HomeMy WebLinkAbout102564 DELLENBACH MOTORS - CONTRACT - BID - 5776 COMMUTER POOL VAN LEASING REVISEDSERVICES AGREEMENT
Commuter Pool Van Leasing
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 Dellenbach Motors, Inc., hereinafter referred to as "Service Provider".
WITNESSETH:
In consideration of the mutual covenants and obligations herein expressed, it is agreed by and
between the parties hereto as follows:
1. Scope of Services
The Service Provider agrees to provide Commuter Pool Vans equipped as set forth in Bid
#5776 including changes in equipment as negotiated and agreed to by both parties.
2. Contract Period
This Agreement shall commence upon signing, and shall continue in full force and effect until
April 30, 2004, unless sooner terminated as herein provided. In addition, at the option of the
City, the Agreement may be extended for additional one year periods not to exceed four (4)
additional one year periods. Pricing changes shall be negotiated by and agreed to by both
parties. Written notice of renewal shall be provided to the Service Provider and mailed no later
than thirty (30) days prior to contract end.
3. Delay
If either party is prevented in whole or in part from performing its obligations by unforeseeable
causes beyond its reasonable control and without its fault or negligence, then the party so
prevented shall be excused from whatever performance is prevented by such cause. To the
extent that the performance is actually prevented, the party so prevented must provide written
notice to the other party of such condition within fifteen (15) days from the onset of such
condition.
4. Early Termination by City/Notice
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 Service Provider. 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:
City: Service Provider:
City of Fort Collins Purchasing Dellenbach Motors, Inc.
PO Box 580 3111 S. College
Fort Collins, CO 80521 Ft. Collins, CO 80525
In the event of early termination by the City, the Service Provider shall be paid for services
rendered to the date of termination, subject only to the satisfactory performance of the Service
Provider's obligations under this Agreement. Such payment shall be the Service Provider's sole
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(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.0 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.
CIVIL RIGHTS REQUIREMENTS
29 U.S.C.0 623, 42 U.S.C.0 2000
42 U.S.C.0 6102, 42 U.S.C.0 12112
42 U.S.C.0 12132, 49 U.S.C.0 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.0 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. 0
6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C.0 12132, and Federal
transit law at 49 U.S.C.0 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.0 2000e, and Federal transit laws at 49 U.S.C.0 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 = .,
(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.0 2000e note), and with any applicable Federal statutes,
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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) Acme - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C.0 623 and Federal transit law at 49 U.S.C.0 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.0 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.
BREACHES AND DISPUTE RESOLUTION. 49 CFR Part 18
FTA Circular 4220.1 D
Disputes - Disputes arising in the performance of this Contract which are not resolved by
agreement of the parties shall be decided in writing by the authorized representative of the City
of Fort Collins'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 the City of Fort Collins,
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 therefore 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 City of Fort Collins 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 City of Fort Collins is
located. 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
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failure to act by the City of Fort Collins, (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 agreed in writing.
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 - Not applicable
B. Patent Rights - Not applicable
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 City of Fort Collins in an attempt to
match projected procurements with available qualified disadvantaged businesses. the City of
Fort Collins goals for budgeted service contracts, bus parts, and other material and supplies for
Disadvantaged Business Enterprises have been established by the City of Fort Collins 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
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Specifications, and if the contractor is found to have failed to exert sufficient, reasonable, and
good faith efforts to involve DBEs in the work provided, the City of Fort Collins 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 City of Fort Collins
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 City of Fort Collins to promote the development and increase the
participation of businesses owned and controlled by disadvantaged. DBE involvement in all
phases of the City of Fort Collins procurement activities are 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 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 DBEs in the work provided, the City of Fort Collins 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 City of Fort Collins DBE program.
These records and documents will be made available at reasonable times and places for
inspection by any authorized representative of the City of Fort Collins and will be submitted to
the City of Fort Collins upon request.
(e) the City of Fort Collins 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":
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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.
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
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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.I1)
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 City of Fort Collins requests which would cause the City of Fort Collins to be in violation of
the FTA terms and conditions.
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right and remedy for such termination.
5. Contract Sum
The City shall pay the Service Provider for the performance of this Contract, subject to additions
and deletions provided herein, according to the following schedule:
2003 — 8 -Passenger van, monthly lease: $717.05, per Service Provider's bid proposal.
2003 - 11-Passenger van, monthly lease: $686.97, per Service Provider's bid proposal.
Lease pricing for vans ordered subsequent to the initial order shall be negotiated and agreed to
by both parties. Lease terms shall be for a two-year period. Leased vehicles shall be driven no
more than 60,000 miles over such term.
City Representative
Ken Mannon, Operations Services Director, or his designate, shall be the City's representative
who shall make, within the scope of his or her authority, all necessary and proper decisions with
reference to the services provided under this agreement. All requests concerning this
agreement shall be directed to the City Representative.
6. Independent Service provider
The services to be performed by Service Provider are those of an independent service provider
and not of an employee of the City of Fort Collins. The City shall not be responsible for
withholding any portion of Service Provider's compensation hereunder for the payment of FICA,
Workmen's Compensation or other taxes or benefits or for any other purpose.
7. Personal Services
It is understood that the City enters into the Agreement based on the special abilities of the
Service Provider and that this Agreement shall be considered as an agreement for personal
services. Accordingly, the Service Provider shall neither assign any responsibilities nor
delegate any duties arising under the Agreement without the prior written consent of the City.
8. Acceptance Not Waiver
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 or
cause of action arising out of performance of this Agreement.
9. Warranty
Service Provider warrants that all vans supplied to the City shall be new and covered by
standard new vehicle warranty.
10. 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 thereof.
11. 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
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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.
12. 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.
13. Indemnity/Insurance
a. The Service Provider agrees to indemnify and save harmless the City, its officers,
agents and employees against and from any and all actions, suits, claims, demands or
liability of any character whatsoever brought or asserted for injuries to or death of any
person or persons, or damages to property arising out of, result from or occurring in
connection with the performance of any service hereunder.
b. The Service Provider shall take all necessary precautions in performing the work
hereunder to prevent injury to persons and property.
14. Entire Agreement
This Agreement, along with all Exhibits and other documents incorporated herein, shall
constitute the entire Agreement of the parties. Covenants or representations not contained in
this Agreement shall not be binding on the parties.
15. 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.
16. Special Provisions
Special provisions or conditions relating to the services to be performed pursuant to this
Agreement are set forth in Exhibit "A", Federal Requirements, consisting of twelve (12) pages,
attached hereto and incorporated herein by this reference.
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tes"I -4At'-PJ
City Clerk
Approve s to form
Ingri eck
Assistant City Attorney
CITY OF FORT COLLINS, COLORADO
a municipal corporation
By: \ni'�—q /-. /-f—X�'A
�- John F. Fischbach
/"Cily Manager
By:
Jame . C'Neill II, CPPO, FNIGP
Direct r of urchasing and Risk Management
Date:
Dellenbach Motors, Inc.
By
R. Michael Dellenbach, President
Date: q - I S — D
Exhibit A: Federal Requirements
BUY AMERICA REQUIREMENTS
49 U.S.C. 53230)49 CFR Part 661
The Buy America regulation, at 49 CFR 661.13, requires notification of the Buy America
requirements in FTA-funded contracts. The contractor agrees to comply with 49 U.S.C. 53230)
and 49 CFR 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 CFR 661.7, and include final assembly in the United States for 15
passenger vans and 15 passenger wagons produced by Chrysler Corporation, microcomputer
equipment, software, and small purchases (currently less than $100,000) made with capital,
operating, or planning funds. Separate requirements for rolling stock are set out at 53230)(2)(C)
and 49 CFR 661.11. Rolling stock not subject to a general waiver must be manufactured in the
United States and have a 60 percent domestic content.
ENERGY CONSERVATION REQUIREMENTS
42 U.S.C. 6321 et seq. 49 CFR Part 18
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.
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.0 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.
APPENDIX A, 49 CFR PART 20--CERTIFICATION REGARDING LOBBYING
Submit signed Attachment 4, Certification Regarding Lobbying, with Bid or Proposal.
Certification for Contracts, Grants, Loans, and Cooperative Agreements
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,
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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. Not applicable
3. Not applicable
4. Not applicable
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)(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.
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.
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
X
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.0 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.0 5307, the Government
reserves the right to impose the penalties of 18 U.S.C.0 1001 and 49 U.S.C.0 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 City of Fort Collins 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 City of Fort Collins to be paid the Contractor. If the
Contractor has any property in its possession belonging to the City of Fort Collins, the
Contractor will account for the same, and dispose of it in the manner the City of Fort Collins
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 City of Fort Collins 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 City of Fort Collins 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 City of Fort Collins, 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.
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C. Opportunity to Cure (General Provision) The City of Fort Collins 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 City of Fort Collins' satisfaction the breach or default or any
of the terms, covenants, or conditions of this Contract within [ten (10) days] after receipt by
Contractor or written notice from the City of Fort Collins setting forth the nature of said breach or
default, the City of Fort Collins 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 City of Fort Collins 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 City of Fort Collins elects to
waive its remedies for any breach by Contractor of any covenant, term or condition of this
Contract, such waiver by the City of Fort Collins shall not limit the City of Fort Collins's 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 City of Fort Collins
may terminate this contract for default. The City of Fort Collins 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. Not applicable
g. Not applicable
h. Not applicable
i. Not applicable
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
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other remedies available to the Federal Government, the City of Fort Collins may pursue
available remedies, including suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate written notice to
the City of Fort Collins 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 City of Fort Collins for assistance in obtaining a copy of those
regulations.
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 City of Fort Collins.
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 City of Fort
Collins 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.0 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.
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