HomeMy WebLinkAbout399580 NEWLANDS - CONTRACT - RFP - P1032 VIDEO-PHOTO SIMULATION OF MULTI-MODALPROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into the day and year set forth below, by and
between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter
referred to as the "City" and Newland & Company, Inc., hereinafter referred to as "Professional".
WITNESSETH:
In consideration of the mutual covenants and obligations herein expressed, it is agreed by
and between the parties hereto as follows:
Scone of Services. The Professional agrees to provide services in accordance
with the scope of services attached hereto as Exhibit "A", consisting of two (2) pages, and
incorporated herein by this reference.
2. Contract Period. This Agreement shall commence upon signing, and shall
continue in full force and effect until December 22, 2006, unless sooner terminated as herein
provided.
3. Early Termination by City. Notwithstanding the time periods contained herein, the
City may terminate this Agreement at any time without cause by providing written notice of
termination to the Professional. Such notice shall be delivered at least fifteen (15) days prior to
the termination date contained in said notice unless otherwise agreed in writing by the parties.
All notices provided under this Agreement shall be effective when mailed, postage prepaid and
sent to the following addresses:
Professional: City: With Copy to:
Newlands & Company, Inc City of Fort Collins City of Fort Collins, Purchasing
740 SW 21*'' Ave., Suite 330 P.O. Box 580 PO Box 580
Portland, Oregon 97205, Fort Collins, Colorado 80522 Fort Collins, CO 80522 Deleted;
In the event of any such early termination by the City, the Professional shall be paid for services
rendered prior to the date of termination, subject only to the satisfactory performance of the
Professional's obligations under this Agreement. Such payment shall be the Professional's sole
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Exhibit B
cost Proposal
The following is a tletdse cost proposal fordo above scope of services. The total
cost can be adjusted by removing tasks and by scaling the effort.
Rat"
Project Manager
$120.00
Studio
$90.00
Fleldwosk
Pteldworir/Meetings
18
$120.00
$1,920.00
Video/Photoshoot
to
$90.00
$1,440.00
TV Studio
1
$500.00
S80o.00
Per Dian
2
$)60.00
s30D.00
Ahim
1
$=.ODD
$278.W
s4,436.OD
map aaimatloa
Base Model
40
$90.00
$3,000.00
Animation (3 Ninnies)
40
$90.00
s3,900.00
$7,2DD.00
Dowatowa 3D Yniumalloa
Base Model
40
$90.00
$3,000.00
3D Anhaation (30 seconds)
24
$90.00
$2.180.00
=5,780.00
Suberbsa 3D Ambnation
Baas Model
40
$90.00
$3.000.00
3D Animation (30 seconds)
24
$90.00
$2. Isom
uuti�
s8,50.00
View#1
16
$90.00
$1,440.00
View#2
16
$90.00
$1,440.00
View #3
24
$90.00
M190.00
$5,040.00
Video Production
Editing and Output 32 s90.00 $2,880.00
Narration 1 $300.00 $300.00
$3.190.00
row sm.i7a oD
Addidoual Services
Additional services outside this scope wM be estimated and billed at the following
rates (expenses are billed at cost):
Project Matiager/Principok ............................. $120/Ar.
Studio (Per person): ............................................ $90/Iir.
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Best Practices Procurement Manual - Exhibit C Page
FEDERAL TRANSIT ADMINISTRATION
BEST PRACTICES PROCUREMENT MANUAL
TABLE OF CONTENTS (Appendix C - Governing Documents)
A.1 - Federally Required and Other Model Contract Clauses
1. Fly America Requirements
2. Buy America Requirements
3. Charter Bus and School Bus Requirements
4. Cargo Preference Requirements
5. Seismic Safety Requirements
6. Energy Conservation Requirements
7. Clean Water Requirements
8. Bus Testing
9. Pre -Award and Post Delivery Audit Requirements
10. Lobbying
11. Access to Records and Reports
12. Federal Changes
13. Bonding Requirements
14. Clean Air
15. Recycled Products
16. Davis -Bacon and Copeland Anti -Kickback Acts
17. Contract Work Hours and Safety Standards Act
18. [Reserved]
19. No Government Obligation to Third Parties
20. Program Fraud and False or Fraudulent Statements and Related Acts
21. Termination
22. Government -wide Debarment and Suspension (Nonprocurement)
23. Privacy Act
24. Civil Rights Requirements
25. Breaches and Dispute Resolution
26. Patent and Rights in Data
27. Transit Employee Protective Agreements
28. Disadvantaged Business Enterprises (DBE)
29. [Reserved]
30. Incorporation of Federal Transit Administration (FTA) Terms
31. Drug and Alcohol Testing
Best Practices Procurement Manual — Exhibit C Paste
Best Practices Procurement Manual — Exhibit C Page
1. FLY AMERICA REQUIREMENTS
49 U.S.C. § 40118
41 CFR Part 301-10
APPficabifily to Contracts
The Fly America requirements apply to the transportation of persons or property,
by air, between a place in the U.S. and a place outside the U.S., or between places
outside the U.S., when the FTA will participate in the costs of such air
transportation. Transportation on a foreign air carrier is permissible when provided
by a foreign air carrier under a code share agreement when the ticket identifies the
U.S. air carrier's designator code and flight number. Transportation by a foreign air
carrier is also permissible if there is a bilateral or multilateral air transportation
agreement to which the U.S. Government and a foreign government are parties and
which the Federal DOT has determined meets the requirements of the Fly America
Act.
Flow Down Requirements
The Fly America requirements flow down from FTA recipients and subrecipients to
first tier contractors, who are responsible for ensuring that lower tier contractors
and subcontractors are in compliance.
Model Clause/Lauguage
The relevant statutes and regulations do not mandate any specified clause or
language. FTA proposes the following language.
Ely America Requirements
The Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in
accordance with the General Services Administration's regulations at 41 CFR Part
301-10, which provide that recipients and subrecipients of Federal funds and their
contractors are required to use U.S. Flag air carriers for U.S Government -financed
international air travel and transportation of their personal effects or property, to
the extent such service is available, unless travel by foreign air carrier is a matter
of necessity, as defined by the Fly America Act. The Contractor shall submit, if a
foreign air carrier was used, an appropriate certification or memorandum
adequately explaining why service by a U.S. flag air carrier was not available or
why it was necessary to use a foreign air carrier and shall, in any event, provide a
certificate of compliance with the Fly America requirements. The Contractor
agrees to include the requirements of this section in all subcontracts that may
involve international air transportation.
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Best Practices Procurement Manual — Exhibit C Pane
2. BUY AMERICA REQUIREMENTS
49 U.S.C. 5323(j)
49 CFR Part 661
Applicability to Contracts
The Buy America requirements apply to the following types of contracts: Construction Contracts
and Acquisition of Goods or Rolling Stock (valued at more than $100,000).
Flow Down
The Buy America requirements flow down from FTA recipients and subrecipients to first tier
contractors, who are responsible for ensuring that lower tier contractors and subcontractors are in
compliance. The $100,000 threshold applies only to the grantee contract, subcontracts under that
amount are subject to Buy America.
Mandatory Clause/Lanauaae
The Buy America regulation, at 49 CFR 661.13, requires notification of the Buy America
requirements in FTA-funded contracts, but does not specify the language to be used. The
following language has been developed by FTA.
Buy America - The contractor agrees to comply with 49 U.S.C. 53230) and 49 C.F.R. Part 661,
which provide that Federal funds may not be obligated unless steel, iron, and manufactured
products used in FTA-funded projects are produced in the United States, unless a waiver has
been granted by FTA or the product is subject to a general waiver. General waivers are listed in
49 C.F.R. 661.7, and include final assembly in the United States for 15 passenger vans and 15
passenger wagons produced by Chrysler Corporation, and microcomputer equipment and
software. Separate requirements for rolling stock are set out at 49 U.S.C. 53230)(2)(C) and 49
C.F.R. 661.11. Rolling stock must be assembled in the United States and have a 60 percent
domestic content.
A bidder or offeror must submit to the FTA recipient the appropriate Buy America
certification (below) with all bids or offers on FTA-funded contracts, except those
subject to a general waiver. Bids or offers that are not accompanied by a
completed Buy America certification must be rejected as nonresponsive. This
requirement does not apply to lower tier subcontractors.
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Best Practices Procurement Manual - Exhibit C Paae
Certification requirement for procurement of steel, iron, or manufactured products.
Certificate of Compliance with 49 U.S.C. 5323(j)(1)
The bidder or offeror hereby certifies that it will meet the requirements of 49
U.S.C. 5323(j)(1) and the applicable regulations in 49 C.F.R. Part 661.5.
Date
Signature
Company Name
Title
Certificate of Non -Compliance with 49 U.S.C. 5323(j)(1)
The bidder or offeror hereby certifies that it cannot comply with the requirements
of 49 U.S.C. 5323(j)(1) and 49 C.F.R. 661.5, but it may qualify for an exception
pursuant to 49 U.S.C. 5323(j)(2)(A), 5323(j)(2)(B), or 5323(j)(2)(D), and 49 C.F.R.
661.7.
Date
Signature
Company Name
Title
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Best Practices Procurement Manual — Exhibit C Pane
Certification requirement for procurement of buses, other rolling stock and
associated equipment.
Certificate of Compliance with 49 U.S. C. 5323(j)(2)(C).
The bidder or offeror hereby certifies that it will comply with the requirements of
49 U.S.C. 5323(j)(2)(C) and the regulations at 49 C.F.R. Part 661.11.
Date
Signature
Company Name
Title
Certificate of Non -Compliance with 49 U.S.C. 5323(j)(2)(C)
The bidder or offeror hereby certifies that it cannot comply with the requirements
of 49 U.S.C. 5323(j)(2)(C) and 49 C.F.R. 661.11, but may qualify for an exception
pursuant to 49 U.S.C. 5323(j)(2)(A), 5323(j)(2)(B), or 5323(j)(2)(D), and 49 CFR
661.7.
Date _
Signature
Company Name
Title
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Best Practices Procurement Manual - Exhibit C Pane
3. CHARTER BUS REQUIREMENTS
49 U.S.C. 5323(d)
49 CFR Part 604
Applicability to Contracts
The Charter Bus requirements apply to the following type of contract: Operational
Service Contracts.
Flow Down Requirements
The Charter Bus requirements flow down from FTA recipients and subrecipients to
first tier service contractors.
Model Clause/Language
The relevant statutes and regulations do not mandate any specific clause or
language. The following clause has been developed by FTA.
Charter Service Operations - The contractor agrees to comply with 49 U.S.C.
5323(d) and 49 CFR Part 604, which provides that recipients and subrecipients of
FTA assistance are prohibited from providing charter service using federally funded
equipment or facilities if there is at least one private charter operator willing and
able to provide the service, except under one of the exceptions at 49 CFR 604.9.
Any charter service provided under one of the exceptions must be "incidental," i.e.,
it must not interfere with or detract from the provision of mass transportation.
3. SCHOOL BUS REQUIREMENTS
49 U.S.C. 5323(F)
49 CFR Part 605
Applicability to Contracts
The School Bus requirements apply to the following type of contract: Operational
Service Contracts.
Flow Down Requirements
The School Bus requirements flow down from FTA recipients and subrecipients to
first tier service contractors.
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Best Practices Procurement Manual — Exhibit C Paae
Model Clause/Language
The relevant statutes and regulations do not mandate any specific clause or
language. The following clause has been developed by FTA.
School Bus Operations - Pursuant to 69 U.S.C. 5323(f) and 49 CFR Part 605,
recipients and subrecipients of FTA assistance may not engage in school bus
operations exclusively for the transportation of students and school personnel in
competition with private school bus operators unless qualified under specified
exemptions. When operating exclusive school bus service under an allowable
exemption, recipients and subrecipients may not use federally funded equipment,
vehicles, or facilities.
4. CARGO PREFERENCE REQUIREMENTS
46 U.S.C. 1241
46 CFR Part 381
Applicability to Contracts
The Cargo Preference requirements apply to all contracts involving equipment,
materials, or commodities which may be transported by ocean vessels.
Flow Down
The Cargo Preference requirements apply to all subcontracts when the subcontract
may be involved with the transport of equipment, material, or commodities by
ocean vessel.
Model Clause/Language
The MARAD regulations at 46 CFR 381.7 contain suggested contract clauses. The
following language is proffered by FTA.
Cargo Preference - Use of United States -Flag Vessels - The contractor agrees: a. to
use privately owned United States -Flag commercial vessels to ship at least 50
percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo
liners, and tankers) involved, whenever shipping any equipment, material, or
commodities pursuant to the underlying contract to the extent such vessels are
available at fair and reasonable rates for United States -Flag commercial vessels; b.
to furnish within 20 working days following the date of loading for shipments
originating within the United States or within 30 working days following the date
of leading for shipments originating outside the United States, a legible copy of a
rated, "on -board" commercial ocean bill -of -lading in English for each shipment of
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Best Practices Procurement Manual — Exhibit C Pane
cargo described in the Preceding paragraph to the Division of National Cargo, Office
of Market Development, Maritime Administration, Washington, DC 20590 and to
the FTA recipient (through the contractor in the case of a subcontractor's bill-of-
ladin c. to include these requirements in all subcontracts issued pursuant to this
contract when the subcontract may involve the transport of equipment material or
commodities by ocean vessel.
5. SEISMIC SAFETY REQUIREMENTS
42 U.S.C. 7701 et seq. 49
CFR Part 41
Applicability to Contracts
The Seismic Safety requirements apply only to contracts for the construction of
new buildings or additions to existing buildings.
Flow Down
The Seismic Safety requirements flow down from FTA recipients and subrecipients
to first tier contractors to assure compliance, with the applicable building standards
for Seismic Safety, including the work performed by all subcontractors.
Model Clauses/Language
The regulations do not provide suggested language for third -party contract clauses.
The following language has been developed by FTA.
Seismic Safety - The contractor agrees that any new building or addition to an
existing building will be designed and constructed in accordance with the standards
for Seismic Safety required in Department of Transportation Seismic Safety
Regulations 49 CFR Part 41 and will certify to compliance to the extent required by
the regulation. The contractor also agrees to ensure that all work performed under
this contract including work performed by a subcontractor is in compliance with
the standards required by the Seismic Safety Regulations and the certification of
compliance issued on the project.
6. ENERGY CONSERVATION REQUIREMENTS
42 U.S.C. 6321 et seq.
49 CFR Part 18
Applicability to Contracts
The Energy Conservation requirements are applicable to all contracts.
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right and remedy for such termination.
4. Design. Proiect Indemnity and Insurance Responsibility. The Professional shall
be responsible for the professional quality, technical accuracy, timely completion and the
coordination of all services rendered by the Professional, including but not limited to designs,
plans, reports, specifications, and drawings and shall, without additional compensation, promptly
remedy and correct any errors, omissions, or other deficiencies. The Professional shall
indemnify, save and hold harmless the City, its officers and employees in accordance with
Colorado law, from all damages whatsoever claimed by third parties against the City; and for the
City's costs and reasonable attomeys fees, arising directly or indirectly out of the Professional's
performance of any of the services fumished under this Agreement. The Professional shall
maintain commercial general liability insurance in the amount of $500,000. Compensation. In
consideration of the services to be performed pursuant to this Agreement, the City agrees to pay
Professional a fixed fee in the amount of Thirty -Six Thousand One Hundred Seventy Five dollars
and no/100 ($36,175.00) plus reimbursable direct costs. All such fees and costs shall not
exceed Thirty -Six Thousand One Hundred Seventy Five dollars and no/100 ($36,175.00).
Monthly partial payments based upon the Professional's billings and itemized statements are
permissible. The amounts of all such partial payments shall be based upon the Professional's
City -verified progress in completing the services to be performed pursuant hereto and upon the
City's approval of the Professional's actual reimbursable expenses. The parties acknowledge
that Fehr & Peers are not parties to this agreement. However, the rates listed for services to be
provided by this subcontractor shall be the rate paid by the City to the Professional for these
services. If the amount charged by this subcontractor exceed the rates listed in Exhibit "B" the
excess amount shall not be paid or owed by the City. The limitation on increases in prices set
forth in section 4 herein shall apply to all rates listed in Exhibit "B" including subcontractor rates.
Final payment shall be made following acceptance of the work by the City. Upon final payment,
all designs, plans, reports, specifications, drawings, and other services rendered by the
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Best Practices Procurement Manual — Exhibit C Pane
Flow Down
The Energy Conservation requirements extend to all third party contractors and
their contracts at every tier and subrecipients and their subagreements at every
tier.
Model Clause/Language
No specific clause is recommended in the regulations because the Energy
Conservation requirements are so dependent on the state energy conservation plan.
The following language has been developed by FTA:
Energy Conservation - The contractor agrees to comply with mandatory standards
and policies relating to energy efficiency which are contained in the state energy
conservation plan issued in compliance with the Energy Policy and Conservation
Act.
7. CLEAN WATER REQUIREMENTS
33 U.S.C. 1251
Applicability to Contracts
The Clean Water requirements apply to each contract and subcontract which
exceeds $100,000.
Flow Down
The Clean Water requirements flow down to FTA recipients and subrecipients at
every tier.
Model Clause/Language
While no mandatory clause is contained in the Federal Water Pollution Control Act,
as amended, the following language developed by FTA contains all the mandatory
requirements:
Clean Water - (1) The Contractor agrees to comply with all applicable standards,
orders or regulations issued pursuant to the Federal Water Pollution Control Act, as
amended, 33 U.S.C. 1251 et seq. The Contractor agrees to report each violation
to the Purchaser and understands and agrees that the Purchaser will, in turn, report
each violation as required to assure notification to FTA and the appropriate EPA
Regional Office.
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Best Practices Procurement Manual - Exhibit C Paae
(2) The Contractor also agrees to include these requirements in each subcontract
exceeding $100,000 financed in whole or in part with Federal assistance provided
by FTA.
8. BUS TESTING
49 U.S.C. 5323(c)
49 CFR Part 665
Applicability to Contracts
The Bus Testing requirements pertain only to the acquisition of Rolling
Stock/Turnkey.
Flow Down
The Bus Testing requirements should not flow down, except to the turnkey
contractor as stated in Master Agreement.
Model Clause/Language
Clause and language therein are merely suggested. 49 CFR Part 665 does not
contain specific language to be included in third party contracts but does contain
requirements applicable to
subrecipients and third party contractors. Bus Testing Certification and language
therein are merely suggested.
Bus Testing - The Contractor [Manufacturer] agrees to comply with 49 U.S.C. A
5323(c) and FTA's implementing regulation at 49 CFR Part 665 and shall perform
the following:
1) A manufacturer of a new bus model or a bus produced with a major change in
components or configuration shall provide a copy of the final test report to the
recipient at a point in the procurement process specified by the recipient which will
be prior to the recipient's final acceptance of the first vehicle.
2) A manufacturer who releases a report under paragraph 1 above shall provide
notice to the operator of the testing facility that the report is available to the
public.
3) If the manufacturer represents that the vehicle was previously tested, the
vehicle being sold should have the identical configuration and major components as
the vehicle in the test report, which must be provided to the recipient prior to
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Best Practices Procurement Manual — Exhibit C Pane
recipient's final acceptance of the first vehicle. If the configuration or components
are not identical, the manufacturer shall provide a description of the change and
the manufacturer's basis for concluding that it is not a major change requiring
additional testing.
4) If the manufacturer represents that the vehicle is "grandfathered" (has been
used in mass transit service in the United States before October 1, 1988, and is
currently being produced without a major change in configuration or components),
the manufacturer shall provide the name and address of the recipient of such a
vehicle and the details of that vehicle's configuration and major components.
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Best Practices Procurement Manual — Exhibit C Page
CERTIFICATION OF COMPLIANCE WITH FTA'S BUS TESTING REQUIREMENTS
The undersigned [Contractor/Manufacturer] certifies that the vehicle offered in this
procurement complies with 49 U.S.C. A 5323(c) and FTA's implementing
regulation at 49 CFR Part 665.
The undersigned understands that misrepresenting the testing status of a vehicle
acquired with Federal financial assistance may subject the undersigned to civil
penalties as outlined in the Department of Transportation's regulation on Program
Fraud Civil Remedies, 49 CFR Part 31. In addition, the undersigned understands
that FTA may suspend or debar a manufacturer under the procedures in 49 CFR
Part 29.
Date:
Signature:
Company Name:
Title:
9. PRE -AWARD AND POST DELIVERY AUDITS REQUIREMENTS
49 U.S.C. 5323
49 CFR Part 663
Applicability to Contracts
These requirements apply only to the acquisition of Rolling Stock/Turnkey.
Flow Down
These requirements should not flow down, except to the turnkey contractor as
stated in Master Agreement.
Model Clause/Language
Clause and language therein are merely suggested. 49 C.F.R. Part 663 does not
contain specific language to be included in third party contracts but does contain
requirements applicable to subrecipients and third party contractors.
- Buy America certification is mandated under FTA regulation, "Pre -Award and
Post -Delivery Audits of Rolling Stock Purchases," 49 C.F.R. 663.13.
-- Specific language for the Buy America certification is mandated by FTA
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Best Practices Procurement Manual - Exhibit C Paae
regulation,
"Buy America Requirements --Surface Transportation Assistance Act of 1982, as
amended,"
49 C.F.R. 661.12, but has been modified to include FTA's Buy America
requirements codified at 49 U.S.C. A 5323(j).
Pre -Award and Post -Delivery Audit Requirements - The Contractor agrees to
comply with 49 U.S.C. § 5323(I) and FTA's implementing regulation at 49 C.F.R.
Part 663 and to submit the following certifications:
(1) Buy America Requirements: The Contractor shall complete and submit a
declaration certifying either compliance or noncompliance with Buy America. If the
Bidder/Offeror certifies compliance with Buy America, it shall submit
documentation which lists 1) component and subcomponent parts of the rolling
stock to be purchased identified by manufacturer of the parts, their country of
origin and costs; and 2) the location of the final assembly point for the rolling
stock, including a description of the activities that will take place at the final
assembly point and the cost of final assembly.
(2) Solicitation Specification Requirements: The Contractor shall submit evidence
that it will be capable of meeting the bid specifications.
(3) Federal Motor Vehicle Safety Standards (FMVSS): The Contractor shall submit
1) manufacturer's FMVSS self -certification sticker information that the vehicle
complies with relevant FMVSS or 2) manufacturer's certified statement that the
contracted buses will not be subject to FMVSS regulations.
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Best Practices Procurement Manual — Exhibit C Page
BUY AMERICA CERTIFICATE OF COMPLIANCE WITH FTA REQUIREMENTS
FOR BUSES, OTHER ROLLING STOCK, OR ASSOCIATED EQUIPMENT
(To be submitted with a bid or offer exceeding the small purchase threshold for
Federal assistance programs, currently set at $100, 000.)
Certificate of Compliance
The bidder hereby certifies that it will comply with the requirements of 49 U.S.C.
Section 5323(j)(2)(C), Section 165(b)(3) of the Surface Transportation Assistance
Act of 1982, as amended, and the regulations of 49 C.F.R. 661.1 1:
Date:
Signature:
Company Name:
Title:
Certificate of Non -Compliance
The bidder hereby certifies that it cannot comply with the requirements of 49
U.S.C. Section 5323(j)(2)(C) and Section 165(b)(3) of the Surface Transportation
Assistance Act of 1982, as amended, but may qualify for an exception to the
requirements consistent with 49 U.S.C. Sections 5323(j)(2)(B) or (j)(2)(1)), Sections
165(b)(2) or (b)(4) of the Surface Transportation Assistance Act, as amended, and
regulations in 49 C.F.R. 661.7.
Date:
Signature:
Company Name:
Title:
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Best Practices Procurement Manual — Exhibit C Paste
10. LOBBYING
31 U.S.C. 1352
49 CFR Part 19
49 CFR Part 20
Applicability to Contracts
The Lobbying requirements apply to Construction/Architectural and
Engineering/Acquisition of Rolling Stock/Professional Service Contract/Operational
Service Contract/Turnkey contracts.
Flow Down
The Lobbying requirements mandate the maximum flow down, pursuant to Byrd
Anti -Lobbying Amendment, 31 U.S.C. § 1352(b)(5) and 49 C.F.R. Part 19,
Appendix A, Section 7.
Mandatory Clause/Language
Clause and specific language therein are mandated by 49 CFR Part 19, Appendix
A.
Modifications have been made to the Clause pursuant to Section 10 of the
Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601,
et seq.]
- Lobbying Certification and Disclosure of Lobbying Activities for third party
contractors are mandated by 31 U.S.C. 1352(b)(5), as amended by Section 10 of
the Lobbying Disclosure Act of 1995, and DOT implementing regulation, "New
Restrictions on Lobbying," at 49 CFR § 20.1 10(d)
- Language in Lobbying Certification is mandated by 49 CFR Part 19, Appendix A,
Section 7, which provides that contractors file the certification required by 49 CFR
Part 20, Appendix A.
Modifications have been made to the Lobbying Certification pursuant to Section 10
of the Lobbying Disclosure Act of 1995.
- Use of "Disclosure of Lobbying Activities," Standard Form-LLL set forth in
Appendix B of 49 CFR Part 20, as amended by "Government wide Guidance For
New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96) is mandated by 49
CFR Part 20, Appendix A.
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Best Practices Procurement Manual - Exhibit C Paae
Byrd Anti -Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying
Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, at seq.] -
Contractors who apply or bid for an award of $100,000 or more shall file the
certification required by 49 CFR part 20, "New Restrictions on Lobbying." Each tier
certifies to the tier above that it will not and has not used Federal appropriated
funds to pay any person or organization for influencing or attempting to influence
an officer or employee of any agency, a member of Congress, officer or employee
of Congress, or an employee of a member of Congress in connection with obtaining
any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each
tier shall also disclose the name of any registrant under the Lobbying Disclosure
Act of 1995 who has made lobbying contacts on its behalf with non -Federal funds
with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352.
Such disclosures are forwarded from tier to tier up to the recipient.
APPENDIX A, 49 CFR PART 20--CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements
(To be submitted with each bid or offer exceeding $100, 000)
The undersigned [Contractor] certifies, to the best of his or her knowledge and
belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of
the undersigned, to any person for influencing or attempting to influence an officer
or employee of an agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in connection with the
awarding of any Federal contract, the making of any Federal grant, the making of
any Federal loan, the entering into of any cooperative agreement, and the
extension, continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be
paid to any person for making lobbying contacts to an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this Federal contract, grant,
loan, or cooperative agreement, the undersigned shall complete and submit
Standard Form--LLL, "Disclosure Form to Report Lobbying," in accordance with its
instructions [as amended by "Government wide Guidance for New Restrictions on
Lobbying," 61 Fed. Reg. 1413 (1/19/96). Note: Language in paragraph (2) herein
has been modified in accordance with Section 10 of the Lobbying Disclosure Act of
1995 (P.L. 104-65, to be codified at 2 U.S.C. 1601, et seq.)]
17
Best Practices Procurement Manual — Exhibit C page
(3) The undersigned shall require that the language of this certification be included
in the award documents for all subawards at all tiers (including subcontracts,
subgrants, and contracts under grants, loans, and cooperative agreements) and
that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was
placed when this transaction was made or entered into. Submission of this
certification is a prerequisite for making or entering into this transaction imposed by
31, U.S.C. § 1352 (as amended by the Lobbying Disclosure Act of 1995). Any
person who fails to file the required certification shall be subject to a civil penalty
of not less than $10,000 and not more than $100,000 for each such failure.
[Note: Pursuant to 31 U.S.C. § 1352(c)(1)-(2)(A), any person who makes a
prohibited expenditure or fails to file or amend a required certification or disclosure
form shall be subject to
a civil penalty of not less than $10,000 and not more than $100,000 for each
such expenditure or failure.]
The Contractor, , certifies or affirms the truthfulness and
accuracy of each statement of its certification and disclosure, if any. In addition,
the Contractor understands and agrees that the provisions of 31 U.S.C. A 3801, et
seq., apply to this certification and disclosure, if any.
Signature of Contractor's Authorized Official
Name and Title of Contractor's Authorized Official
Date
11. ACCESS TO RECORDS AND REPORTS
49 U.S.C. 5325
18 CFR 18.36 (1)
49 CFR 633.17
Applicability to Contracts
Reference Chart "Requirements for Access to Records and Reports by Type of
Contracts"
Flow Down
FTA does not require the inclusion of these requirements in subcontracts.
18
Best Practices Procurement Manual — Exhibit C Paue
Model Clause/Language
The specified language is not mandated by the statutes or regulations referenced,
but the language provided paraphrases the statutory or regulatory language.
Access to Records - The following access to records requirements apply to this
Contract:
1. Where the Purchaser is not a State but a local government and is the FTA
Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R.
18.36(i), the Contractor agrees to provide the Purchaser, the FTA Administrator,
the Comptroller General of the United States or any of their authorized
representatives access to any books, documents, papers and records of the
Contractor which are directly pertinent to this contract for the purposes of making
audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant
to 49 C.F.R. 633.17 to provide the FTA Administrator or his authorized
representatives including any PMO Contractor access to Contractor's records and
construction sites pertaining to a major capital project, defined at 49 U.S.C.
5302(a)1, which is receiving federal financial assistance through the programs
described at 49 U.S.C. 5307, 5309 or 5311.
2. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the
FTA Recipient in accordance with 49 C.F.R. 633.17, Contractor agrees to provide
the Purchaser, the FTA Administrator or his authorized representatives, including
any PMO Contractor, access to the Contractor's records and construction sites
pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is
receiving federal financial assistance through the programs described at 49 U.S.C.
5307, 5309 or 5311. By definition, a major capital project excludes contracts of
less than the simplified acquisition threshold currently set at $100,000.
3. Where the Purchaser enters into a negotiated contract for other than a small
purchase or under the simplified acquisition threshold and is an institution of higher
education, a hospital or other non-profit organization and is the FTA Recipient or a
subgrantee of the FTA Recipient in accordance with 49 C.F.R. 19.48, Contractor
agrees to provide the Purchaser, FTA Administrator, the Comptroller General of the
United States or any of their duly authorized representatives with access to any
books, documents, papers and record of the Contractor which are directly pertinent
to this contract for the purposes of making audits, examinations, excerpts and
transcriptions.
19
Professional shall become the sole property of the City.
5. City Representative. The City will designate, prior to commencement of work, its
project representative who shall make, within the scope of his or her authority, all necessary and
proper decisions with reference to the project. All requests for contract interpretations, change
orders, and other clarification or instruction shall be directed to the City Representative.
6. Project Drawings. Upon conclusion of the project and before final payment, the
Professional shall provide the City with twelve (12) copies of the project video and each
animation clip in the following formats:
• Looping DVD (12 copies)
• W MV or AVI video (for computer playback)
• Flash Video (for Web playback)
• TIFF and JPEG image files of still renderings
7. Monthly Report. Commencing thirty (30) days after the date of execution of this
Agreement and every thirty (30) days thereafter, Professional is required to provide the City
Representative with a written report of the status of the work with respect to the Scope of
Services, Work Schedule, and other material information. Failure to provide any required
monthly report may, at the option of the City, suspend the processing of any partial payment
request.
8. Independent Contractor. The services to be performed by Professional are those
of an independent contractor and not of an employee of the City of Fort Collins. The City shall
not be responsible for withholding any portion of Professional's compensation hereunder for the
payment of FICA, Workers' Compensation, other taxes or benefits or for any other purpose.
9. Personal Services. It is understood that the City enters into this Agreement based
on the special abilities of the Professional and that this Agreement shall be considered as an
agreement for personal services. Accordingly, the Professional shall neither assign any
responsibilities nor delegate any duties arising under this Agreement without the prior written
3
Best Practices Procurement Manual — Exhibit C Pane
4. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA
Recipient in accordance with 49 U.S.C. 5325(a) enters into a contract for a capital
project or improvement (defined at 49 U.S.C. 5302(a)1) through other than
competitive bidding, the Contractor shall make available records related to the
contract to the Purchaser, the Secretary of Transportation and the Comptroller
General or any authorized officer or employee of any of them for the purposes of
conducting an audit and inspection.
5. The Contractor agrees to permit any of the foregoing parties to reproduce by
any means whatsoever or to copy excerpts and transcriptions as reasonably
needed.
6. The Contractor agrees to maintain all books, records, accounts and reports
required under this contract for a period of not less than three years after the date
of termination or expiration of this contract, except in the event of litigation or
settlement of claims arising from the performance of this contract, in which case
Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the
Comptroller General, or any of their duly authorized representatives, have disposed
of all such litigation, appeals, claims or exceptions related thereto. Reference 49
CFR 18.39(i)(1 1).
7. FTA does not require the inclusion of these requirements in subcontracts.
20
Best Practices Procurement Manual — Exhibit C Pane
Requirements for Access to Records and Reports by Types of Contract
Contract
Characteristics
Operation&
1 Service
Contract
:` Turnkey
Constructio
n
Architecture
I
Epall earina
Acquisition
of Rolling
Stock
Professional
Services
I State
Grantees
None
Those
None
None
None
None
imposed on
a. Contracts
state pass
below SAT
None
thru to
Yes, if non-
None unless
None unless
None unless
($100,000)
unless'
Contractor
competitive
non-
non-
non-
non-
award or if
competitive
competitive
competitive
b. Contracts
competitiv
funded thru'
award
award
award
above
a award
5307/5309/
$100,000/Capi
5311
tal Projects
11 Non State
Grantees
Those
Yes3
imposed on
Yes
Yes
Yes
Yes
a. Contracts
non -state
below SAT
Yes3
Grantee pass
Yes
Yes
Yes
Yes
($100,000)
thru to
b. Contracts
Contractor
above
$100,000/Capi
tal Projects
Sources of Authority:
49 USC 5325 (a)
2 49 CFR 633.17
3 18 CFR 18.36 (i)
12. FEDERAL CHANGES
49 CFR Part 18
Applicability to Contracts
The Federal Changes requirement applies to all contracts.
Flow Down
The Federal Changes requirement flows down appropriately to each applicable
changed requirement.
Model Clause/Language
No specific language is mandated. The following language has been developed by
21
Best Practices Procurement Manual - Exhibit C Pane
FTA.
Federal Changes - Contractor shall at all times comply with all applicable FTA
regulations, policies, procedures and directives, including without limitation those
listed directly or by reference in the Master Agreement between Purchaser and
FTA, as they may be amended or promulgated from time to time during the term of
this contract. Contractor's failure to so comply shall constitute a material breach of
this contract.
13. BONDING REQUIREMENTS
Applicability to Contracts
For those construction or facility improvement contracts or subcontracts exceeding
$100,000, FTA may accept the bonding policy and requirements of the recipient,
provided that they meet the minimum requirements for construction contracts as
follows:
a. A bid guarantee from each bidder equivalent to five (5) percent of the bid price.
The "bid guarantees" shall consist of a firm commitment such as a bid bond,
certifies check, or other negotiable instrument accompanying a bid as assurance
that the bidder will, upon acceptance of his bid, execute such contractual
documents as may be required within the time specified.
b. A performance bond on the part to the Contractor for 100 percent of the
contract price. A "performance bond" is one executed in connection with a
contract to secure fulfillment of all the contractor's obligations under such
contract.
c. A payment bond on the part of the contractor for 100 percent of the contract
price. A "payment bond" is one executed in connection with a contract to assure
payment, as required by law, of all persons supplying labor and material in the
execution of the work provided for in the contract. Payment bond amounts
required from Contractors are as follows:
(1) 50% of the contract price if the contract price is not more than $1 million;
(2) 40% of the contract price if the contract price is more than $1 million but not
more than $5 million; or
(3) $2.5 million if the contract price is more than $5 million.
22
Best Practices Procurement Manual — Exhibit C Pane
d. A cash deposit, certified check or other negotiable instrument may be accepted
by a grantee in lieu of performance and payment bonds, provided the grantee has
established a procedure to assure that the interest of FTA is adequately protected.
An irrevocable letter of credit would also satisfy the requirement for a bond.
Flow Down
Bonding requirements flow down to the first tier contractors.
Model Clauses/Languane
FTA does not prescribe specific wording to be included in third party contracts.
FTA has prepared sample clauses as follows:
Bid Bond Requirements (Construction)
(a) Bid Security
A Bid Bond must be issued by a fully qualified surety company acceptable to
(Recipient) and listed as a company currently authorized under 31 CFR, Part 223 as
possessing a Certificate of Authority as described thereunder.
(b) Rights Reserved
In submitting this Bid, it is understood and agreed by bidder that the right is
reserved by (Recipient) to reject any and all bids, or part of any bid, and it is agreed
that the Bid may not be withdrawn for a period of [ninety (90)] days subsequent to
the opening of bids, without the written consent of (Recipient).
It is also understood and agreed that if the undersigned bidder should withdraw any
part or all of his bid within [ninety (90)] days after the bid opening without the
written consent of (Recipient), shall refuse or be unable to enter into this Contract,
as provided above, or refuse or be unable to furnish adequate and acceptable
Performance Bonds and Labor and Material Payments Bonds, as provided above, or
refuse or be unable to furnish adequate and acceptable insurance, as provided
above, he shall forfeit his bid security to the extent of (Recipient's) damages
occasioned by such withdrawal, or refusal, or inability to enter into an agreement,
or provide adequate security therefor.
It is further understood and agreed that to the extent the defaulting bidder's Bid
Bond, Certified Check, Cashier's Check, Treasurer's Check, and/or Official Bank
Check (excluding any income generated thereby which has been retained by
(Recipient) as provided in [Item x "Bid Security" of the Instructions to Bidders])
23
Best Practices Procurement Manual - Exhibit C Pane
shall prove inadequate to fully recompense (Recipient) for the damages occasioned
by default, then the undersigned bidder agrees to indemnify (Recipient) and pay
over to (Recipient) the difference between the bid security and (Recipient's) total
damages, so as to make (Recipient) whole.
The undersigned understands that any material alteration of any of the above or
any of the material contained on this form, other than that requested, will render
the bid unresponsive.
Performance and Payment Bonding Requirements (Construction)
The Contractor shall be required to obtain performance and payment bonds as
follows:
(a) Performance bonds
1. The penal amount of performance bonds shall be 100 percent of the original
contract price, unless the (Recipient) determines that a lesser amount would be
adequate for the protection of the (Recipient).
2. The (Recipient) may require additional performance bond protection when a
contract price is increased. The increase in protection shall generally equal 100
percent of the increase in contract price. The (Recipient) may secure additional
protection by directing the Contractor to increase the penal amount of the existing
bond or to obtain an additional bond.
(b) Payment bonds
1. The penal amount of the payment bonds shall equal:
(i) Fifty percent of the contract price if the contract price is not more than $1
million.
(ii) Forty percent of the contract price if the contract price is more than $1 million
but not more than $5 million; or
(iii) Two and one half million if the contract price is more than $5 million.
2. If the original contract price is $5 million or less, the (Recipient) may require
additional protection as required by subparagraph 1 if the contract price is
increased.
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Best Practices Procurement Manual - Exhibit C Pane
Performance and Payment Bonding Requirements (Non -Construction)
The Contractor may be required to obtain performance and payment bonds when
necessary to protect the (Recipient's) interest.
(a) The following situations may warrant a performance bond:
1. (Recipient) property or funds are to be provided to the contractor for use in
performing the contract or as partial compensation (as in retention of salvaged
material).
2. A contractor sells assets to or merges with another concern, and the
(Recipient), after recognizing the latter concern as the successor in interest, desires
assurance that it is financially capable.
3. Substantial progress payments are made before delivery of end items starts.
4. Contracts are for dismantling, demolition, or removal of improvements.
(b) When it is determined that a performance bond is required, the Contractor shall
be required to obtain performance bonds as follows:
1. The penal amount of performance bonds shall be 100 percent of the original
contract price, unless the (Recipient) determines that a lesser amount would be
adequate for the protection of the (Recipient).
2. The (Recipient) may require additional performance bond protection when a
contract price is increased. The increase in protection shall generally equal 100
percent of the increase in contract price. The (Recipient) may secure additional
protection by directing the Contractor to increase the penal amount of the existing
bond or to obtain an additional bond.
(c) A payment bond is required only when a performance bond is required, and if
the use of payment bond is in the (Recipient's) interest.
(d) When it is determined that a payment bond is required, the Contractor shall be
required to obtain payment bonds as follows:
1. The penal amount of payment bonds shall equal:
25
Best Practices Procurement Manual - Exhibit C Pane
(i) Fifty percent of the contract price if the contract price is not more than $1
Million;
(ii) Forty percent of the contract price if the contract price is more than $1 million
but not more than $5 million; or
(iii) Two and one half million if the contract price is increased.
Advance Payment Bonding Requirements
The Contractor may be required to obtain an advance payment bond if the contract
contains an advance payment provision and a performance bond is not furnished.
The (recipient) shall determine the amount of the advance payment bond necessary
to protect the (Recipient).
Patent Infringement Bonding Requirements (Patent Indemnity)
The Contractor may be required to obtain a patent indemnity bond if a performance
bond is not furnished and the financial responsibility of the Contractor is unknown
or doubtful. The (recipient) shall determine the amount of the patent indemnity to
protect the (Recipient).
Warranty of the Work and Maintenance Bonds
1. The Contractor warrants to (Recipient), the Architect and/or Engineer that all
materials and equipment furnished under this Contract will be of highest quality and
new unless otherwise specified by (Recipient), free from faults and defects and in
conformance with the Contract Documents. All work not so conforming to these
standards shall be considered defective. If
required by the [Project Manager], the Contractor shall furnish satisfactory
evidence as to the kind and quality of materials and equipment.
2. The Work furnished must be of first quality and the workmanship must be the
best obtainable in the various trades. The Work must be of safe, substantial and
durable construction in all respects. The Contractor hereby guarantees the Work
against defective materials or faulty workmanship for a minimum period of one (1)
year after Final Payment by (Recipient) and shall replace or repair any defective
materials or equipment or faulty workmanship during the period of the guarantee at
no cost to (Recipient). As additional security for these guarantees, the Contractor
shall, prior to the release of Final Payment [as provided in Item X below], furnish
26
Best Practices Procurement Manual — Exhibit C Pane
separate Maintenance (or Guarantee) Bonds in form acceptable to (Recipient)
written by the same corporate surety that provides the Performance Bond and
Labor and Material Payment Bond for this Contract. These bonds shall secure the
Contractor's obligation to replace or repair defective materials and faulty
workmanship for a minimum period of one (1) year after Final Payment and shall be
written in an amount equal to ONE HUNDRED PERCENT (100%) of the CONTRACT
SUM, as adjusted (if at all).
14. CLEAN AIR
42 U.S.C. 7401 at seq
40 CFR 15.61
49 CFR Part 18
Applicability to Contracts
The Clean Air requirements apply to all contracts exceeding $100,000, including
indefinite quantities where the amount is expected to exceed $100,000 in any
year.
Flow Down
The Clean Air requirements flow down to all subcontracts which exceed
$100,000.
Model Clauses/Language
No specific language is required. FTA has proposed the following language.
Clean Air - (1) The Contractor agrees to comply with all applicable standards,
orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C.
§ § 7401 et -seg. The Contractor agrees to report each violation to the Purchaser
and understands and agrees that the
Purchaser will, in turn, report each violation as required to assure notification to
FTA and the appropriate EPA Regional Office.
(2) The Contractor also agrees to include these requirements in each subcontract
exceeding $100,000 financed in whole or in part with Federal assistance provided
by FTA.
15. RECYCLED PRODUCTS
42 U.S.C. 6962
40 CFR Part 247
27
Best Practices Procurement Manual - Exhibit C Paae
Executive Order 12873
Applicability to Contracts
The Recycled Products requirements apply to all contracts for items designated by
the EPA, when the purchaser or contractor procures $10,000 or more of one of
these items during the fiscal year, or has procured $10,000 or more of such items
in the previous fiscal year, using Federal funds. New requirements for "recovered
materials" will become effective May 1, 1996. These new regulations apply to all
procurement actions involving items designated by the EPA, where the procuring
agency purchases $10,000 or more of one of these items in a fiscal year, or when
the cost of such items purchased during the previous fiscal year was $10,000.
Flow Down
These requirements flow down to all to all contractor and subcontractor tiers.
Model Clause/Language
No specific clause is mandated, but FTA has developed the following language.
Recovered Materials - The contractor agrees to comply with all the requirements of
Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended
(42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR
Part 247, and Executive Order 12873, as they apply to the procurement of the
items designated in Subpart B of 40 CFR Part 247.
16. D"IS-BACON AND COPELAND ANTI -KICKBACK ACTS
Background and Application
The Davis -Bacon and Copeland Acts are codified at 40 USC 3141, et seq. and 18
USC 874. The Acts apply to grantee construction contracts and subcontracts that
"at least partly are financed by a loan or grant from the Federal Government." 40
USC 3145(a), 29 CFR 5.2(h), 49 CFR 18.36(i)(5). The Acts apply to any
construction contract over $2,000. 40 USC 3142(a), 29 CFR 5.5(a).
'Construction,' for purposes of the Acts, includes "actual construction, alteration
and/or repair, including painting and decorating." 29 CFR 5.5(a). The requirements
of both Acts are incorporated into a single clause (see 29 CFR 3.11) enumerated at
29 CFR 5.5(a) and reproduced below.
The clause language is drawn directly from 29 CFR 5.5(a) and any deviation from
the model clause below should be coordinated with counsel to ensure the Acts'
requirements are satisfied.
28
Best Practices Procurement Manual - Exhibit C Paae
Clause Language
Davis -Bacon and Copeland Anti -
Kickback Acts
(1) Minimum wages - (i) All laborers and mechanics employed or working upon the
site of the work (or under the United States Housing Act of 1937 or under the
Housing Act of 1949 in the construction or development of the project), will be
paid unconditionally and not less often than once a week, and without subsequent
deduction or rebate on any account (except such payroll deductions as are
permitted by regulations issued by the Secretary of Labor under the Copeland Act
(29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash
equivalents thereof) due at time of payment computed at rates not less than those
contained in the wage determination of the Secretary of Labor which is attached
hereto and made a part hereof, regardless of any contractual relationship which
may be alleged to exist between the contractor and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits
under section 1(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are
considered wages paid to such laborers or mechanics, subject to the provisions of
paragraph (1)(iv) of this section; also, regular contributions made or costs incurred
for more than a weekly period (but not less often than quarterly) under plans,
funds, or programs which cover the particular weekly period, are deemed to be
constructively made or incurred during such weekly period. Such laborers and
mechanics shall be paid the appropriate wage rate and fringe benefits on the wage
determination for the classification of work actually performed, without regard to
skill, except as provided in 29 CFR Part 5.5(a)(4). Laborers or mechanics
performing work in more than one classification may be compensated at the rate
specified for each classification for the time actually worked therein: Provided, That
the employer's payroll records accurately set forth the time spent in each
classification in which work is performed. The wage determination (including any
additional classifications and wage rates conformed under paragraph (1)(ii) of this
section) and the Davis -Bacon poster (WH-1321) shall be posted at all times by the
contractor and its subcontractors at the site of the work in a prominent and
accessible place where it can be easily seen by the workers.
(ii)(A) The contracting officer shall require that any class of laborers or mechanics,
including helpers, which is not listed in the wage determination and which is to be
employed under the contract shall be classified in conformance with the wage
29
consent of the City.
10. Acceptance Not Waiver. The City's approval of drawings, designs, plans,
specifications, reports, and incidental work or materials furnished hereunder shall not in anyway
relieve the Professional of responsibility for the quality or technical accuracy of the work. The
City's approval or acceptance of, or payment for, any of the services shall not be construed to
operate as a waiver of any rights or benefits provided to the City under this Agreement.
11. Default. Each and every term and condition hereof shall be deemed to be a
material element of this Agreement. In the event either party should fail or refuse to perform
according to the terms of this agreement, such party may be declared in default.
12. Remedies. In the event a party has been declared in default, such defaulting
party shall be allowed a period of ten (10) days within which to cure said default. In the event the
default remains uncorrected, the party declaring default may elect to (a) terminate the Agreement
and seek damages; (b) treat the Agreement as continuing and require specific performance; or
(c) avail himself of any other remedy at law or equity. If the non -defaulting party commences
legal or equitable actions against the defaulting party, the defaulting party shall be liable to the
non -defaulting party for the non -defaulting party's reasonable attorney fees and costs incurred
because of the default.
13. Binding Effect. This writing, together with the exhibits hereto, constitutes the
entire agreement between the parties and shall be binding upon said parties, their officers,
employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs,
personal representatives, successors and assigns of said parties.
14. Law/Severability. The laws of the State of Colorado shall govern the construction,
interpretation, execution and enforcement of this Agreement. In the event any provision of this
Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision of this Agreement.
17. Prohibition Against Employing Illegal Aliens. This paragraph shall apply to all
4
Best Practices Procurement Manual — Exhibit C Pane
determination. The contracting officer shall approve an additional classification and
wage rate and fringe benefits therefore only when the following criteria have been
met:
(1) Except with respect to helpers as defined as 29 CFR 5.2(n)(4), the work to be
performed by the classification requested is not performed by a classification in the
wage determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a
reasonable relationship to the wage rates contained in the wage determination; and
(4) With respect to helpers as defined in 29 CFR 5.2(n)(4), such a classification
prevails in the area in which the work is performed.
(B) If the contractor and the laborers and mechanics to be employed in the
classification (if known), or their representatives, and the contracting officer agree
on the classification and wage rate (including the amount designated for fringe
benefits where appropriate), a report of the action taken shall be sent by the
contracting officer to the Administrator of the Wage and Hour Division,
Employment Standards Administration, U.S. Department of Labor, Washington, DC
20210. The Administrator, or an authorized representative, will approve, modify,
or disapprove every additional classification action within 30 days of receipt and so
advise the contracting officer or will notify the contracting officer within the 30-
day period that additional time is necessary.
(C) In the event the contractor, the laborers or mechanics to be employed in the
classification or their representatives, and the contracting officer do not agree on
the proposed classification and wage rate (including the amount designated for
fringe benefits, where appropriate), the contracting officer shall refer the questions,
including the views of all interested parties and the recommendation of the
contracting officer, to the Administrator for determination. The Administrator, or
an authorized representative, will issue a determination within 30 days of receipt
and so advise the contracting officer or will notify the contracting officer within the
30-day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined
pursuant to paragraphs (a)(1)(ii) (B) or (C) of this section, shall be paid to all
workers performing work in the classification under this contract from the first day
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Best Practices Procurement Manual — Exhibit C Paoe
on which work is performed in the classification.
(iii) 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
rate, the contractor shall either pay the benefit as stated in the wage determination
or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
(iv) If the contractor does not make payments to a trustee or other third person,
the contractor may consider as part of the wages of any laborer or mechanic the
amount of any costs reasonably anticipated in providing bona fide fringe benefits
under a plan or program, Provided, That the Secretary of Labor has found, upon the
written request of the contractor, that the applicable standards of the Davis -Bacon
Act have been met. The Secretary of Labor may require the contractor to set aside
in a separate account assets for the meeting of obligations under the plan or
program.
M(A) The contracting officer shall require that any class of laborers or mechanics
which is not listed in the wage determination and which is to be employed under
the contract shall be classified in conformance with the wage determination. The
contracting officer shall approve an additional classification and wage rate and
fringe benefits therefor only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a
classification in the wage determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a
reasonable relationship to the wage rates contained in the wage determination.
(B) If the contractor and the laborers and mechanics to be employed in the
classification (if known), or their representatives, and the contracting officer agree
on the classification and wage rate (including the amount designated for fringe
benefits where appropriate), a report of the action taken shall be sent by the
contracting officer to the Administrator of the Wage and Hour Division,
Employment Standards Administration, Washington, DC 20210. The
Administrator, or an authorized representative, will approve, modify, or disapprove
every additional classification action within 30 days of receipt and so advise the
contracting officer or will notify the contracting officer within the 30-day period
that additional time is necessary.
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Best Practices Procurement Manual - Exhibit C Pane
(C) In the event the contractor, the laborers or mechanics to be employed in the
classification or their representatives, and the contracting officer do not agree on
the proposed classification and wage rate (including the amount designated for
fringe benefits, where appropriate), the contracting officer shall refer the questions,
including the views of all interested parties and the recommendation of the
contracting officer, to the Administrator for determination. The Administrator, or
an authorized representative, will issue a determination with 30 days of receipt and
so advise the contracting officer or will notify the contracting officer within the 30-
day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined
pursuant to paragraphs (a)(1)(v) (B) or (C) of this section, shall be paid to all
workers performing work in the classification under this contract from the first day
on which work is performed in the classification.
(2) Withholding - The [ insert name of grantee ] shall upon its own action or upon
written request of an authorized representative of the Department of Labor
withhold or cause to be withheld from the contractor under this contract or any
other Federal contract with the same prime contractor, or any other federally -
assisted contract subject to Davis -Bacon prevailing wage requirements, which is
held by the same prime contractor, so much of the accrued payments or advances
as may be considered necessary to pay laborers and mechanics, including
apprentices, trainees, and helpers, employed by the contractor or any
subcontractor the full amount of wages required by the contract. In the event of
failure to pay any laborer or mechanic, including any apprentice, trainee, or helper,
employed or working on the site of the work (or under the United States Housing
Act of 1937 or under the Housing Act of 1949 in the construction or development
of the project), all or part of the wages required by the contract, the [ insert name
of grantee ) may, after written notice to the contractor, sponsor, applicant, or
owner, take such action as may be necessary to cause the suspension of any
further payment, advance, or guarantee of funds until such violations have ceased.
(3) Payrolls and basic records - (i) Payrolls and basic records relating thereto shall
be maintained by the contractor during the course of the work and preserved for a
period of three years thereafter for all laborers and mechanics working at the site
of the work (or under the United States Housing Act of 1937, or under the Housing
Act of 1949, in the construction or development of the project). Such records
shall contain the name, address, and social security number of each such worker,
his or her correct classification, hourly rates of wages paid (including rates of
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Best Practices Procurement Manual — Exhibit C Pane
contributions or costs anticipated for bona fide fringe benefits or cash equivalents
thereof of the types described in section 1(b)(2)(B) of the Davis -Bacon Act), daily
and weekly number of hours worked, deductions made and actual wages paid.
Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the
wages of any laborer or mechanic include the amount of any costs reasonably
anticipated in providing benefits under a plan or program described in section
1(b)(2)(B) of the Davis -Bacon Act, the contractor shall maintain records which
show that the commitment to provide such benefits is enforceable, that the plan or
program is financially responsible, and that the plan or program has been
communicated in writing to the laborers or mechanics affected, and records which
show the costs anticipated or the actual cost incurred in providing such benefits.
Contractors employing apprentices or trainees under approved programs shall
maintain written evidence of the registration of apprenticeship programs and
certification of trainee programs, the registration of the apprentices and trainees,
and the ratios and wage rates prescribed in the applicable programs.
(ii)(A) The contractor shall submit weekly for each week in which any contract
work is performed a copy of all payrolls to the [ insert name of grantee ] for
transmission to the Federal Transit Administration. The payrolls submitted shall set
out accurately and completely all of the information required to be maintained
under section 5.5(a)(3)(i) of Regulations, 29 CFR part 5. This information may be
submitted in any form desired. Optional Form WH-347 is available for this purpose
and may be purchased from the Superintendent of Documents (Federal Stock
Number 029-005-00014-1), U.S. Government Printing Office, Washington, DC
20402. The prime contractor is responsible for the submission of copies of
payrolls by all subcontractors.
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance,"
signed by the contractor or subcontractor or his or her agent who pays or
supervises the payment of the persons employed under the contract and shall
certify the following:
(1) That the payroll for the payroll period contains the information required to be
maintained under section 5.5(a)(3)(i) of Regulations, 29 CFR part 5 and that such
information is correct and complete;
(2) That each laborer or mechanic (including each helper, apprentice, and trainee)
employed on the contract during the payroll period has been paid the full weekly
wages earned, without rebate, either directly or indirectly, and that no deductions
have been made either directly or indirectly from the full wages earned, other than
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permissible deductions as set forth in Regulations, 29 CFR part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage
rates and fringe benefits or cash equivalents for the classification of work
performed, as specified in the applicable wage determination incorporated into the
contract.
(C) The weekly submission of a properly executed certification set forth on the
reverse side of Optional Form WH-347 shall satisfy the requirement for submission
of the "Statement of Compliance" required by paragraph (a)(3)(ii)(B) of this section.
(D) The falsification of any of the above certifications may subject the contractor or
subcontractor to civil or criminal prosecution under section 1001 of title 18 and
section 231 of title 31 of the United States Code.
(iii) The contractor or subcontractor shall make the records required under
paragraph (a)(3)(i) of this section available for inspection, copying, or transcription
by authorized representatives of the Federal Transit Administration or the
Department of Labor, and shall permit such representatives to interview employees
during working hours on the job. If the contractor or subcontractor fails to submit
the required records or to make them available, the Federal agency may, after
written notice to the contractor, sponsor, applicant, or owner, take such action as
may be necessary to cause the suspension of any further payment, advance, or
guarantee of funds. Furthermore, failure to submit the required records upon
request or to make such records available may be grounds for debarment action
pursuant to 29 CFR 5.12.
(4) Apprentices and trainees - (i) Apprentices - Apprentices will be permitted to
work at less than the predetermined rate for the work they performed when they
are employed pursuant to and individually registered in a bona fide apprenticeship
program registered with the U.S. Department of Labor, Employment and Training
Administration, Bureau of Apprenticeship and Training, or with a State
Apprenticeship Agency recognized by the Bureau, or if a person is employed in his
or her first 90 days of probationary employment as an apprentice in such an
apprenticeship program, who is not individually registered in the program, but who
has been certified by the Bureau of Apprenticeship and Training or a State
Apprenticeship Agency (where appropriate) to be eligible for probationary
employment as an apprentice. The allowable ratio of apprentices to journeymen on
the job site in any craft classification shall not be greater than the ratio permitted
to the contractor as to the entire work force under the registered program. Any
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worker listed on a payroll at an apprentice wage rate, who is not registered or
otherwise employed as stated above, shall be paid not less than the applicable
wage rate on the wage determination for the classification of work actually
performed. In addition, any apprentice performing work on the job site in excess of
the ratio permitted under the registered program shall be paid not less than the
applicable wage rate on the wage determination for the work actually performed.
Where a contractor is performing construction on a project in a locality other than
that in which its program is registered, the ratios and wage rates (expressed in
percentages of the journeyman's hourly rate) specified in the contractor's or
subcontractor's registered program shall be observed. Every apprentice must be
paid at not less than the rate specified in the registered program for the
apprentice's level of progress, expressed as a percentage of the journeymen hourly
rate specified in the applicable wage determination. Apprentices shall be paid fringe
benefits in accordance with the provisions of the apprenticeship program. If the
apprenticeship program does not specify fringe benefits, apprentices must be paid
the full amount of fringe benefits listed on the wage determination for the
applicable classification. If the Administrator of the Wage and Hour Division of the
U.S. Department of Labor determines that a different practice prevails for the
applicable apprentice classification, fringes shall be paid in accordance with that
determination. In the event the Bureau of Apprenticeship and Training, or a State
Apprenticeship Agency recognized by the Bureau, withdraws approval of an
apprenticeship program, the contractor will no longer be permitted to utilize
apprentices at less than the applicable predetermined rate for the work performed
until an acceptable program is approved.
(ii) Trainees - Except as provided in 29 CFR 5.16, trainees will not be permitted to
work at less than the predetermined rate for the work performed unless they are
employed pursuant to and individually registered in a program which has received
prior approval, evidenced by formal certification by the U.S. Department of Labor,
Employment and Training Administration. The ratio of trainees to journeymen on
the job site shall not be greater than permitted under the plan approved by the
Employment and Training Administration. Every trainee must be paid at not less
than the rate specified in the approved program for the trainee's level of progress,
expressed as a percentage of the journeyman hourly rate specified in the applicable
wage determination. Trainees shall be paid fringe benefits in accordance with the
provisions of the trainee program. If the trainee program does not mention fringe
benefits, trainees shall be paid the full amount of fringe benefits listed on the wage
determination unless the Administrator of the Wage and Hour Division determines
that there is an apprenticeship program associated with the corresponding
journeyman wage rate on the wage determination which provides for less than full
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Best Practices Procurement Manual - Exhibit C Pane
fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate
who is not registered and participating in a training plan approved by the
Employment and Training Administration shall be paid not less than the applicable
wage rate on the wage determination for the classification of work actually
performed. In addition, any trainee performing work on the job site in excess of
the ratio permitted under the registered program shall be paid not less than the
applicable wage rate on the wage determination for the work actually performed.
In the event the Employment and Training Administration withdraws approval of a
training program, the contractor will no longer be permitted to utilize trainees at
less than the applicable predetermined rate for the work performed until an
acceptable program is approved.
(iii) Equal employment opportunity - The utilization of apprentices, trainees and
journeymen under this part shall be in conformity with the equal employment
opportunity requirements of Executive Order 11246, as amended, and 29 CFR part
30.
(5) Compliance with Copeland Act requirements - The contractor shall comply with
the requirements of 29 CFR part 3, which are incorporated by reference in this
contract.
(6) Subcontracts - The contractor or subcontractor shall insert in any subcontracts
the clauses contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as
the Federal Transit Administration may by appropriate instructions require, and also
a clause requiring the subcontractors to include these clauses in any lower tier
subcontracts. The prime contractor shall be responsible for the compliance by any
subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR
5.5.
(7) Contract termination: debarment - A breach of the contract clauses in 29 CFR
5.5 may be grounds for termination of the contract, and for debarment as a
contractor and a subcontractor as provided in 29 CFR 5.12.
(8) Compliance with Davis -Bacon and Related Act requirements - All rulings and
interpretations of the Davis -Bacon and Related Acts contained in 29 CFR parts 1,
3, and 5 are herein incorporated by reference in this contract.
(9) Disputes concerning labor standards - Disputes arising out of the labor
standards provisions of this contract shall not be subject to the general disputes
clause of this contract. Such disputes shall be resolved in accordance with the
procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7.
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Disputes within the meaning of this clause include disputes between the contractor
(or any of its subcontractors) and the contracting agency, the U.S. Department of
Labor, or the employees or their representatives.
0 0) Certification of eligibility - (i) By entering into this contract, the contractor
certifies that neither it (nor he or she) nor any person or firm who has an interest in
the contractor's firm is a person or firm ineligible to be awarded Government
contracts by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible
for award of a Government contract by virtue of section 3(a) of the Davis -Bacon
Act or 29 CFR 5.12(a)(1).
(iii) The penalty for making false statements is prescribed in the U.S. Criminal
Code, 18 U.S.C. 1001.
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17. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
Background and Application
The Contract Work Hours and Safety Standards Act is codified at 40 USC 3701, et
seq. The Act applies to grantee contracts and subcontracts "financed at least in
part by loans or grants from ... the [Federal] Government." 40 USC
3701(b)(1)(13)(iii) and (b)(2), 29 CFR 5.2(h), 49 CFR 18.36(i)(6). Although the
original Act required its application in any construction contract over $2,000 or
non -construction contract to which the Act applied over $2,500 (and language to
that effect is still found in 49 CFR 18.36(i)(6)), the Act no longer applies to any
"contract in an amount that is not greater than $100,000." 40 USC 3701(b)(3)
(A)(iii).
The Act applies to construction contracts and, in very limited circumstances, non -
construction projects that employ "laborers or mechanics on a public work." These
non -construction applications do not generally apply to transit procurements
because transit procurements (to include rail cars and buses) are deemed
"commercial items." 40 USC 3707, 41 USC 403 (12). A grantee that
contemplates entering into a contract to procure a developmental or unique item
should consult counsel to determine if the Act applies to that procurement and that
additional language required by 29 CFR 5.5(c) must be added to the basic clause
below.
The clause language is drawn directly from 29 CFR 5.5(b) and any deviation from
the model clause below should be coordinated with counsel to ensure the Act's
requirements are satisfied.
Clause Lannuane
Contract Work Hours and Safety Standards
(1) Overtime requirements - No contractor or subcontractor contracting for any part
of the contract work which may require or involve the employment of laborers or
mechanics shall require or permit any such laborer or mechanic in any workweek in
which he or she is employed on such work to work in excess of forty hours in such
workweek unless such laborer or mechanic receives compensation at a rate not
less than one and one-half times the basic rate of pay for all hours worked in
excess of forty hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages - In the event of any
violation of the clause set forth in paragraph (1) of this section the contractor and
any subcontractor responsible therefor shall be liable for the unpaid wages. In
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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, including watchmen and guards, employed in
violation of the clause set forth in paragraph (1) of this section, in the sum of $10
for each calendar day on which such individual was required or permitted to work
in excess of the standard workweek of forty hours without payment of the
overtime wages required by the clause set forth in paragraph (1) of this section.
(3) Withholding for unpaid wages and liquidated damages - The (write in the name
of the grantee) shall upon its own action or upon written request of an authorized
representative of the Department of Labor withhold or cause to be withheld, from
any moneys payable on account of work performed by the contractor or
subcontractor under any such contract or any other Federal contract with the same
prime contractor, or any other federally -assisted contract subject to the Contract
Work Hours and Safety Standards Act, which is held by the same prime contractor,
such sums as may be determined to be necessary to satisfy any liabilities of such
contractor or subcontractor for unpaid wages and liquidated damages as provided
in the clause set forth in paragraph (2) of this section.
(4) Subcontracts - The contractor or subcontractor shall insert in any subcontracts
the clauses set forth in paragraphs (1) through (4) of this section and also a clause
requiring the subcontractors to include these clauses in any lower tier
subcontracts. The prime contractor shall be responsible for compliance by any
subcontractor or lower tier subcontractor with the clauses set forth in paragraphs
(1) through (4) of this section.
18. [ RESERVED l
19. NO GOVERNMENT OBLIGATION TO THIRD PARTIES
Applicability to Contracts
Applicable to all contracts.
Flow Down
Not required by statute or regulation for either primary contractors or
subcontractors, this concept should flow down to all levels to clarify, to all parties
to the contract, that the Federal Government does not have contractual liability to
third parties, absent specific written consent.
39
Contractors whose performance of work under this Agreement does not involve the delivery of a
specific end product other than reports that are merely incidental to the performance of said
work. Pursuant to Section 8-17.5-101, C.R.S., et. seq., Contractor represents and agrees that:
A. As of the date of this Agreement:
Contractor does not knowingly employ or contract with an illegal alien;
and
2. Contractor has participated or attempted to participate in the basic pilot
employment verification program created in Public Law 208, 104th
Congress, as amended, and expanded in Public Law 156, 108th
Congress, as amended, administered by the United States Department
of Homeland Security (the "Basic Pilot Program") in order to verify that
Contractor does not employ any illegal aliens.
B. Contractor shall not knowingly employ or contract with an illegal alien to
perform works under this Agreement or enter into a contract with a
subcontractor that fails to certify to Contractor that the subcontractor shall
not knowingly employ or contract with an illegal alien to perform work under
this Agreement.
C. Contractor shall continue to apply to participate in the Basic Pilot Program
and shall in writing verify same every three (3) calendar months thereafter,
until Contractor is accepted or the public contract for services has been
completed, whichever is earlier. The requirements of this section shall not
be required or effective if the Basic Pilot Program is discontinued.
D. Contractor is prohibited from using Basic Pilot Program procedures to
undertake pre -employment screening of job applicants while this
Agreement is being performed.
E. If Contractor obtains actual knowledge that a subcontractor performing
work under this Agreement knowingly employs or contracts with an illegal
alien, Contractor shall:
1. Notify such subcontractor and the City within three days that Contractor
has actual knowledge that the subcontractor is employing or contracting
with an illegal alien; and
2. Terminate the subcontract with the subcontractor if within three days of
receiving the notice required pursuant to this section the subcontractor
does not cease employing or contracting with the illegal alien; except
that Contractor shall not terminate the contract with the subcontractor if
during such three days the subcontractor provides information to
establish that the subcontractor has not knowingly employed or
contracted with an illegal alien.
F. Contractor shall comply with any reasonable request by the Colorado
Department of Labor and Employment (the "Department") made in the
Best Practices Procurement Manual — Exhibit C page
Model Clause/Language
While no specific language is required, FTA has developed the following language.
No Obligation by the Federal Government.
(1) The Purchaser and Contractor acknowledge and agree that, notwithstanding
any concurrence by the Federal Government in or approval of the solicitation or
award of the underlying contract, absent the express written consent by the
Federal Government, the Federal Government is not a party to this contract and
shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or
any other party (whether or not a party to that contract) pertaining to any matter
resulting from the underlying contract.
(2) The Contractor agrees to include the above clause in each subcontract financed
in whole or in part with Federal assistance provided by FTA. It is further agreed
that the clause shall not be modified, except to identify the subcontractor who will
be subject to its provisions.
20. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS
AND RELATED ACTS
31 U.S.C. 3801 at seq.
49 CFR Part 31 18 U.S.C. 1001
49 U.S.C. 5307
Applicability to Contracts
These requirements are applicable to all contracts.
Flow Down
These requirements flow down to contractors and subcontractors who make,
present, or submit covered claims and statements.
Model Clause/Language
These requirements have no specified language, so FTA proffers the following
language.
Program Fraud and False or Fraudulent Statements or Related Acts.
(1) The Contractor acknowledges that the provisions of the Program Fraud Civil
Best Practices Procurement Manual — Exhibit C Pane
Remedies Act of 1986, as amended, 31 U.S.C. § 3801 at seq. and U.S. DOT
regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions
pertaining to this Project. Upon execution of the underlying contract, the
Contractor certifies or affirms the truthfulness and accuracy of any statement it
has made, it makes, it may make, or causes to be made, pertaining to the
underlying contract or the FTA assisted project for which this contract work is
being performed. In addition to other penalties that may be applicable, the
Contractor further acknowledges that if it makes, or causes to be made, a false,
fictitious, or fraudulent claim, statement, submission, or certification, the Federal
Government reserves the right to impose the penalties of the Program Fraud Civil
Remedies Act of 1986 on the Contractor to the extent the Federal Government
deems appropriate.
(2) The Contractor also acknowledges that if it makes, or causes to be made, a
false, fictitious, or fraudulent claim, statement, submission, or certification to the
Federal Government under a contract connected with a project that is financed in
whole or in part with Federal assistance originally awarded by FTA under the
authority of 49 U.S.C. § 5307, the Government reserves the right to impose the
penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to
the extent the Federal Government deems appropriate.
(3) The Contractor agrees to include the above two clauses in each subcontract
financed in whole or in part with Federal assistance provided by FTA. It is further
agreed that the clauses shall not be modified, except to identify the subcontractor
who will be subject to the provisions.
21. TERMINATION
49 U.S.C. Part 18
FTA Circular 4220.1 E
Applicability to Contracts
All contracts (with the exception of contracts with nonprofit organizations and
institutions of higher education,) in excess of $10,000 shall contain suitable
provisions for termination by the grantee including the manner by which it will be
effected and the basis for settlement. (For contracts with nonprofit organizations
and institutions of higher education the threshold is $100,000.) In addition, such
contracts shall describe conditions under which the contract may be terminated for
default as well as conditions where the contract may be terminated because of
circumstances beyond the control of the contractor.
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Best Practices Procurement Manual — Exhibit C Paue
Flow Down
The termination requirements flow down to all contracts in excess of $10,000,
with the exception of contracts with nonprofit organizations and institutions of
higher learning.
Model Clause/Language
FTA does not prescribe the form or content of such clauses. The following are
suggestions of clauses to be used in different types of contracts:
a. Termination for Convenience (General Provision) The (Recipient) may terminate
this contract, in whole or in part, at any time by written notice to the Contractor
when it is in the Government's best interest. The Contractor shall be paid its
costs, including contract close-out costs, and profit on work performed up to the
time of termination. The Contractor shall promptly submit its termination claim to
(Recipient) to be paid the Contractor. If the Contractor has any property in its
possession belonging to the (Recipient), the Contractor will account for the same,
and dispose of it in the manner the (Recipient) directs.
b. Termination for Default [Breach or Cause] (General Provision) If the Contractor
does not deliver supplies in accordance with the contract delivery schedule, or, if
the contract is for services, the Contractor fails to perform in the manner called for
in the contract, or if the Contractor fails to comply with any other provisions of the
contract, the (Recipient) may terminate this contract for default. Termination shall
be effected by serving a notice of termination on the contractor setting forth the
manner in which the Contractor is in default. The contractor will only be paid the
contract price for supplies delivered and accepted, or services performed in
accordance with the manner of performance set forth in the contract.
If it is later determined by the (Recipient) that the Contractor had an excusable
reason for not performing, such as a strike, fire, or flood, events which are not the
fault of or are beyond the control of the Contractor, the (Recipient), after setting up
a new delivery of performance schedule, may allow the Contractor to continue
work, or treat the termination as a termination for convenience.
c. Opportunity to Cure (General Provision) The (Recipient) in its sole discretion
may, in the case of a termination for breach or default, allow the Contractor [an
appropriately short period of time] in which to cure the defect. In such case, the
notice of termination will state the time period in which cure is permitted and other
appropriate conditions
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If Contractor fails to remedy to (Recipient)'s satisfaction the breach or default of
any of the terms, covenants, or conditions of this Contract within [ten (10) days]
after receipt by Contractor of written notice from (Recipient) setting forth the
nature of said breach or default, (Recipient) shall have the right to terminate the
Contract without any further obligation to Contractor. Any such termination for
default shall not in any way operate to preclude (Recipient) from also pursuing all
available remedies against Contractor and its sureties for said breach or default.
d. Waiver of Remedies for any Breach In the event that (Recipient) elects to waive
its remedies for any breach by Contractor of any covenant, term or condition of
this Contract, such waiver by (Recipient) shall not limit (Recipient)'s remedies for
any succeeding breach of that or of any other term, covenant, or condition of this
Contract.
e. Termination for Convenience (Professional or Transit Service Contracts) The
(Recipient), by written notice, may terminate this contract, in whole or in part,
when it is in the Government's interest. If this contract is terminated, the
Recipient shall be liable only for payment under the payment provisions of this
contract for services rendered before the effective date of termination.
f. Termination for Default (Supplies and Service) If the Contractor fails to deliver
supplies or to perform the services within the time specified in this contract or any
extension or if the Contractor fails to comply with any other provisions of this
contract, the (Recipient) may terminate this contract for default. The (Recipient)
shall terminate by delivering to the Contractor a Notice of Termination specifying
the nature of the default. The Contractor will only be paid the contract price for
supplies delivered and accepted, or services performed in accordance with the
manner or performance set forth in this contract.
If, after termination for failure to fulfill contract obligations, it is determined that
the Contractor was not in default, the rights and obligations of the parties shall be
the same as if the termination had been issued for the convenience of the
Recipient.
g. Termination for Default (Transportation Services) If the Contractor fails to pick
up the commodities or to perform the services, including delivery services, within
the time specified in this contract or any extension or if the Contractor fails to
comply with any other provisions of this contract, the (Recipient) may terminate
this contract for default. The (Recipient) shall terminate by delivering to the
Contractor a Notice of Termination specifying the nature of default. The
Contractor will only be paid the contract price for services performed in accordance
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Best Practices Procurement Manual — Exhibit C Page
with the manner of performance set forth in this contract.
If this contract is terminated while the Contractor has possession of Recipient
goods, the Contractor shall, upon direction of the (Recipient), protect and preserve
the goods until surrendered to the Recipient or its agent. The Contractor and
(Recipient) shall agree on payment for the preservation and protection of goods.
Failure to agree on an amount will be resolved under the Dispute clause.
If, after termination for failure to fulfill contract obligations, it is determined that
the Contractor was not in default, the rights and obligations of the parties shall be
the same as if the termination had been issued for the convenience of the
(Recipient).
h. Termination for Default (Construction) If the Contractor refuses or fails to
prosecute the work or any separable part, with the diligence that will insure its
completion within the time specified in this contract or any extension or fails to
complete the work within this time, or if the Contractor fails to comply with any
other provisions of this contract, the (Recipient) may terminate this contract for
default. The (Recipient) shall terminate by delivering to the Contractor a Notice of
Termination specifying the nature of the default. In this event, the Recipient may
take over the work and compete it by contract or otherwise, and may take
possession of and use any materials, appliances, and plant on the work site
necessary for completing the work. The Contractor and its sureties shall be liable
for any damage to the Recipient resulting from the Contractor's refusal or failure to
complete the work within specified time, whether or not the Contractor's right to
proceed with the work is terminated. This liability includes any increased costs
incurred by the Recipient in completing the work.
The Contractor's right to proceed shall not be terminated nor the Contractor
charged with damages under this clause if-
1. the delay in completing the work arises from unforeseeable causes beyond the
control and without the fault or negligence of the Contractor. Examples of such
causes include: acts of God, acts of the Recipient, acts of another Contractor in
the performance of a contract with the Recipient, epidemics, quarantine
restrictions, strikes, freight embargoes; and
2. the contractor, within [101 days from the beginning of any delay, notifies the
(Recipient) in writing of the causes of delay. If in the judgment of the (Recipient),
the delay is excusable, the time for completing the work shall be extended. The
judgment of the (Recipient) shall be final and conclusive on the parties, but subject
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Best Practices Procurement Manual - Exhibit C Paae
to appeal under the Disputes clauses.
If, after termination of the Contractor's right to proceed, it is determined that the
Contractor was not in default, or that the delay was excusable, the rights and
obligations of the parties will be the same as if the termination had been issued for
the convenience of the Recipient.
i. Termination for Convenience or Default (Architect and Engineering) The
(Recipient) may terminate this contract in whole or in part, for the Recipient's
convenience or because of the failure of the Contractor to fulfill the contract
obligations. The (Recipient) shall terminate by delivering to the Contractor a Notice
of Termination specifying the nature, extent, and effective date of the termination.
Upon receipt of the notice, the Contractor shall (1) immediately discontinue all
services affected (unless the notice directs otherwise), and (2) deliver to the
Contracting Officer all data, drawings, specifications, reports, estimates,
summaries, and other information and materials accumulated in performing this
contract, whether completed or in process.
If the termination is for the convenience of the Recipient, the Contracting Officer
shall make an equitable adjustment in the contract price but shall allow no
anticipated profit on unperformed services.
If the termination is for failure of the Contractor to fulfill the contract obligations,
the Recipient may complete the work by contact or otherwise and the Contractor
shall be liable for any additional cost incurred by the Recipient.
If, after termination for failure to fulfill contract obligations, it is determined that
the Contractor was not in default, the rights and obligations of the parties shall be
the same as if the termination had been issued for the convenience of the
Recipient.
j. Termination for Convenience of Default (Cost -Type Contracts) The (Recipient)
may terminate this contract, or any portion of it, by serving a notice or termination
on the Contractor. The notice shall state whether the termination is for
convenience of the (Recipient) or for the default of the Contractor. If the
termination is for default, the notice shall state the manner in which the contractor
has failed to perform the requirements of the contract. The Contractor shall
account for any property in its possession paid for from funds received from the
(Recipient), or property supplied to the Contractor by the (Recipient). If the
termination is for default, the (Recipient) may fix the fee, if the contract provides
for a fee, to be paid the contractor in proportion to the value, if any, of work
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performed up to the time of termination. The Contractor shall promptly submit its
termination claim to the (Recipient) and the parties shall negotiate the termination
settlement to be paid the Contractor.
If the termination is for the convenience of the (Recipient), the Contractor shall be
paid its contract close-out costs, and a fee, if the contract provided for payment of
a fee, in proportion to the work performed up to the time of termination.
If, after serving a notice of termination for default, the (Recipient) determines that
the Contractor has an excusable reason for not performing, such as strike, fire,
flood, events which are not the fault of and are beyond the control of the
contractor, the (Recipient), after setting up a new work schedule, may allow the
Contractor to continue work, or treat the termination as a termination for
convenience.
22. GOVERNMENT -WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Backaround and Awlicability
In conjunction with the Office of Management and Budget and other affected
Federal agencies, DOT published an update to 49 CFR Part 29 on November 26,
2003. This government -wide regulation implements Executive order 12549, Debarment
and Suspension, Executive Order 12689, Debarment and Suspension, and 31 U.S.C. 6101 note
(Section 2455, Public Law 103-355, 108 Stat. 3327).
The provisions of Part 29 apply to all grantee contracts and subcontracts at any
level expected to equal or exceed $25,000 as well as any contract or subcontract
(at any level) for Federally required auditing services. 49 CFR 29.220(b). This
represents a change from prior practice in that the dollar threshold for application
of these rules has been lowered from $100,000 to $25,000. These are contracts
and subcontracts referred to in the regulation as "covered transactions."
Grantees, contractors, and subcontractors (at any level) that enter into covered
transactions are required to verify that the entity (as well as its principals and
affiliates) they propose to contract or subcontract with is not excluded or
disqualified. They do this by (a) Checking the Excluded Parties List System, (b) Collecting a
certification from that person, or (c) Adding a clause or condition to the contract or subcontract.
This represents a change from prior practice in that certification is still acceptable but is no longer
required. 49 CFR 29.300.
Grantees, contractors, and subcontractors who enter into covered transactions also must require
the entities they contract with to comply with 49 CFR 29, subpart C and include this requirement
in their own subsequent covered transactions (i.e., the requirement flows down to subcontracts
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at all levels).
Clause Language
The following clause language is suggested, not mandatory. It incorporates the
optional method of verifying that contractors are not excluded or disqualified by
certification.
Suspension and Debarment
This contract is a covered transaction for purposes of 49 CFR Part 29.
As such, the contractor is required to verify that none of the
contractor, its principals, as defined at 49 CFR 29.995, or affiliates,
as defined at 49 CFR 29.905, are excluded or disqualified as defined
at 49 CFR 29.940 and 29.945.
The contractor is required to comply with 49 CFR 29, Subpart C and
must include the requirement to comply with 49 CFR 29, Subpart C in
any lower tier covered transaction it enters into.
By signing and submitting its bid or proposal, the bidder or proposer
certifies as follows:
The certification in this clause is a material representation of fact
relied upon by (insert agency name). If it is later determined that the
bidder or proposer knowingly rendered an erroneous certification, in
addition to remedies available to {insert agency name}, the Federal
Government may pursue available remedies, including but not limited
to suspension and/or debarment. The bidder or proposer agrees to
comply with the requirements of 49 CFR 29, Subpart C while this
offer is valid and throughout the period of any contract that may arise
from this offer. The bidder or proposer further agrees to include a
provision requiring such compliance in its lower tier covered
transactions.
23. PRIVACY ACT
5 U.S.C. 552
Applicability to Contracts
When a grantee maintains files on drug and alcohol enforcement activities for FTA,
and those files are organized so that information could be retrieved by personal
identifier, the Privacy Act requirements apply to all contracts.
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Flow Down
The Federal Privacy Act requirements flow down to each third party contractor and
their contracts at every tier.
Model Clause/Language
The text of the following clause has not been mandated by statute or specific
regulation, but has been developed by FTA.
Contracts Involving Federal Privacy Act Requirements - The following requirements
apply to the Contractor and its employees that administer any system of records on
behalf of the Federal Government under any contract:
(1) The Contractor agrees to comply with, and assures the compliance of its
employees with, the information restrictions and other applicable requirements of
the Privacy Act of 1974,
5 U.S.C. § 552a. Among other things, the Contractor agrees to obtain the express
consent of the Federal Government before the Contractor or its employees operate
a system of records on behalf of the Federal Government. The Contractor
understands that the requirements of the Privacy Act, including the civil and
criminal penalties for violation of that Act, apply to those individuals involved, and
that failure to comply with the terms of the Privacy Act may result in termination
of the underlying contract.
(2) The Contractor also agrees to include these requirements in each subcontract to
administer any system of records on behalf of the Federal Government financed in
whole or in part with Federal assistance provided by FTA.
24. CIVIL RIGHTS REQUIREMENTS
29 U.S.C. § 623, 42 U.S.C. § 2000
42 U.S.C. § 6102, 42 U.S.C. § 12112
42 U.S.C. § 12132, 49 U.S.C. § 5332
29 CFR Part 1630, 41 CFR Parts 60 at seq.
Applicability to Contracts
The Civil Rights Requirements apply to all contracts.
Flow Down
The Civil Rights requirements flow down to all third party contractors and their
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contracts at every tier.
Model Clause/Language
The following clause was predicated on language contained at 49 CFR Part 19,
Appendix A, but FTA has shortened the lengthy text.
Civil Rights - The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as
amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975,
as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act
of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the
Contractor agrees that it will not discriminate against any employee or applicant for
employment because of race, color, creed, national origin, sex, age, or disability.
In addition, the Contractor agrees to comply with applicable Federal implementing
regulations and other implementing requirements FTA may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity
requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin Sex - In accordance with Title VII of the
Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49
U.S.C. § 5332, the Contractor agrees to comply with all applicable equal
employment opportunity requirements of U.S. Department of Labor (U.S. DOL)
regulations, "Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seg., (which implement
Executive Order No. 11246, "Equal Employment Opportunity," as amended by
Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal
Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable
Federal statutes, executive orders, regulations, and Federal policies that may in the
future affect construction activities undertaken in the course of the Project. The
Contractor agrees to take affirmative action to ensure that applicants are
employed, and that employees are treated during employment, without regard to
their race, color, creed, national origin, sex, or age. Such action shall include, but
not be limited to, the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising, layoff or termination; rates of pay or other
forms of compensation; and selection for training, including apprenticeship. In
addition, the Contractor agrees to comply with any implementing requirements FTA
may issue.
(b) Age - In accordance with section 4 of the Age Discrimination in Employment
49
course of an investigation that the Department undertakes or is undertaking
pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S.
G. If Contractor violates any provision of this Agreement pertaining to the
duties imposed by Subsection 8-17.5-102, C.R.S. the City may terminate
this Agreement. If this Agreement is so terminated, Contractor shall be
liable for actual and consequential damages to the City arising out of
Contractor's violation of Subsection 8-17.5-102, C.R.S.
H. The City will notify the Office of the Secretary of State if Contractor violates
this provision of this Agreement and the City terminates the Agreement for
such breach.
15. Special Provisions. Special provisions or conditions relating to the services to be
performed pursuant to this Agreement are set forth in Exhibit "C", consisting of fifty-eight (58)
pages, attached hereto and incorporated herein by this reference.
Best Practices Procurement Manual - Exhibit C Page
Act of 1967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C.
§ 5332, the Contractor agrees to refrain from discrimination against present and
prospective employees for reason of age. In addition, the Contractor agrees to
comply with any implementing requirements FTA may issue.
(c) Disabilities - In accordance with section 102 of the Americans with Disabilities
Act, as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply
with the requirements of U.S. Equal Employment Opportunity Commission,
"Regulations to Implement the Equal Employment Provisions of the Americans with
Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with
disabilities. In addition, the Contractor agrees to comply with any implementing
requirements FTA may issue.
(3) The Contractor also agrees to include these requirements in each subcontract
financed in whole or in part with Federal assistance provided by FTA, modified only
if necessary to identify the affected parties.
25. BREACHES AND DISPUTE RESOLUTION
49 CFR Part IS
FTA Circular 4220.1 E
Applicability to Contracts
All contracts in excess of $100,000 shall contain provisions or conditions which
will allow for administrative, contractual, or legal remedies in instances where
contractors violate or breach contract terms, and provide for such sanctions and
penalties as may be appropriate. This may
include provisions for bonding, penalties for late or inadequate performance,
retained earnings, liquidated damages or other appropriate measures.
Flow Down
The Breaches and Dispute Resolutions requirements flow down to all tiers.
Model Clauses/Language
FTA does not prescribe the form or content of such provisions. What provisions
are developed will depend on the circumstances and the type of contract.
Recipients should consult legal counsel in developing appropriate clauses. The
following clauses are examples of provisions from various FTA third party
contracts.
Disputes - Disputes arising in the performance of this Contract which are not
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resolved by agreement of the parties shall be decided in writing by the authorized
representative of (Recipient)'s [title of employee]. This decision shall be final and
conclusive unless within [ten (10►] days from the date of receipt of its copy, the
Contractor mails or otherwise furnishes a written appeal to the [title of employee].
In connection with any such appeal, the Contractor shall be afforded an
opportunity to be heard and to offer evidence in support of its position. The
decision of the [title of employee] shall be binding upon the Contractor and the
Contractor shall abide be the decision.
Performance During Dispute - Unless otherwise directed by (Recipient), Contractor
shall continue performance under this Contract while matters in dispute are being
resolved.
Claims for Damages - Should either party to the Contract suffer injury or damage to
person or property because of any act or omission of the party or of any of his
employees, agents or others for whose acts he is legally liable, a claim for damages
therefor shall be made in writing to such other party within a reasonable time after
the first observance of such injury of damage.
Remedies - Unless this contract provides otherwise, all claims, counterclaims,
disputes and other matters in question between the (Recipient) and the Contractor
arising out of or relating to this agreement or its breach will be decided by
arbitration if the parties mutually agree, or in a court of competent jurisdiction
within the State in which the (Recipient) is located.
Rights and Remedies - The duties and obligations imposed by the Contract
Documents and the rights and remedies available thereunder shall be in addition to
and not a limitation of any duties, obligations, rights and remedies otherwise
imposed or available by law. No action or failure to act by the (Recipient),
(Architect) or Contractor shall constitute a waiver of any right or duty afforded any
of them under the Contract, nor shall any such action or failure to act constitute an
approval of or acquiescence in any breach thereunder, except as may be
specifically agmed in miting.
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26. PATENT AND RIGHTS IN DATA
37 CFR Part 401
49 CFR Parts 18 and 19
Applicability to Contracts
Patent and rights in data requirements for federally assisted projects ONLY apply to
research projects in which FTA finances the purpose of the grant is to finance the
development of a product or information. These patent and data rights
requirements do not apply to capital projects or operating projects, even though a
small portion of the sales price may cover the cost of product development or
writing the user's manual.
Flow Down
The Patent and Rights in Data requirements apply to all contractors and their
contracts at every tier.
Model Clause/Language
The FTA patent clause is substantially similar to the text of 49 C.F.R. Part 19,
Appendix A, Section 5, but the rights in data clause reflects FTA objectives. For
patent rights, FTA is governed by Federal law and regulation. For data rights, the
text on copyrights is insufficient to meet FTA's purposes for awarding research
grants. This model clause, with larger rights as a standard, is proposed with the
understanding that this standard could be modified to FTA's needs.
CONTRACTS INVOLVING EXPERIMENTAL, DEVELOPMENTAL, OR RESEARCH
WORK.
A. Rights in Data - This following requirements apply to each contract involving
experimental, developmental or research work:
(1 ) The term "subject data" used in this clause means recorded information,
whether or not copyrighted, that is delivered or specified to be delivered under the
contract. The term includes graphic or pictorial delineation in media such as
drawings or photographs; text in specifications or related performance or design -
type documents; machine forms such as punched cards, magnetic tape, or
computer memory printouts; and information retained in computer memory.
Examples include, but are not limited to: computer software, engineering drawings
and associated lists, specifications, standards, process sheets, manuals, technical
reports, catalog item identifications, and related information. The term "subject
data" does not include financial reports, cost analyses, and similar information
incidental to contract administration.
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(2) The following restrictions apply to all subject data first produced in the
performance of the contract to which this Attachment has been added:
(a) Except for its own internal use, the Purchaser or Contractor may not publish or
reproduce subject data in whole or in part, or in any manner or form, nor may the
Purchaser or Contractor authorize others to do so, without the written consent of
the Federal Government, until such time as the Federal Government may have
either released or approved the release of such data to the public; this restriction
on publication, however, does not apply to any contract with an academic
institution.
(b) In accordance with 49 C.F.R. § 18.34 and 49 C.F.R. § 19.36, the Federal
Government reserves a royalty -free, non-exclusive and irrevocable license to
reproduce, publish, or otherwise use, and to authorize others to use, for "Federal
Government purposes," any subject data or copyright described in subsections
(2)(b)1 and (2)(b)2 of this clause below. As used in the previous sentence, "for
Federal Government purposes," means use only for the direct purposes of the
Federal Government. Without the copyright owner's consent, the Federal
Government may not extend its Federal license to any other party.
1. Any subject data developed under that contract, whether or not a copyright has
been obtained; and
2. Any rights of copyright purchased by the Purchaser or Contractor using Federal
assistance in whole or in part provided by FTA.
(c) When FTA awards Federal assistance for experimental, developmental, or
research work, it is FTA's general intention to increase transportation knowledge
available to the public, rather than to restrict the benefits resulting from the work
to participants in that work. Therefore, unless FTA determines otherwise, the
Purchaser and the Contractor performing experimental, developmental, or research
work required by the underlying contract to which this Attachment is added agrees
to permit FTA to make available to the public, either FTA's license in the copyright
to any subject data developed in the course of that contract, or a copy of the
subject data first produced under the contract for which a copyright has not been
obtained. If the experimental, developmental, or research work, which is the
subject of the underlying contract, is not completed for any reason whatsoever, all
data developed under that contract shall become subject data as defined in
subsection (a) of this clause and shall be delivered as the Federal Government may
direct. This subsection (c) , however, does not apply to adaptations of automatic
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data processing equipment or programs for the Purchaser or Contractor's use
whose costs are financed in whole or in part with Federal assistance provided by
FTA for transportation capital projects.
(d) Unless prohibited by state law, upon request by the Federal Government, the
Purchaser and the Contractor agree to indemnify, save, and hold harmless the
Federal Government, its officers, agents, and employees acting within the scope of
their official duties against any liability, including costs and expenses, resulting
from any willful or intentional violation by the Purchaser or Contractor of
proprietary rights, copyrights, or right of privacy, arising out of the publication,
translation, reproduction, delivery, use, or disposition of any data furnished under
that contract. Neither the Purchaser nor the Contractor shall be required to
indemnify the Federal Government for any such liability arising out of the wrongful
act of any employee, official, or agents of the Federal Government.
(e) Nothing contained in this clause on rights in data shall imply a license to the
Federal Government under any patent or be construed as affecting the scope of
any license or other right otherwise granted to the Federal Government under any
patent.
(f) Data developed by the Purchaser or Contractor and financed entirely without
using Federal assistance provided by the Federal Government that has been
incorporated into work required by the underlying contract to which this
Attachment has been added is exempt from the requirements of subsections (b),
(c), and (d) of this clause, provided that the Purchaser or Contractor identifies that
data in writing at the time of delivery of the contract work.
(g) Unless FTA determines otherwise, the Contractor agrees to include these
requirements in each subcontract for experimental, developmental, or research
work financed in whole or in part with Federal assistance provided by FTA.
(3) Unless the Federal Government later makes a contrary determination in writing,
irrespective of the Contractor's status (i.e., a large business, small business, state
government or state instrumentality, local government, nonprofit organization,
institution of higher education, individual, etc.), the Purchaser and the Contractor
agree to take the necessary actions to provide, through FTA, those rights in that
invention due the Federal Government as described in
U.S. Department of Commerce regulations, "Rights to Inventions Made by
Nonprofit Organizations and Small Business Firms Under Government Grants,
Contracts and Cooperative Agreements," 37 C.F.R. Part 401.
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(4) The Contractor also agrees to include these requirements in each subcontract
for experimental, developmental, or research work financed in whole or in part with
Federal assistance provided by FTA.
B. Patent Rights - The following requirements apply to each contract involving
experimental, developmental, or research work:
(1) General - If any invention, improvement, or discovery is conceived or first
actually reduced to practice in the course of or under the contract to which this
Attachment has been added, and that invention, improvement, or discovery is
patentable under the laws of the United States of America or any foreign country,
the Purchaser and Contractor agree to take actions necessary to provide immediate
notice and a detailed report to the party at a higher tier until FTA is ultimately
notified.
(2) Unless the Federal Government later makes a contrary determination in writing,
irrespective of the Contractor's status (a large business, small business, state
government or state instrumentality, local government, nonprofit organization,
institution of higher education, individual), the Purchaser and the Contractor agree
to take the necessary actions to provide, through FTA, those rights in that
invention due the Federal Government as described in U.S. Department of
Commerce regulations, "Rights to Inventions Made by Nonprofit Organizations and
Small Business Firms Under Government Grants, Contracts and Cooperative
Agreements," 37 C.F.R. Part 401.
(3) The Contractor also agrees to include the requirements of this clause in each
subcontract for experimental, developmental, or research work financed in whole
or in part with Federal assistance provided by FTA.
27. TRANSIT EMPLOYEE PROTECTIVE AGREEMENTS
49 U.S.C. § 5310, § 5311, and § 5333
29 CFR Part 215
Applicability to Contracts
The Transit Employee Protective Provisions apply to each contract for transit
operations performed by employees of a Contractor recognized by FTA to be a
transit operator. (Because transit operations involve many activities apart from
directly driving or operating transit vehicles, FTA determines which activities
constitute transit "operations" for purposes of this clause.)
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Flow Down
These provisions are applicable to all contracts and subcontracts at every tier.
Model Clause/Language
Since no mandatory language is specified, FTA had developed the following
language:
Transit Employee Protective Provisions. (1) The Contractor agrees to the comply
with applicable transit employee protective requirements as follows:
(a) General Transit Employee Protective Requirements - To the extent that FTA
determines that transit operations are involved, the Contractor agrees to carry out
the transit operations work on the underlying contract in compliance with terms
and conditions determined by the U.S. Secretary of Labor to be fair and equitable
to protect the interests of employees employed under this contract and to meet the
employee protective requirements of 49 U.S.C. A 5333(b), and U.S. DOL
guidelines at 29 C.F.R. Part 215, and any amendments thereto. These terms and
conditions are identified in the letter of certification from the U.S. DOL to FTA
applicable to the FTA Recipient's project from which Federal assistance is provided
to support work on the underlying contract. The Contractor agrees to carry out
that work in compliance with the conditions stated in that U.S. DOL letter. The
requirements of this subsection (1), however, do not apply to any contract
financed with Federal assistance provided by FTA either for projects for elderly
individuals and individuals with disabilities authorized by 49 U.S.C. § 5310(a)(2), or
for projects for nonurbanized areas authorized by 49 U.S.C. § 5311. Alternate
provisions for those projects are set forth in subsections (b) and (c) of this clause.
(b) Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C.
§ 5310(a)(2) for Elderly Individuals and Individuals with Disabilities - If the contract
involves transit operations financed in whole or in part with Federal assistance
authorized by 49 U.S.C. § 5310(a)(2), and if the U.S. Secretary of Transportation
has determined or determines in the future that the employee protective
requirements of 49 U.S.C. § 5333(b) are necessary or appropriate for the state and
the public body subrecipient for which work is performed on the underlying
contract, the Contractor agrees to carry out the Project in compliance with the
terms and conditions determined by the U.S. Secretary of Labor to meet the
requirements of 49 U.S.C. § 5333(b), U.S. DOL guidelines at 29 C.F.R. Part 215,
and any amendments thereto. These terms and conditions are identified in the
U.S. DOL's letter of certification to FTA, the date of which is set forth Grant
Agreement or Cooperative Agreement with the state. The Contractor agrees to
perform transit operations in connection with the underlying contract in compliance
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with the conditions stated in that U.S. DOL letter.
(c) Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C.
§ 5311 in Nonurbanized Areas - If the contract involves transit operations financed
in whole or in part with Federal assistance authorized by 49 U.S.C. § 5311, the
Contractor agrees to comply with the terms and conditions of the Special Warranty
for the Nonurbanized Area Program agreed to by the U.S. Secretaries of
Transportation and Labor, dated May 31, 1979, and the procedures implemented
by U.S. DOL or any revision thereto.
(2) The Contractor also agrees to include the any applicable requirements in each
subcontract involving transit operations financed in whole or in part with Federal
assistance provided by FTA.
28. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
49 CFR Part 26
Background and Applicability
The newest version on the Department of Transportation's Disadvantaged Business
Enterprise (DBE) program became effective July 16, 2003. The rule provides
guidance to grantees on the use of overall and contract goals, requirement to
include DBE provisions in subcontracts, evaluating DBE participation where specific
contract goals have been set, reporting requirements, and replacement of DBE
subcontractors. Additionally, the DBE program dictates payment terms and
conditions (including limitations on retainage) applicable to all subcontractors
regardless of whether they are DBE firms or not.
The DBE program applies to all DOT -assisted contracting activities. A formal
clause such as that below must be included in all contracts above the micro -
purchase level. The requirements of clause subsection b flow down to
subcontracts.
A substantial change to the payment provisions in this newest version of Part 26
concerns retainage (see section 26.29). Grantee choices concerning retainage
should be reflected in the language choices in clause subsection d.
Clause Language
The following clause language is suggested, not mandatory. It incorporates the
payment terms and conditions applicable to all subcontractors based in Part 26 as
well as those related only to DBE subcontractors. The suggested language allows
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for the options available to grantees concerning retainage, specific contract goals,
and evaluation of DBE subcontracting participation when specific contract goals
have been established.
Disadvantaged Business Enterprises
a. This contract is subject to the requirements of Title 49, Code of Federal
Regulations, Part 26, Participation by Disadvantaged Business Enterprises in
Department of Transportation Financial Assistance Programs. The national goal for
participation of Disadvantaged Business Enterprises (DBE) is 10%. The agency's
overall goal for DBE participation is _ %. A separate contract goal [of _ % DBE
participation has] [has not] been established for this procurement.
b. The contractor 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 this
DOT -assisted contract. 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 (insert agency name) deems appropriate. Each
subcontract the contractor signs with a subcontractor must include the assurance
in this paragraph (see 49 CFR 26.13(b)).
c. (lf a separate contract goal has been established, use the following)
Bidders/offerors are required to document sufficient DBE participation to meet
these goals or, alternatively, document adequate good faith efforts to do so, as
provided for in 49 CFR 26.53. Award of this contract is conditioned on submission
of the following [concurrent with and accompanying sealed bid] [concurrent with
and accompanying an initial proposal] [prior to award]:
The names and addresses of DBE firms that will participate in this contract;
2. A description of the work each DBE will perform;
3. The dollar amount of the participation of each DBE firm participating;
4. Written documentation of the bidder/offeror's commitment to use a DBE
subcontractor whose participation it submits to meet the contract goal;
5. Written confirmation from the DBE that it is participating in the contract as
provided in the prime contractor's commitment; and
6. If the contract goal is not met, evidence of good faith efforts to do so.
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[Bidders][Offerors] must present the information required above [as a matter of
responsiveness] [with initial proposals] [prior to contract award] (see 49 CFR
26.53(3)).
(lf no separate contract goal has been established, use the following] The
successful bidder/offeror will be required to report its DBE participation obtained
through race -neutral means throughout the period of performance.
d. The contractor is required to pay its subcontractors performing work related to
this contract for satisfactory performance of that work no later than 30 days after
the contractor's receipt of payment for that work from the (insert agency name).
In addition, [the contractor may not hold retainage from its subcontractors.] [is
required to return any retainage payments to those subcontractors within 30 days
after the subcontractor's work related to this contract is satisfactorily completed.]
[is required to return any retainage payments to those subcontractors within 30
days after incremental acceptance of the subcontractor's work by the (insert
agency name) and contractor's receipt of the partial retainage payment related to
the subcontractor's work.]
e. The contractor must promptly notify (insert agency name), whenever a DBE
subcontractor performing work related to this contract is terminated or fails to
complete its work, and must make good faith efforts to engage another DBE
subcontractor to perform at least the same amount of work. The contractor may
not terminate any DBE subcontractor and perform that work through its own forces
or those of an affiliate without prior written consent of (insert agency name).
59
THE CITY OF FORT COLLINS, COLORADO
By: !
am s B. O'Neill II, CPPO, FNIGP
DirectorbWurchasing & Risk Management
DATE: /b i3 / D"
TE PRESIDENT OR VICE PRESIDENT
Date: (1,60G
ATTEST:
�a✓y (Corporate Sea[)
Seeretary
Best Practices Procurement Manual - Exhibit C Pane
29. [ RESERVED I
30 INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS
FTA Circular 4220.1 E
Applicability to Contracts
The incorporation of FTA terms applies to all contracts.
Flow Down
The incorporation of FTA terms has unlimited flow down.
Model Clause/Language
FTA has developed the following incorporation of terms language:
Incorporation of Federal Transit Administration (FTA) Terms - The preceding
provisions include, in part, certain Standard Terms and Conditions required by DOT,
whether or not expressly set forth in the preceding contract provisions. All
contractual provisions required by DOT, as set forth in FTA Circular 4220.1 E, are
hereby incorporated by reference. Anything to the contrary herein
notwithstanding, all FTA mandated terms shall be deemed to control in the event
of a conflict with other provisions contained in this Agreement. The Contractor
shall not perform any act, fail to perform any act, or refuse to comply with any
(name of grantee) requests which would cause (name of grantee) to be in violation
of the FTA terms and conditions.
31. DRUG AND ALCOHOL TESTING
49 U.S.C. §5331
49 CFR Parts 653 and 654
Applicability to Contracts
The Drug and Alcohol testing provisions apply to Operational Service Contracts.
Flow Down Requirements
Anyone who performs a safety -sensitive function for the recipient or subrecipient is
required to comply with 49 CFR 653 and 654, with certain exceptions for
contracts involving maintenance services. Maintenance contractors for non -
urbanized area formula program grantees are not subject to the rules. Also, the
rules do not apply to maintenance subcontractors.
:m
Best Practices Procurement Manual — Exhibit C Pane
Model Clause/Language
Introduction
FTA's drug and alcohol rules, 49 CFR 653 and 654, respectively, are unique among
the regulations issued by FTA. First, they require recipients to ensure that any
entity performing a safety -sensitive function on the recipient's behalf (usually
subrecipients and/or contractors) implement a complex drug and alcohol testing
program that complies with Parts 653 and 654. Second, the rules condition the
receipt of certain kinds of FTA funding on the recipient's compliance with the rules;
thus, the recipient is not in compliance with the rules unless every entity that
performs a safety -sensitive function on the recipient's behalf is in compliance with
the rules. Third, the rules do not specify how a recipient ensures that its
subrecipients and/or contractors comply with them.
How a recipient does so depends on several factors, including whether the
contractor is covered independently by the drug and alcohol rules of another
Department of Transportation operating administration, the nature of the
relationship that the recipient has with the contractor, and the financial resources
available to the recipient to oversee the contractor's drug and alcohol testing
program. In short, there are a variety of ways a recipient can ensure that its
subrecipients and contractors comply with the rules.
Therefore, FTA has developed three model contract provisions for recipients to use
"as is" or to modify to fit their particular situations.
Explanation of Model Contract Clauses
Under Option 1, the recipient ensures the contractor's compliance with the rules by
requiring the contractor to participate in a drug and alcohol program administered
by the recipient. The advantages of doing this are obvious: the recipient maintains
total control over its compliance with 49 CFR 653 and 654. The disadvantage is
that the recipient, which may not directly employ any safety -sensitive employees,
has to implement a complex testing program. Therefore, this may be a practical
option only for those recipients which have a testing program for their employees,
and can add the contractor's safety -sensitive employees to that program.
Under Option 2, the recipient relies on the contractor to implement a drug and
alcohol testing program that complies with 49 CFR 653 and 654, but retains the
ability to monitor the contractor's testing program; thus, the recipient has less
control over its compliance with the drug and alcohol testing rules than it does
under option 1. The advantage of this approach is that it places the responsibility
for complying with the rules on the entity that is actually performing the safety-
61
Best Practices Procurement Manual - Exhibit C Pane
sensitive function. Moreover, it reserves to the recipient the power to ensure that
the contractor complies with the program. The disadvantage of Option 2 is that
without adequate monitoring of the contractor's program, the recipient may find
itself out of compliance with the rules.
Under option 3, the recipient specifies some or all of the specific features of a
contractor's drug and alcohol compliance program. Thus, it requires the recipient
to decide what it wants to do and how it wants to do it. The advantage of this
option is that the recipient has more control over the contractor's drug and alcohol
testing program, yet it is not actually administering the testing program. The
disadvantage is that the recipient has to specify and understand clearly what it
wants to do and why.
Drug and Alcohol Testing
Option 1
The contractor agrees to:
(a) participate in (grantee's or recipient's) drug and alcohol program established in
compliance with 49 CFR 653 and 654.
Drug and Alcohol Testing
Option 2
The contractor agrees to establish and implement a drug and alcohol testing
program that complies with 49 CFR Parts 653 and 654, produce any
documentation necessary to establish its compliance with Parts 653 and 654, and
permit any authorized representative of the United States Department of
Transportation or its operating administrations, the State Oversight Agency of
(name of State), or the (insert name of grantee), to inspect the facilities and
records associated with the implementation of the drug and alcohol testing program
as required under 49 CFR Parts 653 and 654 and review the testing process. The
contractor agrees further to certify annually its compliance with Parts 653 and 654
before (insert date) and to submit the Management Information System (MIS)
reports before (insert date before March 15) to (insert title and address of person
responsible for receiving information). To certify compliance the contractor shall
use the "Substance Abuse Certifications" in the "Annual List of Certifications and
Assurances for Federal Transit Administration Grants and Cooperative
Agreements," which is published annually in the Federal Register.
Drug and Alcohol Testing
Option 3
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Best Practices Procurement Manual - Exhibit C Pane
The contractor agrees to establish and implement a drug and alcohol testing
program that complies with 49 CFR Parts 653 and 654, produce any
documentation necessary to establish its compliance with Parts 653 and 654, and
permit any authorized representative of the United States Department of
Transportation or its operating administrations, the State Oversight Agency of
(name of State), or the (insert name of grantee), to inspect the facilities and
records associated with the implementation of the drug and alcohol testing program
as required under 49 CFR Parts 653 and 654 and review the testing process. The
contractor agrees further to certify annually its compliance with Parts 653 and 654
before (insert date) and to submit the Management Information System (MIS)
reports before (insert date before March 15) to (insert title and address of person
responsible for receiving information). To certify compliance the contractor shall
use the "Substance Abuse Certifications" in the "Annual List of Certifications and
Assurances for Federal Transit Administration Grants and Cooperative
Agreements," which is published annually in the Federal Register. The Contractor
agrees further to [Select a, b, or c] (a) submit before (insert date or upon request) a
copy of the Policy Statement developed to implement its drug and alcohol testing
program; OR (b) adopt (insert title of the Policy Statement the recipient wishes the
contractor to use) as its policy statement as required under 49 CFR 653 and 654;
OR (c) submit for review and approval before (insert date or upon request) a copy
of its Policy Statement developed to implement its drug and alcohol testing
program. In addition, the contractor agrees to: (to be determined by the recipient,
but may address areas such as: the selection of the certified laboratory, substance
abuse professional, or Medical Review Officer, or the use of a consortium).
63
No Text
Exhibit A
Scope of Work
The following is an outline of a general scope of work. The consultant firm/team should
expand on each of the tasks listed below. Additional tasks that the consultant firm/team
determines necessary to assure a good product should be added to this list.
1) Data Collection required to complete scope:
a) High -resolution aerial orthophotography of the Mason Transportation Corridor and
surrounding area (City will provide).
b) Photography/video footage of the corridor.
c) Curb, land and traffic control configuration in CAD format.
d) Existing/planned land use, building footprints and topography in CAD format.
e) Corridor diagram with station locations and general alignment (City will provide).
f) Station configuration sketch.
2) Develop and maintain a project schedule that includes Drafts/Reviews/Milestones
3) Project deliverables
a) Final deliverable will be 10 copies of a 6-10 minute DVD that include, but are not
limited to:
(1) DVD Video: titles, editing narration and background music where
appropriate.
(2) Map Animation: A DVD-quality 3D animation of the alignment illustrating the
BRT route and feeder routes; and station locations using aerial photography.
(3) Corridor Animation. A DVD-quality 3D animation of the corridor alignment.
The animation should include 3D modeling of all the future adjacent
'�'fiC)D's, and TAD), streets, sidewalks, vegetation,
tlg�#ode , biicycles, cars, and BRT infrastructure
(Mario ems)°and s.;
E 4) 7f►e'�n ,` u sere how the transformation of the corridor with focus
if Development (TOD) redevelopment potential for new
residential, commercial and retail centers, and to illustrate the active street
front.
(5) Photosimulations: "Before and After" photosimulations at various locations
with BRT and infrastructure inserted from matched 3D renderings.
(6) Briefly incorporate or describe how all transportation modes will use the
corridor in order to give the citizens a better understanding of how the BRT
service will operate along side autos, bikes, pedestrians, buses and freight
rail. The video should inspire developers and excite the community on what
this corridor can become.
(7) Windows Media format files of each clip produced.
(8) Image files (high and medium resolution; .jpeg/.tiff/.eps) of still renderings
and photo simulations
(9) The video animation will be broadcast -quality and provided in .AVI, and DVD
formats.
4) Provide information on your firm/team capability and availability. Include firm profile and
project team.
5) Demonstrate prior experience with similar transportation 3D video/photo simulation
projects. Include current project references, photo and/or video examples and detailed
project description.
8
Scope of Services
Newlands do Coutpany, Inc. (0C3D) will produce a 6-10 minute narrated video
dosanbing the Mason Street Multi -Modal Corridor with the following elements:
• D=gratnmakic 3D map animations (3 minutes)
• Photoreabstic 3D fly/walk-through animations (1 minute)
• Photosimulations (3 locations, about 30 seconds)
• Live video (3-4 minutes)
Donald Newland: and Jeremy Mop will travel to Ft. Collins to most with the client
team to develop a storyboard. Newland* will also tout and photograph the corridor
and tape 2 intervisws (using local television facilities).
Deliverables
The project video and each animation clip will be delivered in the following formats:
I. Looping DVD (12 copies)
2. WMV or AVl video (for computer pkyback)
3. Flash video (for Web playback
4. TIFF and JPEG image files of AM renderings
Daft heeds
The City of Ft. Collins will provide:
• Conceptual corridor design sketches as necessary.
GE and CAD data including building footprints. color orthophotography and
terrain data
• A written script is outline farm for the storyboard meeting; in rough draft for
the storyboard approval and in final form for the find edit.
Schodu1iis and Milestones
• Storyboard Meeting, Kickoff and Fieldwork. (Week of October 2nd, (2006)
• Storyboard Approval. Review the basic sequence of shots and rough script.
(Week of October 9, 2006)
• Rough Draft Approval. Review a rough assembly of the shots and audio track.
(Week of November 27, 2006)
• Final Draft Approval. Review final shots and audio track. (Week of December 4, 2006)
• Final Delivery. (Week of December 11, 2006)
0