HomeMy WebLinkAboutRFP - P970 TRANSPORTATION PLANNING & ENGINEERING SERVICESAdministrative Services
Purchasing Divison
215 North Mason Street y 2nd Floor y P.O. Box 580 y Fort Collins, CO 80522-0580 y (970) 221-6775 y Fax
(970) 221-6707
www.fcgov.com
REQUEST FOR PROPOSAL
P970
Transportation Planning & Engineering Type Services
The City of Fort Collins on behalf of the North Front Range Metropolitan Planning Organization
(NFRMPO) is accepting written proposals from qualified firms. Written proposals, six (6) will
be received at the City of Fort Collins' Purchasing Division, 215 North Mason St., 2nd floor,
Fort Collins, Colorado 80524. Proposals will be received before 3:00 p.m. (our clock),
December 14, 2004. Proposal No. P970. If delivered, they are to be sent to 215 North Mason
Street, 2nd Floor, Fort Collins, Colorado 80524. If mailed, the address is P.O. Box 580, Fort
Collins, 80522-0580.
Questions concerning the scope of the project should be directed to Suzette Thieman, (970)
416-2257.
Questions regarding proposals submittal or process should be directed to David M. Carey,
Buyer, C.P.M. (970) 416-2191.
A copy of the Proposal may be obtained as follows:
1. Call the Purchasing Fax-line, 970-416-2033 and follow the verbal instruction to
request document #30970.
2. Download the Proposal/Bid from the BuySpeed Webpage,
www.fcgov.com/purchasing
3. Come by Purchasing at 215 North Mason St., 2nd floor, Fort Collins, and request
a copy of the Bid.
Sales Prohibited/Conflict of Interest: No officer, employee, or member of City Council, shall
have a financial interest in the sale to the City of any real or personal property, equipment,
material, supplies or services where such officer or employee exercises directly or indirectly
any decision-making authority concerning such sale or any supervisory authority over the
services to be rendered. This rule also applies to subcontracts with the City. Soliciting or
accepting any gift, gratuity favor, entertainment, kickback or any items of monetary value from
any person who has or is seeking to do business with the City of Fort Collins is prohibited.
Collusive or sham proposals: Any proposal deemed to be collusive or a sham proposal will be
rejected and reported to authorities as such. Your authorized signature of this proposal
assures that such proposal is genuine and is not a collusive or sham proposal.
The City of Fort Collins reserves the right to reject any and all proposals and to waive any
irregularities or informalities.
Sincerely,
James B. O'Neill II, CPPO, FNIGP
Director of Purchasing & Risk Management
Request for Proposal
P970
Transportation Planning & Engineering Type Services
Introduction:
The North Front Range Metropolitan Planning Organization (NFR MPO) is an organization of
thirteen local governments that is responsible for long range transportation planning in the North
Front Range. Members of the MPO are Fort Collins, Greeley, Loveland, Timnath, Berthoud,
Windsor, Johnstown, Milliken, Evans, Garden City, LaSalle, and Weld and Larimer Counties.
The Colorado Department of Transportation (CDOT) and the State Air Quality Control
Commission (AQCC) are also members. The NFR MPO works on a regional scale that covers
approximately 1600 square miles, and is responsible for regional transportation planning.
General Information:
This Request for Proposal is to select a firm and to enter into a Work Order Type Agreement
with the NFR MPO to perform planning/engineering type tasks and related work. The timing
and schedule of these services will be based upon the NFR MPO needs.
Services intended to be included in one or more Work Order(s). The types of work ordered may
include, but are not necessarily limited to:
• Corridor studies
• Regional transportation plan
• Concept and design studies
Evaluation & Award: It is the intent of the NFR MPO to select a Professional consulting firm and
to enter into a Professional Services Work Order Type Agreement (sample attached) to provide
the services described herein. A NFR MPO review team will rank the proposals based on the
NFR MPOs’ procedures for the review of professional firms.
The highest-ranked Professionals will then be invited to make formal oral presentations to the
review team. Based on these interviews, a professional consulting firm will be retained to
provide these services, as the need for work is generated.
The Professional Services Agreement will be in full force and effect for one year. At the option of
the NFR MPO, the Professional Services Agreement may be extended for up to four (4)
additional one-year terms.
Increases in the Fee Schedule may be negotiated for subsequent renewal of the third, fourth,
and fifth additional one-year periods. Price changes in the Fee Schedule will be negotiated by
and agreed to by both parties.
Work Order Procedures: Work performed pursuant to the Professional Services Agreement will
be authorized by Work Order (sample attached). No Work Order shall exceed $100,000. The
NFR MPO reserves the right to seek independent or separate proposals on any project, rather
than issuing a Work Order to the Professional. The only work authorized under the Professional
Services Agreement is that which is performed after receipt of such Work Orders. The NFR
MPO makes no guarantee as to the number of work orders or actual amount of services which
will in fact be requested.
Background:
The NFR MPO is responsible for long range transportation planning activities throughout
Northern Colorado. The planning activities for which this Work Order Type Agreement is being
issued are those not currently available at the MPO due to lack of expertise or limited resources.
The time involved to negotiate contracts and requests for proposal individually is so extensive
that the MPO is seeking to hire a firm on a Work Order contract. Services such as those
identified below will be requested on an as needed basis.
Potential Service Categories:
Responders should be capable of providing some or all of the services listed below. When
appropriate, firms and/or individuals are encouraged to form teams to afford the highest level of
expertise and capabilities. The firm with which the contract is signed will be the ‘prime’ and will
be responsible for performance and work identified in a given task order.
The categories of services are listed below. The magnitude and effort required for specific work
tasks may vary from work order to work order.
Major Service Categories:
Transportation and Land Use Planning
Development of Regional Transportation Plans
Development of Transportation Improvement Programs
Land use/transportation/air quality relationships
Travel demand forecasting
Demographic projections and analysis
Multi modal assessments
Project cost estimation
Project prioritization methods and techniques
Corridor planning
o Corridor optimization plans
o Access control
o Demand forecasting
o Cost estimates
Freight and commodity movement planning and analysis
Multi modal applications and planning studies
o Transit, bicycle and pedestrian
Financial Analysis
Revenue, expense, and proforma forecasts
Cost/benefit analysis
Feasibility studies
Innovative financing techniques
Data Collection and Analysis
GPS inventories
Roadway geometrics
Traffic counts
Travel times
Turning movements
Vehicle classification
Vehicle weight
Vehicle occupancy
Data analysis
On Board transit surveys
Behavioral surveys
Market surveys
Attitudinal surveys
Household travel surveys
Process Facilitation
Develop and implement process and methodologies for various planning related
applications
Facilitate public involvement processes in relation to planning work
Coordinate and facilitate planning related activities with stakeholders
Transportation/Travel Demand/Land Use/Air Quality Modeling
Application and analysis of travel demand models and their application
Environmental Planning
Environmental data analysis/modeling
Technical and policy support
Compliance with various federal regulatory Acts
Work Task Deliverables:
The type of work task deliverables anticipated are:
Planning documents
Feasibility reports
Technical reports and “white” papers
Management reports
Presentation materials
Electronic information such as databases, spreadsheets, maps and drawings
Expertise:
Relevant work experience and expertise in major service categories identified in this scope of
work. Familiarity with State and MPO planning process in Colorado. Experience working with
multiple stakeholders.
Submissions:
Six (6) copies of the written proposal should be submitted and include the qualifications of the
firm and the individuals that would be assigned to this project. This submission will cover both
the work order and the regional data repository.
Travel:
The NFR MPO office is located in Fort Collins, Colorado and travel expenses should be
included in work order proposals. There is a limited budget for projects, so travel expenses
should be considered carefully.
REVIEW AND ASSESSMENT
Professional firms will be evaluated on the following criteria. These criteria will be the basis for
review of the written proposals and interview session.
The rating scale shall be from 1 to 5, with 1 being a poor rating, 3 being an average rating, and
5 being an outstanding rating.
WEIGHTING
FACTOR
QUALIFICATION
STANDARD
2.0
Scope of Proposal
Does the proposal show an understanding of the
project objective, methodology to be used and
results that are desired from the project?
2.0
Assigned Personnel
Do the persons who will be working on the project
have the necessary skills? Are sufficient people of
the requisite skills assigned to the project?
1.0
Availability
Can the work be completed in the necessary time?
Can the target start and completion dates be met?
Are other qualified personnel available to assist in
meeting the project schedule if required? Is the
project team available to attend meetings as
required by the Scope of Work?
1.0
Motivation
Is the firm interested and are they capable of doing
the work in the required time frame?
2.0
Cost and
Work Hours
Do the proposed cost and work hours compare
favorably with the project Manager's estimate? Are
the work hours presented reasonable for the effort
required in each project task or phase?
2.0
Firm Capability
Does the firm have the support capabilities the
assigned personnel require? Has the firm done
previous projects of this type and scope?
Reference evaluation (Top Ranked Firm)
The project Manager will check references using the following criteria. The evaluation rankings
will be labeled Satisfactory/Unsatisfactory.
QUALIFICATION
STANDARD
Overall Performance
Would you hire this Professional again? Did
they show the skills required by this project?
Timetable
Was the original Scope of Work completed
within the specified time? Were interim
deadlines met in a timely manner?
Completeness
Was the Professional responsive to client
needs; did the Professional anticipate
problems? Were problems solved quickly and
effectively?
Budget
Was the original Scope of Work completed
within the project budget?
Job Knowledge
a) If a study, did it meet the Scope of Work?
b) If Professional administered a construction
contract, was the project functional upon
completion and did it operate properly?
Were problems corrected quickly and
effectively?
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into the day and year set forth below, by and
between THE NORTH FRONT RANGE TRANSPORTATION AND AIR QUALITY PLANNING
COUNCIL (MPO) hereinafter referred to as the "MPO" and NAME OF COMPANY , a
corporation, 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:
1. The Work Schedule. The services to be performed pursuant to this Agreement
shall be performed in accordance with the Work Schedule stated on each Work Order.
2. Time of Commencement and Completion of Services. The services to be
performed pursuant to this Agreement shall be initiated as specified on each Work Order. Time
is of the essence. Any extensions of any time limit must be agreed upon in writing by the
parties hereto.
3. Contract Period. This Agreement shall commence _____________, and shall
continue in full force and effect until _______________, unless sooner terminated as herein
provided. In addition, at the option of the MPO, the Agreement may be extended for additional
one year periods not to exceed ____ (_) additional one year periods. Renewals and pricing
changes shall be negotiated by and agreed to by both parties. The Denver Boulder Greeley
CPIU published by the Colorado State Planning and Budget Office will be used as a guide.
Written notice of renewal shall be provided to the Service Provider and mailed no later than
ninety (90) days prior to contract end.
4. Early Termination by MPO. Notwithstanding the time periods contained herein,
the MPO 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:
________________________
________________________
________________________
____________________
North Front Range MPO
Attn: _____________
235 Mathews St.
Fort Collins, CO 80524
With Copy to:
City of Fort Collins
Purchasing
PO Box 580
Ft Collins, CO 80522
In the event of any such early termination by the MPO, 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 right and remedy for such termination.
5. Design, Project 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 MPO, its officers and employees in accordance
with Colorado law, from all damages whatsoever claimed by third parties against the MPO; and
for the MPO's costs and reasonable attorneys fees, arising directly or indirectly out of the
Professional's negligent performance of any of the services furnished under this Agreement.
The Professional shall maintain commercial general liability insurance in the amount of
$500,000 combined single limits, and errors and omissions insurance in the amount of
________________.
6. Compensation In consideration of the services to be performed pursuant
to this Agreement, the MPO agrees to pay Professional on a time and reimbursable direct cost
basis according to the following schedule:
Hourly billing rates: $ ________ per hour
At the election of the MPO, each Work Order may contain a maximum fee, which shall be
negotiated by the parties hereto for each such Work Order. 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 MPO-verified progress in
completing the services to be performed pursuant to the Work Order and upon approval of the
Professional's direct reimbursable expenses. Final payment shall be made following
acceptance of the work by the MPO. Upon final payment, all designs, plans, reports,
specifications, drawings, and other services rendered by the Professional shall become the sole
property of the MPO.
7. MPO Representative. The MPO 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 MPO
Representative.
8. Project Drawings. Upon conclusion of the project and before final payment, the
Professional shall provide the MPO with reproducible drawings of the project containing
accurate information on the project as constructed. Drawings shall be of archival quality,
prepared on stable mylar base material using a non-fading process to prove for long storage
and high quality reproduction.
9. 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 MPO
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 MPO, suspend the processing of any partial payment
request.
10. Independent Contractor. The services to be performed by Professional are those
of an independent contractor and not of an employee of the MPO of Fort Collins. The MPO
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.
11. Personal Services. It is understood that the MPO 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
consent of the MPO.
12. Acceptance Not Waiver. The MPO's approval of drawings, designs, plans,
specifications, reports, and incidental work or materials furnished hereunder shall not in any way
relieve the Professional of responsibility for the quality or technical accuracy of the work. The
MPO'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 MPO under this Agreement.
13. 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.
14. 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.
15. 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.
16. 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. Special Provisions. Special provisions or conditions relating to the services to
be performed pursuant to this Agreement are set forth in Exhibit "B", _____________________,
attached hereto and incorporated herein by this reference.
CITY OF FORT COLLINS, COLORADO
By: _________________________________
James B. O'Neill II, CPPO
Director of Purchasing & Risk Management
DATE: ______________________________
THE NORTH FRONT RANGE TRANSPORTATION
AND AIR QUALITY PLANNING COUNCIL (MPO)
By: _________________________________
Executive Director
_____________________________________.
By: __________________________________
Title: _______________________________
CORPORATE PRESIDENT OR VICE PRESIDENT
Date: _______________________________
ATTEST:
_________________________________ (Corporate Seal)
Corporate Secretary
EXHIBIT "A"
WORK ORDER FORM
PURSUANT TO AN AGREEMENT BETWEEN
THE NORTH FRONT RANGE TRANSPORTATION AND AIR QUALITY PLANNING COUNCIL
AND
______________________________________________
DATED: _____________
Work Order Number: __________________________________________________________________
Purchase Order Number: ______________________________________________________________
Project Title: ____________________________________________________________________
Commencement Date: _______________________________________________________________
Completion Date: _____________________________________________________________________
Maximum Fee: (time and reimbursable direct costs):_________________________________________
Project Description: ___________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
Scope of Services: ____________________________________________________________________
____________________________________________________________________________________
Acceptance _______________________________________
User
Professional agrees to perform the services
identified above and on the attached forms in
accordance with the terms and conditions
contained herein and in the Professional
Services Agreement between the parties. In the
event of a conflict between or ambiguity in the
terms of the Professional Services Agreement
and this work order (including the attached
forms) the Professional Services Agreement
shall control.
Professional
By:_________________________________
Date:_______________________________
The attached forms consisting of ___ (_) pages
are hereby accepted and incorporated herein, by
this reference, and Notice to Proceed is hereby
given.
THE NORTH FRONT RANGE
TRANSPORTATION AND AIR QUALITY
PLANNING COUNCIL
By:____________________________________
Date:__________________________________
By:
_____________________________________
Director of Purchasing and Risk Management
(over $30,000.00)
Date: __________________________________
11/8/04
1
EXHIBIT "__" - FEDERAL REQUIREMENTS
TABLE OF CONTENTS
LOBBYING ...................................................................................................................................2
ACCESS TO RECORDS AND REPORTS ...................................................................................2
FEDERAL CHANGES...................................................................................................................3
CONTRACT WORK HOURS AND SAFETY STANDARDS ACT.................................................3
NO GOVERNMENT OBLIGATION TO THIRD PARTIES ............................................................7
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS ........................................8
AND RELATED ACTS ..................................................................................................................8
TERMINATION .............................................................................................................................8
GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) ................11
PRIVACY ACT............................................................................................................................12
CIVIL RIGHTS REQUIREMENTS ..............................................................................................13
PATENT AND RIGHTS IN DATA ...............................................................................................14
DISADVANTAGED BUSINESS ENTERPRISE (DBE) ...............................................................17
INTERESTS OF MEMBERS OF OR DELEGATES TO CONGRESS ........................................19
INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS ......................19
11/8/04
2
LOBBYING
31 U.S.C. 135249 CFR Part 1949 CFR Part 20
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, et 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.
ACCESS TO RECORDS AND REPORTS
49 U.S.C. 5325 18 CFR 18.36 49 CFR.633.17Access 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 Unites 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 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 Unites 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.
3. 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.
4. 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.
5. 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
11/8/04
3
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)(11).
FEDERAL CHANGES
49 CFR Part 18
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 Agreement (Form FTA MA (2) dated October, 1995) 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.
CONTRACT WORK HOURS AND SAFETY STANDARDS ACT 40 U.S.C.? 827 -333 (1995)
29 C.F.R. 5 (1995)
29 C.F.R. 1926 (1995)
Pursuant to Section 102 (Overtime):
(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 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 MPO 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 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 this section.
11/8/04
4
(5) 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
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.
Section 107 (OSHA):
Contract Work Hours and Safety Standards Act
(i) The Contractor agrees to comply with section 107 of the Contract t Work Hours and Safety
Standards Act, 40 U.S.C. section 333, and applicable DOL regulations, " Safety and Health
Regulations for Construction " 29 C.F.R. Part 1926. Among other things, the Contractor agrees
that it will not require any laborer or mechanic to work in unsanitary, hazardous, or dangerous
surroundings or working conditions.
(ii) Subcontracts - The Contractor also agrees to include the requirements of this section in each
subcontract. The term "subcontract" under this section is considered to refer to a person who
agrees to perform any part of the labor or material requirements of a contract for construction,
alteration or repair. A person who undertakes to perform a portion of a contract involving the
furnishing of supplies or materials will be considered a "subcontractor" under this section if the
work in question involves the performance of construction work and is to be performed: (1) directly
on or near the construction site, or (2) by the employer for the specific project on a customized
basis. Thus, a supplier of materials which will become an integral part of the construction is a
"subcontractor' if the supplier fabricates or assembles the goods or materials in question
specifically for the construction project and the work involved may be said to be construction
activity. If the goods or materials in question are ordinarily sold to other customers from regular
inventory, the supplier is not a "subcontractor." The requirements of this section do not apply to
contracts or subcontracts for the purchase of supplies or materials or articles normally available on
the open market.
If it is later determined by the MPO 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 MPO, 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.
11/8/04
5
c. Opportunity to Cure (General Provision) The MPO 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.
If Contractor fails to remedy to the MPO' satisfaction the breach or default or any of the terms,
covenants, or conditions of this Contract within [ten (1 0) days] after receipt by Contractor or
written notice from the MPO setting forth the nature of said breach or default, the MPO 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 the MPO from also pursuing all available
remedies against Contractor and its sureties for said breach or default.
Waiver of Remedies for any Breach In the event that the MPO elects to waive its remedies for
any breach by Contractor of any covenant, term or condition of this Contract, such waiver by the
MPO shall not limit the MPO' remedies for any succeeding breach of that or of any other term,
covenant, or condition of this Contract.
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 MPO may terminate this contract for
default. The MPO 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.
f. 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 MPO may terminate this contract for default. The MPO 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 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 MPO, protect and preserve the goods until surrendered to
the Recipient or its agent. The Contractor and the MPO 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 MPO.
g. 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 MPO may terminate this
11/8/04
6
contract for default. The MPO 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 changed 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 [1 0] days from the beginning of any delay, notifies the MPO in writing of
the causes of delay. If in the judgment of the MPO, the delay is excusable, the time for completing
the work shall be extended. The judgment of the MPO shall be final and conclusive on the parties,
but subject 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.
h. Termination for Convenience or Default (Architect and Engineering) The MPO 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 MPO 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
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.
Termination for Convenience of Default (Cost-Type Contracts) The MPO 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 MPO or for the default of the Contractor. If
11/8/04
7
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 MPO, or property supplied to the Contractor by
the MPO. If the termination is for default, the MPO 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 performed up to the time of
termination. The Contractor shall promptly submit its termination claim to the MPO and the parties
shall negotiate the termination settlement to be paid the Contractor.
If the termination is for the convenience of the MPO, 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 MPO 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 MPO, after setting up a new work schedule, may
allow the Contractor to continue work, or treat the termination as a termination for convenience.
NO GOVERNMENT OBLIGATION TO THIRD PARTIES 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.
11/8/04
8
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS
AND RELATED ACTS
31 U.S.C. 3801 et seq.
49 CFR Part 31 18 U.S.C. 1001
49 U.S.C. 5307
Program Fraud and False or Fraudulent Statements or Related Acts.
(1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act
of 1986, as amended, 31 U.S.C. 3801 et 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.
TERMINATION
49 U.S.C.Part 18
FTA Circular 4220.1 D
a. Termination for Convenience (General Provision) The MPO 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 the MPO to be paid the Contractor. If the Contractor has any property in its
possession belonging to the MPO, the Contractor will account for the same, and dispose of it in the
manner the MPO 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 MPO 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.
11/8/04
9
If it is later determined by the MPO 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 MPO, 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 MPO 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.
If Contractor fails to remedy to the MPO' satisfaction the breach or default or any of the
terms, covenants, or conditions of this Contract within [ten (1 0) days] after receipt by Contractor or
written notice from the MPO setting forth the nature of said breach or default, the MPO 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 the MPO 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 the MPO elects to waive its
remedies for any breach by Contractor of any covenant, term or condition of this Contract, such
waiver by the MPO shall not limit the MPO' remedies for any succeeding breach of that or of any
other term, covenant, or condition of this Contract.
e. 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 MPO may terminate this
contract for default. The MPO 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.
f. 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 MPO may terminate this contract for default. The MPO 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 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 MPO, protect and preserve the goods until surrendered to
the Recipient or its agent. The Contractor and the MPO 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 MPO.
11/8/04
10
g. 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 MPO may terminate this
contract for default. The MPO 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 changed 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 [10] days from the beginning of any delay, notifies the MPO in writing of
the causes of delay. If in the judgment of the MPO, the delay is excusable, the time for completing
the work shall be extended. The judgment of the MPO shall be final and conclusive on the parties,
but subject 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.
h. Termination for Convenience or Default (Architect and Engineering) The MPO 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 MPO 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.
11/8/04
11
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.
i. Termination for Convenience of Default (Cost-Type Contracts) The MPO 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 MPO 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 MPO, or property supplied to
the Contractor by the MPO. If the termination is for default, the MPO 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 performed up
to the time of termination. The Contractor shall promptly submit its termination claim to the MPO
and the parties shall negotiate the termination settlement to be paid the Contractor.
If the termination is for the convenience of the MPO, 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 MPO 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 MPO, after setting up a new work
schedule, may allow the Contractor to continue work, or treat the termination as a termination for
convenience.
GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) 49 CFR Part
29
Executive Order 12549
Instructions for Certification
1. By signing and submitting this bid or proposal, the prospective lower tier
participant is providing the signed certification set out below .
2. The certification in this clause is a material representation of fact upon which
reliance was placed when this transaction was entered into. If it is later determined that the
prospective lower tier participant knowingly rendered an erroneous certification, in addition to other
remedies available to the Federal Government, the MPO may pursue available remedies, including
suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate written notice to the
MPO if at any time the prospective lower tier participant learns that its certification was erroneous
when submitted or has become erroneous by reason of changed circumstances.
4. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier
covered transaction," "participant," "persons," "lower tier covered transaction," "principal,"
"proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the
Definitions and Coverage sections of rules implementing Executive Order 12549 [49 CFR Part 29].
You may contact the MPO for assistance in obtaining a copy of those regulations.
11/8/04
12
5. The prospective lower tier participant agrees by submitting this proposal that,
should the proposed covered transaction be entered into, it shall not knowingly enter into any lower
tier covered transaction with a person who is debarred, suspended, declared ineligible, or
voluntarily excluded from participation in this covered transaction, unless authorized in writing by
the MPO.
6. The prospective lower tier participant further agrees by submitting this proposal
that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion - Lower Tier Covered Transaction", without modification, in all lower tier
covered transactions and in all solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective
participant in a lower tier covered transaction that it is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it knows that the certification is
erroneous, A participant may decide the method and frequency by which it determines the
eligibility of its principals. Each participant may, but is not required to, check the Nonprocurement
List issued by U.S. General Service Administration.
8. Nothing contained in the foregoing shall be construed to require establishment of
system of records in order to render in good faith the certification required by this clause. The
knowledge and information of a participant is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business dealings.
9. Except for transactions authorized under Paragraph 5 of these instructions, if a
participant in a covered transaction knowingly enters into a lower tier covered transaction with a
person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this
transaction, in addition to all remedies available to the Federal Government, the MPO may pursue
available remedies including suspension and/or debarment.
"Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier
Covered Transaction"
(1) The prospective lower tier participant certifies, by submission of this bid or
proposal, that neither it nor its "principals" [as defined at 49 C.F.R. 29.105(p)] is presently
debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from
participation in this transaction by any Federal department or agency.
(2) When the prospective lower tier participant is unable to certify to the statements in
this certification, such prospective participant shall attach an explanation to this proposal.
PRIVACY ACT
5 U.S.C. 552
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. The Federal Privacy Act requirements flow down
to each third party contractor and their contracts at every tier.
(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
11/8/04
13
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.
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 et seq.
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 VI I 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 cet., (which implement
Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order
No. 11375, "Amending Executive Order 1 1 246 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 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.
11/8/04
14
(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.
PATENT AND RIGHTS IN DATA
37 CFR Part 401
49 CFR Parts 18 and 19
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, FT/k 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.
(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)l 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.
11/8/04
15
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 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.
11/8/04
16
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.
(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.
11/8/04
17
DISADVANTAGED BUSINESS ENTERPRISE (DBE) 49 CFR Part 23
DBE Policy- It is the policy of the Department of Transportation, hereinafter referred to as DOT that
Disadvantaged Business Enterprises, as defined in 49 CFR Part 23, shall have the maximum
opportunity to participate in the performance of contracts financed in whole or in part with Federal
funds under this Agreement. Consequently, the DBE requirements of 49 CFR Part 23 apply to this
agreement.
DBE Obligation - The grantees and its vendors agree to ensure that DBEs as defined in 409 CFR Part
23, have the maximum opportunity to participate in the performance of contracts and subcontracts
financed in whole or in part with Federal funds provided under this Agreement. In this regard, all
grantees and vendors shall take all necessary and reasonable steps in accordance with 49 CFR Part
23 to ensure that the DBE have the maximum opportunity and shall not discriminate on the basis of
race, color, national origin, or sex in the award and performance of DOT-assisted contracts.
Disadvantaged Business Enterprise Provision
1. The Federal Fiscal Year goal has been set by the MPO in an attempt to match projected
procurements with available qualified disadvantaged businesses. the MPO goals for budgeted
service contracts, bus parts, and other material and supplies for Disadvantaged Business
Enterprises have been established by the MPO as set forth by the Department of Transportation
Regulations 49 C.F.R. Part 23, March 31, 1980, and amended by Section 106(c) of the Surface
Transportation Assistance Act of 1987, and is considered pertinent to any contract resulting from
this request for proposal.
If a specific DBE goal is assigned to this contract, it will be clearly stated in the Special
Specifications, and if the contractor is found to have failed to exert sufficient, reasonable, and good
faith efforts to involve DBE's in the work provided, the MPO may declare the Contractor
noncompliant and in breach of contract. If a goal is not stated in the Special Specifications, it will
be understood that no specific goal is assigned to this contract.
(a) Policy - It is the policy of the Department of Transportation and the MPO that
Disadvantaged Business Enterprises, as defined in 49 CFR Part 23, and as amended in Section
106(c) of the Surface Transportation and Uniform Relocation Assistance Act of 1987, shall have
the maximum opportunity to participate in the performance of Contract financed in whole or in part
with federal funds under this Agreement. Consequently, the DBE requirements of 49 CFR Part 23
and Section 106(c) of the STURAA of 1987, apply to this Contract.
The Contractor agrees to ensure that DBEs as defined in 49 CFR Part 23 and Section 106(c) of the
STURAA of 1987, have the maximum opportunity to participate in the whole or in part with federal
funds provided under this Agreement. In this regard, the Contractor shall take all necessary and
reasonable steps in accordance with the regulations to ensure that DBEs have the maximum
opportunity to compete for and perform subcontracts. The Contractor shall not discriminate on the
basis of race, color, national origin, religion, sex, age or physical handicap in the award and
performance of subcontracts.
It is further the policy of the MPO to promote the development and increase the participation of
businesses owned and controlled by disadvantaged. DBE involvement in all phases of the MPO
procurement activities is encouraged.
(b) DBE obligation - The Contractor and its subcontractors agree to ensure that disadvantaged
businesses have the maximum opportunity to participate in the performance of contracts and
11/8/04
18
subcontracts financed in whole or in part with federal funds provided under the Agreement. In that
regard, all Contractors and subcontractors shall take all necessary and reasonable steps in
accordance with 49 CFR Part 23 as amended, to ensure that minority business enterprises have
the maximum opportunity to compete for and perform contracts.
(c) Where the Contractor is found to have failed to exert sufficient reasonable and good faith
efforts to involve DBE's in the work provided, the MPO may declare the contractor noncompliant
and in breach of contract.
(d) The Contractor will keep records and documents for a reasonable time following
performance of this contract to indicate compliance with the MPO DBE program. These records
and documents will be made available at reasonable times and places for inspection by any
authorized representative of the MPO and will be submitted to the MPO upon request.
(e) The MPO will provide affirmative assistance as may be reasonable and necessary to assist
the prime contractor in implementing their programs for DBE participation. The assistance may
include the following upon request:
* Identification of qualified DBE
* Available listing of Minority Assistance Agencies
* Holding bid conferences to emphasize requirements
2. DBE Program Definitions, as used in the contract:
(a) Disadvantaged business "means a small business concern":
i. Which is at least 51 percent owned by one or more socially and economically
disadvantaged individuals, or, in the case of any publicly owned business, at least 51 percent of
the stock of which is owned by one or more socially and economically disadvantaged individuals;
and
ii. Whose management and daily business operations are controlled by one or more of the
socially and economically disadvantaged individuals who own it. or
iii. Which is at least 51 percent owned by one or more women individuals, or in the case of
any publicly owned business, at least 51 % of the stock of which is owned by one or more women
individuals; and
iv. Whose management and daily business operations are controlled by one or more women
individuals who own it.
(b) "Small business concern" means a small business as defined by Section 3 of the Small
Business Act and Appendix B - (Section 106(c)) Determinations of Business Size.
(c) "Socially and economically disadvantaged individuals" means those individuals who are
citizens of the United States (or lawfully admitted permanent residents) and States (or lawfully
admitted permanent residents) and who are black Americans, Hispanic Americans, Native
Americans, Asian-Pacific Americans, Asian-Indian Americans, or women, and any other minorities
or individuals found to be disadvantaged by the Small Business Administration pursuant to section
8(a) of the Small Business Act.
11/8/04
19
i. "Black Americans", which includes persons having origins in any of the Black racial groups
of Africa;
ii. "Hispanic Americans", which includes persons of Mexican, Puerto Rican, Cuba, Central or
South American, or other Spanish or Portuguese culture or origin, regardless of race;
iii. "Native Americans', which includes persons who are American Indians, Eskimos, Aleuts, or
Native Hawaiians;
iv. "Asian-Pacific Americans", which includes persons whose origins are from Japan, China,
Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the U.S. Trust
Territories of Pacific, and the Northern Marianas;
v. "Asian-Indian Americans", which includes persons whose origins are from India, Pakistan,
and Bangladesh.
INTERESTS OF MEMBERS OF OR DELEGATES TO CONGRESS
No member of or delegate to the Congress of the United States shall be admitted to any share or part
of this Agreement or to any benefit arising therefrom.
PROHIBITED INTEREST
No employee, officer, or agent of the grantee shall participate in selection, or in the award or
administration of a contract if a conflict of interest, real or apparent, would be involved. Such
conflict would arise when:
The employee, officer or agent; any member of his immediate family; his or her partner; or an
organization which employs, or is about to employ, has a financial or other interest in the firm
selected for award. The grantee's officers, employees, or agents shall neither solicit nor accept
gratuities, favors or anything of monetary value from contractors, potential contractors, or parties of
subagreements.
INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS
FTA Circular 4220.ID
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 D, dated April 15, 1996, 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 the MPO requests
which would cause the MPO to be in violation of the FTA terms and conditions.