this Contract shall be maintained during the course of the work and preserved for a period of 3 years thereafter. Such payrolls and basic payroll records shall contain the name and address of each such employee, his cor. rect classification, rate of pay (including rates of contributions or costs anticipated of the types described in Section l(h) (2) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made, and actual wages paid. In addition, whenever the Secretary of Labor has found under Section 5.5(a) (I) (iv) of Title 29, Code of Federal Regulations, that the wages of any laborer or mechanic include the amount of any costs resonably anticipated in providing benefits under a plan or program described in Section I(b) (2) (B) of the Davis-Bacon Act, the Contractor or subcontractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. The Contractor and each subcontractor shall make his employment records with respect to persons employed by him upon the work covered by this Contract available for in- spection by authorized representatives of the Secretary of Housing and Urban Development, the Local Public Agency or Public Body, and the United States Department of Labor. Such representatives shall be permitted to interview employees of the Contractor or of any subcontractor during working hours on the job. 16. SPECIFIC COVERAGE OF CERTAIN TYPES OF WORK BY EMPLOYEES The transporting of materials and supplies to or from the site of the Project or Program to which this Contract pertains by the employees of the Contractor or of any subcontractor, and the manufacturing or furnishing of materials, articles, sup- plies, or equipment on the site of the Project or Program to which this Contract pertains by persons employed by the Con- tractor or by any subcontractor, shall, for the purposes of this Contract, and without limiting the generality of the foregoing provisions of this Contract, be deemed to be work to which these Federal Labor Standards Provisions are applicable. 17. INELIGIBLE SUBCONTRACTORS The Contractor shall not subcontract any part of the work covered by this Contract or permit subcontracted work to be further subcontracted without the Local Public Agency's or Public Body's prior written approval of the subcontractor. The Local Public Agency or Public Body will not approve any subcontractor for work covered by this Contract who is at the time ineligible under the provisions of any applicable regulations issued by the Secretary of Labor. United States Department of Labor, to receive an award of such subcontract. 18. PROVISIONS TO BE INCLUDED IN CERTAIN SUBCONTRACTS The Contractor shall include or cause to be included in each subcontract covering any of the work covered by this Con- tract, provisions which are consistent with these Federal Labor Standards Provisions and also a clause requiring the subcon- tractors to include such provisions in any lower tier subcontracts which they may enter into, together with a clause requiring such insertion in any further subcontracts that may in turn be made,r -4. .,. 0-:- I I HUD..J200 (8.69) . 19. BREACH OF FOREGOING FEDERAL LABOR STANDARDS PROVISIONS In addition to the causes for termination of this Contract as herein elsewhere set forth, the Local Public Agency or Public Body reserves the right to terminate this Contract if the Contractor or any subcontractor whose subcontract covers any of the work covered hy this Contract shall breach any of these Federal Labor Standards Provisions. A breach of these Federal Labor Standards Provisions may also be grounds for debarment as provided by the applicable regulations issued by the Secretary of Labor, United States Department of Labor. -5- I HUD-3200 (8-69) I I '-" "",' ATTACHMENT TO FEDERAL LABOR STANDARDS PROVISIONS SO-CALLED "ANTI-KICKBACK ACT" AND REGULATIONS PROMULGATED PURSUANT THERETO BY THE SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR TITLE 18, U.S.c., section 874 (Replaces section 1 of the Act of June 13, 1934 (48 Stat. 948, 40 U.S.c., sec. 276b) pursuant to the Act of June 25, 1948,62 Stat. 862) KICKBACKS FROM PUBLIC WORKS EMPLOYEES Whoever, by force, intimidation, or threat of procuring dismissal from employment, or by any other manner whatso- ever induces any person employed in the construction, prosecution, completion or repair of any public building, public work, or building or work financcd in whole or in part by loans or grants from the United States, to give up any part of the com- pensation to which he is entitled under his contract of employment, shall be fined not more than $5,000 or imprisoned not more than five years, or both. SECTION 2 OF THE ACT OF JUNE 13, 1934, AS AMENDED (48 Stat. 948, 62 Stat. 862, 63 Stat. 108,72 Stat. 967,40 U.S.C" sec. 276c) The Secretary of Labor shall make reasonable regulations for contractors and subcontractors engaged in the construction, prosecution, completion or repair of public buildings, public works or buildings or works financed in whole or in part by loans or grants from the United States, including a provision that each contractor and subcontractor shall furnish weekly a statement with respect to the wages paid each employee during the preceding week. Section 1001 of Title 18 (United States Code) shall apply to such statements. ---xxx--- Pursuant to the aforesaid Anti-Kickback Act, the Secretary of Labor, United States Department of Labor, has promul- gated the regulations hereinafter set forth, which regulations are found in Title 29, Subtitle A, Code of Federal Regulations, Part 3. The term "this part," as used in the regulations hereinafter set forth, refers to Part 3 last above mentioned. Said reg- ulations are as follows: TITLE 29 - LABOR Subtitle A - Office of the Secretary of Labor PART 3-CONTRACTORS AND SUBCONTRACTORS ON PUBLIC BUILDING OR PUBLIC WORK FINANCED IN WHOLE OR IN PART BY LOANS OR GRANTS FROM THE UNITED STATES Section 3.1 Purpose and scope. This part prescribes "anti-kickback" regulations under section 2 of the Act ofJune 13, 1934, as amended (40 U.S.C. 276c), popularly known as the Copeland Act. This part applies to any contract which is subject to Federal wage standards and which is for the construction, prosecution, completion, or repair of public buildings, public works or buildings or works financed in whole or in part by loans or grants from the United States. The part is intended to aid in the enforcement of the minimum wage provisions of the Davis-Bacon Act and the various statutes dealing with Federally-assisted construction that contain similar minimum wage provisions, including those provisions which are not subject to Reorganization Plan No. 14 "6. I I HUD-3200 (8.69) ..:0... ,I( " (e.g" the College Housing Act of 1950, the Federal Water Pollution Control Act, and the Housing Act of 1959), and in the . enforcement of the overtime provisions of the Contract Work Hours Stanaards Act whenever they are applicable to construction work. The part details the obligation of contractors and subcontractors relative to the weekly submission of statements regard- ing the wages paid on work covered thereby; sets forth the circumstances and procedures governing the making of payroll de- ductions from the wages of those employed on such work; and delineates the methods of payment permissible on such work. Section 3.2 Definitions. As used in the regulations in this part: (a) The terms "building" or "work" generally include construction activity as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work. The terms include, without limitation, buildings, structures, and improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power- lines, pumping stations, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals; dredging, shoring, scaffolding, drilling, blasting, excavating, clearing, and landscaping. Unless conducted in connection with and at the site of such a building or work as is described in the foregoing sentence, the manufacture or furnish- ing of materials, articles, supplies, or equipment (whether or not a Federal or State agency acquires title to such materials, articles, supplies, or equipment during the course of the manufacture or furnishing, or owns the materials from which they are manufactured or furnished) is not a "building" or "work" within the meaning of the regulations in this part. (b) The terms" construction," "prosecution," "completion, " or "repair" mean all types of work done on a particular building or work at the site thereof, including, without limitation, altering, remodeling, painting and decorating, the transport- ing of materials and supplies to or from the building or work by the employees of the construction contractor or construction subcontractor, and the manufacturing or furnishing of materials, articles, supplies, or equipment on the site of the building or work, by persons employed at the site by the contractor or subcontractor. (c) The terms "public building" or "public work" include building or work for whose construction, prosecution, com- pletion, or repair, as defined above, a Federal agency is a contracting party, regardless of whether title thereof is in a Federal ageney, (d) The term "building or work financed in whole or in part by loans or grants from the United States" includes build- ing or work for whose construction, prosecution, completion, or repair, as defined above, payment or part payment is made directly or indirectly from funds provided by loans or grants by a Federal agency. The term does not include building or work for which Federal assistance is limited solely to loan guarantees or insurance. (e) Every person paid by a contractor or subcontractor in any manner for his labor in the construction, prosecution, completion, or repair of a public building or public work or building or work financed in whole or in part by loans or grants from the United States is "employed" and receiving "wages," regardless of any contractual relationship alleged to exist between him and the real employer. (f) The term "any affiliated person" includes a spouse, child, parent, or other close relative of the contractor or sub- contractor; a partner or officer of the contractor or subcontractor: a corporation closely connected with the contractor or subcontractor as parent, subsidiary or otherwise, and an officer or agent of such corporation. (g) The term "Federal agency" means the United States, the District of Columbia, and all executive departments, in- dependent establishments, administrative agencies, and instrumentalities of the United States and of the District of Columbia, including corporations, all or substantially all of the stock of which is beneficially owned by the United States, by the District of Columbia, or any of the foregoing departments, establishments, agencies, and instrumentalities, Section 3.3 Weekly statement with respect to payment of wages. (a) As used in this section, the term "employee" shall not apply to persons in classifications higher than that of laborer or mechanic and those who are the immediate supervisors of such employees, -7- HUD-3200 (8-69) I I ., " (h) Each contractor or suhcontractor engaged in the construction, prosecution, completion, or repair of any puhlic building or public work, or building or work financed in whole or in part hy loans or grants from the United States, shall furnish each week a statement with respect to the wages paid each of its employees engaged on work covered by 29 CFR Parts 3 and 5 during the preceding weekly payroll period. This statement shall be executed hy the contractor or subcon- tractor or by an authorized officer or employee of the contractor or subcontractor who supervises the payment of wages, and shall be on form WH 348, "Statement of Compliance ", or on an identical form on the back of WH 347, "Payroll (For Con- tractors Optional Use)" or on any form with identical wording. Sample copies ofWH 347 and WH 348 may be ohtained from the Government contracting or sponsoring agency, and copies of these forms may be purchased at the Government Printing Office. (c) The requirements of this section shall not apply to any contract of $2,000 or less. (d) Upon a written finding hy the head of a Federal agency, the Secretary of Labor may provide reasonable limitations, variations, tolerances, and exemptions from the requirements of this section subject to such conditions as the Secretary of Labor may specify. [29 F.R. 95, Jan. 4, 1964, as amended at 33 F,R. 10186, July 17, 1968] Section 3.4 Submission of weekly statements and the preservation and inspection of weekly payroll records. (a) Each weekly statement required under ~ 3.3 shall he delivered by the contractor or suhcontractor, within seven days after the regular payment date of the payroll period, to a representative of a Federal or State agency in charge at the site of the building or work, or, if there is no representative of a Federal or State agency at the site of the building or work, the statement shall be mailed hy the contractor or suhcontractor, within such time, to a Federal or State agency contracting for or financing the building or work. After such examination and check as may he made, such statement, or a copy thereof, shall be kept available, or shall be transmitted together with a report of any violation, in accordance with applicable procedures prescribed by the United States Department of Labor. (b) Each contractor or subcontractor shall preserve his weekly payroll records for a period of three years from date of completion of the contract. The payroll records shall set out accurately and completely the name and address of each laborer and mechanic, his correct classification, rate of pay, daily and weekly numher of hours worked, deductions made, and actual wages paid. Such payroll records shall he made available at all times for inspection hy the contracting officer or his authorized representative, and hy authorized representatives of the Department of Labor. Section 3.5 Payroll deductions permissible without application to or approval of the Secretary of labor. Deductions made under the circumstances or in the situations descrihed in the paragraphs of this section may be made without application to and approval of the Secretary of Lahor: (a) Any deduction made in compliance with the requirements of Federal, State, or local law, such as Federal or State withholding income taxes and Federal social security taxes. (b) Any deduction of sums previously paid to the employee as a hona fide prepayment of wages when such prepayment is made without discount or interest. A "hona fide prepayment of wages" is considered to have heen made only when cash or its equivalent has heen advanced to the person employed in such manner as to give him complete freedom of disposition of the advanced funds. (c) Any deduction of amounts required by court process to he paid to another, unless the deduction is in favor of the contractor, subcontractor or any affiliated person, or when collusion or collaboration exists. -8- : <t; ....., , I HUD-3200 (8-691 I . (d) Any deduction constituting a contribution on behalf of the person employed to funds established by the employer . or representatives of employees, or both, for the propose of providing either from principal or income, or both, medical or hospital care, pensions or annuities on retirement, death benefits, compensation for injuries, illness, accidents, sickness, or disability, or for insurance to provide any of the foregoing, or unemployment benefits, vacation pay, savings accounts, or similar payments for the benefit of employees, their families and dependents: Provided, however, That the following standards are met: (1) The deduction is not otherwise prohibited by law; (2) it is either: (i) Voluntarily consented to by the employee in writing and in advance of the period in which the work is to be done and such consent is not a condition either for the obtaining of or for the continuation of employment, or (ii) provided for in a bona fide collective bargaining agreement be- tween the contractor or subcontractor and representatives of its employees; (3) no profit or other benefit is otherwise obtained, directly or indirectly, by the contractor or subcontractor or any affiliated person in the form of commission, dividend, or otherwise; and (4) the deductions shall serve the convenience and interest of the employee. (e) Any deduction contributing toward the purchase of United States Defense Stamps and Bonds when voluntarily authorized by the employee. (f) Any deduction requested by the employee to enable him to repay loans to or to purchase shares in credit unions organized and operated in accordance with Federal and State credit union statutes. (g) Any deduction voluntarily authorized by the employee for the making of contributions to governmental or quasi. governmental agencies, such as the American Red Cross. (h) Any deduction voluntarily authorized by the employee for the making of contributions to Community Chests, United Givers Funds, and similiar charitable organizations. (i) Any deductions to pay regular union initiation fees and membership dues, not including fines or special assessments: Provided, however, That a collective bargaining agreement between the contractor or subcontractor and representatives of its employees provides for such deductions and the deductions are not otherwise prohibited by law. (j) Any deduction not more than for the "reasonable cost" of board, lodging, or other facilities meeting the require- ments of section 3(m) of the Fair Labor Standards Act of 1938, as amended, and Part 531 of this title. When such a deduction is made the additional records required under ~ 516.27 (a) of this title shall be kept. Section 3.6 Payroll deductions permissible with the approval of the Secretary of Labor. Any contractor or subcontractor may apply to the Secretary of Labor for permission to make any deduction not per. mitted under ~ 3.5. The Secretary may grant permission whenever he finds that: (a) The contractor, subcontractor, or any affiliated person does not make a profit or benefit directly or indirectly from the deduction either in the form of a commission, dividend, or otherwise; (b) The deduction is not otherwise prohibited by law; (c) The deduction is either (1) voluntarily consented to by the employee in writing and in advance of the period in which the work is to be done and such consent is not a condition either for the obtaining of employment or its continuance, or (2) provided for in a bona fide collective bargaining agreement between the contractor or subcontractor and representatives of its employees; and (d) The deduction serves the convenience and interest of the employee. -9. HUD-3200 (8-691 I I - .- '" Section 3.7 Applications for the approval ofthe Secretary of Labor. Any application for the making of payroll deductions under ~ 3.6 shall comply with the requirements prescribed in the following paragraphs of this section: (a) The application shall be in writing and shall be addressed to the Secretary of Labor. (b) The application shall identify the contract or contracts under which the work in question is to be performed. Per- mission will be given for deductions only on specific, identified contracts, except upon a showing of exceptional circumstances. (c) The application shall state affirmatively that there is compliance with the standards set forth in the provisions of ~ 3.6. The affirmation shall be accompanied by a full statement of the facts indicating such compliance. (d) The application shall include a description of the proposed deduction, the purpose to be served thereby, and the classes of laborers or mechanics from whose wages the proposed deduction would be made. (e) The application shall state the name and business of any third person to whom any funds obtained from the pro- posed deductions are to be transmitted and the affiliation of such person, if any, with the applicant. Section 3.8 Action by the Secretary of Labor upon applications. The Secretary of Labor shall decide whether or not the requested deduction is permissible under provisions of ~ 3.6; and shall notify the applicant in writing of his decision. Section 3.9 Prohibited payroll deductions. Deductions not elsewhere provided for by this part and which are not found to be permissible under ~ 3.6 are prohibited. Section 3.10 Methods of payment of wages. The payment of wages shall be by cash, negotiable instruments payable on demand, or the additional forms of compensa- tion for which deductions are permissible under this part. No other methods of payment shall be recognized on work subject to the Copeland Act. Section 3.11 Regulations part of contract. All contracts made with respect to the construction, prosecution, completion, or repair of any public building or public work or building or work financed in whole or in part by loans or grants from the United States covered by the regulations in this part shall expressly bind the contractor or subcont~'lctor to comply with such of the regulations in this part as may be ap- plicable. In this regard, see ~ 5.5 (a) of this subtitle. -10- ....u, S. GOVERNMENT PRINTING OFFICE: 1970 0 - 434-820 (I2)