HomeMy WebLinkAbout106089 WESTERN STATES LAND SERVICES INC - CONTRACT - BID - 7042 ACQUISITION AND RELOCATION SERVICES MASON CORRIDOR BRT PROJECTPROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into the day and year set forth below, by and between
THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the
"City" and Western States Land Services, Inc., hereinafter referred to as "Professional" or "Contractor".
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 Professional agrees to provide services in accordance with the
scope of services attached hereto as Exhibit "A", consisting of two (2) pages, and incorporated herein
by this reference.
2. Contract Period. This Agreement shall commence upon execution and shall continue in
full force and effect until December 31, 2010, unless sooner terminated as herein provided.
3. Early Termination by City. Notwithstanding the time periods contained herein, the City
may terminate this Agreement at any time without cause by providing written notice of termination to
the Professional. Such notice shall be delivered at least fifteen (15) days prior to the termination date
contained in said notice unless otherwise agreed in writing by the parties.
All notices provided under this Agreement shall be effective when mailed, postage prepaid and sent to
the following addresses:
Professional: City: I With Copy to:
Western States Land Services, Inc. Helen Matson, City of Fort Collins, Purchasing
Attn: Mr. Phil Mazur Real Estate Services PO Box 580
505 North Denver Avenue PO Box 580 Fort Collins, CO 80522
Loveland, CO 80537 Fort Collins, CO 80522
In the event of any such early termination by the City, the Professional shall be paid for services
rendered prior to the date of termination, subject only to the satisfactory performance of the
Professional's obligations under this Agreement. Such payment shall be the Professional's sole right
and remedy for such termination.
EXHIBIT C
INSURANCE REQUIREMENTS
1. The Professional will provide, from insurance companies acceptable to the City, the insurance
coverage designated hereinafter and pay all costs. Before commencing work under this bid, the
Professional shall furnish the City with certificates of insurance showing the type, amount, class of
operations covered, effective dates and date of expiration of policies, and containing substantially the
following statement:
"The insurance evidenced by this Certificate will not be cancelled or materially altered, except
after ten (10) days written notice has been received by the City of Fort Collins."
In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take
out and maintain, at the expense of the Professional, such insurance as the City may deem proper and
may deduct the cost of such insurance from any monies which may be due or become due the
Professional under this Agreement. The City, its officers, agents and employees shall be named as
additional insureds on the Professional's general liability and automobile liability insurance policies for
any claims arising out of work performed under this Agreement.
2. Insurance coverages shall be as follows:
A. Workers' Compensation & Employer's Liability. The Professional shall maintain during
the life of this Agreement for all of the Professional's employees engaged in work performed
under this agreement:
Workers' Compensation insurance with statutory limits as required by Colorado
law.
2. Employer's Liability insurance with limits of $100,000 per accident, $500,000
disease aggregate, and $100,000 disease each employee.
B. Commercial General & Vehicle Liability. The Professional shall maintain during the life of
this Agreement such commercial general liability and automobile liability insurance as will
provide coverage for damage claims of personal injury, including accidental death, as well as for
claims for property damage, which may arise directly or indirectly from the performance of work
under this Agreement. Coverage for property damage shall be on a "broad form" basis. The
amount of insurance for each coverage, Commercial General and Vehicle, shall not be less than
$500,000 combined single limits for bodily injury and property damage.
In the event any work is performed by a subcontractor, the Professional shall be responsible for
any liability directly or indirectly arising out of the work performed under this Agreement by a
subcontractor, which liability is not covered by the subcontractor's insurance.
EXHIBIT D
CONFIDENTIALITY
IN CONNECTION WITH SERVICES provided to the City of Fort Collins (the "City") pursuant to this
Agreement (the "Agreement"), the Contractor hereby acknowledges that it has been informed that the
City has established policies and procedures with regard to the handling of confidential information and
other sensitive materials.
In consideration of access to certain information, data and material (hereinafter individually and
collectively, regardless of nature, referred to as "information") that are the property of and/or relate to
the City or its employees, customers or suppliers, which access is related to the performance of
services that the Contractor has agreed to perform, the Contractor hereby acknowledges and agrees as
follows:
That information that has or will come into its possession or knowledge in connection with the
performance of services for the City may be confidential and/or proprietary. The Contractor agrees to
treat as confidential (a) all information that is owned by the City, or that relates to the business of the
City , or that is used by the City in carrying on business, and (b) all information that is proprietary to a
third party (including but not limited to customers and suppliers of the City) . The Contractor shall not
disclose any such information to any person not having a legitimate need -to -know for purposes
authorized by the City. Further, the Contractor shall not use such information to obtain any economic or
other benefit for itself, or any third party, except as specifically authorized by the City.
The foregoing to the contrary notwithstanding, the Contractor understands that it shall have no
obligation under this Agreement with respect to information and material that (a) becomes generally
known to the public by publication or some means other than a breach of duty of this Agreement, or (b)
is required by law, regulation or court order to be disclosed, provided that the request for such
disclosure is proper and the disclosure does not exceed that which is required. In the event of any
disclosure under (b) above, the Contractor shall furnish a copy of this Agreement to anyone to whom it
is required to make such disclosure and shall promptly advise the City in writing of each such
disclosure.
In the event that the Contractor ceases to perform services for the City, or the City so requests for any
reason, the Contractor shall promptly return to the City any and all information described hereinabove,
including all copies, notes and/or summaries (handwritten or mechanically produced) thereof, in its
possession or control or as to which it otherwise has access.
The Contractor understands and agrees that the City's remedies at law for a breach of the Contractor's
obligations under this Confidentiality Agreement may be inadequate and that the City shall, in the event
of any such breach, be entitled to seek equitable relief (including without limitation preliminary and
permanent injunctive relief and specific performance) in addition to all other remedies provided
hereunder or available at law.
EXHIBIT E
FEDERAL REQUIREMENTS
TABLE OF CONTENTS
BUYAMERICA REQUIREMENTS.................................-----...................................................................
2
CARGO PREFERENCE REQUIREMENTS............................................................................................
2
SEISMIC SAFETY REQUIREMENTS.....................................................................................................
2
ENERGY CONSERVATION REQUIREMENTS....................................................................................
2
CLEAN WATER REQUIREMENTS........................................................................................................
3
LOBBYING................................................................................................................................................
3
ACCESS TO RECORDS AND REPORTS...............................................................................................
3
FEDERALCHANGES...............................................................................................................................
4
CLEANAIR...............................................................................................................................................4
RECYCLED PRODUCTS ......................
DAVIS-BACON ACT..........................................._................._..............._...................................................
5
CONTRACT WORK HOURS AND SAFETY STANDARDS ACT 40 U.S.C. 827 -333 (1995)..........
10
COPELANDANTI -KICKBACK ACT...................................................................................................
11
NO GOVERNMENT OBLIGATION TO THIRD PARTIES.................................................................
12
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS ............................................
12
ANDRELATED ACTS................................._..........................................................................................
12
TERMINATION.......................................................................................................................................
13
GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) .....................
16
PRIVACYACT.........................................................................................................................................
17
CIVILRIGHTS REQUIREMENTS........................................................................................................
17
BREACHES AND DISPUTE RESOLUTION........................................................................................
18
PATENT AND RIGHTS IN DATA.........................................................................................................
19
DISADVANTAGED BUSINESS ENTERPRISE (DBE)....................................................................
22
INTERESTS OF MEMBERS OF OR DELEGATES TO CONGRESS ..........................................
24
INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS ......................
24
ATTACHMENTS:
Attachment 4 1 page
Certification Regarding Lobbying
Certification for Contracts, Grants, Loans, and Cooperative Agreements
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.
CARGO PREFERENCE REQUIREMENTS
46 U.S.C.1241
46 CFR Part 381
Cargo Preference - Use of United States -Flag Vessels - The contractor agrees: a. to use privately
owned United States -Flag commercial vessels to ship at least 50 percent of the gross tonnage
(computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping
any equipment, material, or commodities pursuant to the underlying contract to the extent such vessels
are available at fair and reasonable rates for United States -Flag commercial vessels; b. to furnish within
20 working days following the date of loading for shipments originating within the United States or
within 30 working days following the date of leading for shipments originating outside the United States,
a legible copy of a rated, "on -board" commercial ocean bill -of -lading in English for each shipment of
cargo described in the preceding paragraph to the Division of National Cargo, Office of Market
Development, Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the
contractor in the case of a subcontractor's bill -of -lading.) c. to include these requirements in all
subcontracts issued pursuant to this contract when the subcontract may involve the transport of
equipment, material, or commodities by ocean vessel.
SEISMIC SAFETY REQUIREMENTS
42 U.S.C. 7701 et seq. 49 CFR Part 41
Seismic Safety - The contractor agrees that any new building or addition to an existing building will be
designed and constructed in accordance with the standards for Seismic Safety required in Department
of Transportation Seismic Safety Regulations 49 CFR Part 41 and will certify to compliance to the
extent required by the regulation. The contractor also agrees to ensure that all work performed under
this contract including work performed by a subcontractor is in compliance with the standards required
by the Seismic Safety Regulations and the certification of compliance issued on the project.
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.
CLEAN WATER REQUIREMENTS
33 U.S.C. 1251
Clean Water
(1) The Contractor agrees to comply with all applicable standards, orders or regulations issued
pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et sec . The
Contractor agrees to report each violation to the Purchaser and understands and agrees that the
Purchaser will, in turn, report each violation as required to assure notification to FTA and the
appropriate EPA Regional Office.
(2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000
financed in whole or in part with Federal assistance provided by FTA.
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.
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,
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. 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.
4. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in
accordance with 49 U.S.C. 5325(a) enters into a contract for a capital project or improvement
(defined at 49 U.S.C. 5302(a)1) through other than competitive bidding, the Contractor shall
make available records related to the contract to the Purchaser, the Secretary of Transportation
and the Comptroller General or any authorized officer or employee of any of them for the
purposes of conducting an audit and inspection.
5. The Contractor agrees to permit any of the foregoing parties to reproduce by any means
whatsoever or to copy excerpts and transcriptions as reasonably needed.
6. The Contractor agrees to maintain all books, records, accounts and reports required under
this contract for a period of not less than three years after the date of termination or expiration of
this contract, except in the event of litigation or settlement of claims arising from the
performance of this contract, in which case Contractor agrees to maintain same until the
Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized
representatives, have disposed of all such litigation, appeals, claims or exceptions related
thereto. Reference 49 CFR 18.39(i)(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.
CLEAN AIR
42 U.S.C. 7401 et seq
40 CFR 15.61
49 CFR Part 18
Clean Air
1. The Contractor agrees to comply with all applicable standards, orders or regulations issued
pursuant to the Clean Air Act, as amended, 42 U.S.C.. 7401 et seq. The Contractor agrees to
report each violation to the Purchaser and understands and agrees that the Purchaser will, in
turn, report each violation as required to assure notification to FTA and the appropriate EPA
Regional Office.
2. The Contractor also agrees to include these requirements in each subcontract exceeding
$100,000 financed in whole or in part with Federal assistance provided by FTA.
RECYCLED PRODUCTS
42 U.S.C. 6962
40 CFR Part 247
Executive Order 12873
Recovered Materials - The contractor agrees to comply with all the requirements of Section 6002 of
the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not
limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to
the procurement of the items designated in Subpart B of 40 CFR Part 247.
DAVIS-BACON ACT
40 USC . 276a -276a-5 (1995)
29 CFR, 5 (1995)
The language in this clause is mandated under the DOL regulations at 29 C.F.R.. 5.5.)
Minimum wages —
(i) All laborers and mechanics employed or working upon the site of the work (or under the
United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development
of the project), will be paid unconditionally and not less often than once a week, and without
subsequent deduction or rebate on any account (except such payroll deductions as are permitted by
regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount
of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed
at rates not less than those contained in the wage determination of the Secretary of Labor which is
attached hereto and made a part hereof, regardless of any contractual relationship which may be
alleged to exist between the contractor and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1 (b)(2)
of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers
or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions
made or costs incurred for more than a weekly period (but not less often than quarterly) under plans,
funds, or programs which cover the particular weekly period, are deemed to be constructively made or
incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage
rate and fringe benefits on the wage determination for the classification of work actually performed,
without regard to skill, except as provided in 29 CFR Part 5.5(a)(4). Laborers or mechanics performing
work in more than one classification may be compensated at the rate specified for each classification
for the time actually worked therein: Provided, That the employees payroll records accurately set forth
the time spent in each classification in which work is performed. The wage determination and the
Davis -Bacon poster (WH-1 321) shall be posted at all times by the contractor and its subcontractors at
the site of the work in a prominent and accessible place where it can be easily seen by the workers.
(ii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or
mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either
pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an
hourly cash equivalent thereof.
(iii) If the contractor does not make payments to a trustee or other third person, the
contractor may consider as part of the wages of any laborer or mechanic the amount of any costs
reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That
the Secretary of Labor has found, upon the written request of the contractor, that the applicable
standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the contractor to
set aside in a separate account assets for the meeting of obligations under the plan or program.
(iv) (A) The contracting officer shall require that any class of laborers or mechanics which is
not listed in the wage determination and which is to be employed under the contract shall be classified
in conformance with the wage determination. The contracting officer shall approve an additional
classification and wage rate and fringe benefits therefor only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed
by a classification in the wage determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a
reasonable relationship to the wage rates contained in the wage
determination.
(B) If the contractor and the laborers and mechanics to be employed in the classification
(if known), or their representatives, and the contracting officer agree on the classification
and wage rate (including the amount designated for fringe benefits where appropriate), a
report of the action taken shall be sent by the contracting officer to the Administrator of
the Wage and Hour Division, Employment Standards Administration, Washington, DC
2021 0. The Administrator, or an authorized representative, will approve, modify, or
disapprove every additional classification action within 30 days of receipt and so advise
the contracting officer or will notify the contracting officer within the 30-day period that
additional time is necessary.
(C) In the event the contractor, the laborers or mechanics to be employed in the
classification or their representatives, and the contracting officer do not agree on the
proposed classification and wage rate (including the amount designated for fringe
benefits, where appropriate), the contracting officer shall refer the questions, including
the views of all interested parties and the recommendation of the contracting officer, to
the Administrator for determination. The Administrator, or an authorized representative,
will issue a determination with 30 days of receipt and so advise the contracting officer or
will notify the contracting officer within the 30-day period that additional time is
necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to
paragraphs (1)(iv) (B) or (C) of this section, shall be paid to all workers performing work
in the classification under this contract from the first day on which work is performed in
the classification.
2. Withholding - The City of Fort Collins shall upon its own action or upon written request of an
authorized representative of the Department of Labor withhold or cause to be withheld from the
contractor under this contract or any other Federal contract with the same prime contractor, or any
other federally -assisted contract subject to Davis -Bacon prevailing wage requirements, which is held by
the same prime contractor, so much of the accrued payments or advances as may be considered
necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by
the contractor or any subcontractor the full amount of wages required by the contract. In the event of
failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or
working on the site of the work (or under the United States Housing Act of 1937 or under the Housing
Act of 1949 in the construction or development of the project), all or part of the wages required by the
contract, the City of Fort Collins may, after written notice to the contractor, sponsor, applicant, or owner,
take such action as may be necessary to cause the suspension of any further payment, advance, or
guarantee of funds until such violations have ceased.
3. Payrolls and basic records - (i) Payrolls and basic records relating thereto shall be maintained
by the contractor during the course of the work and preserved for a period of three years thereafter for
all laborers and mechanics working at the site of the work (or under the United States Housing Act of
1937, or under the Housing Act of 1949, in the construction or development of the project). Such
records shall contain the name, address, and social security number of each such worker, his or her
correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for
bona fide fringe benefits or cash equivalents thereof of the types described in section 1 (b)(2)(B) of the
Davis -Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid.
Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or
mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or
program described in section 1 (b)(2)(B) of the Davis -Bacon Act, the contractor shall maintain records
which show that the commitment to provide such benefits is enforceable, that the plan or program is
financially responsible, and that the plan or program has been communicated in writing to the laborers
or mechanics affected, and records which show the costs anticipated or the actual cost incurred in
providing such benefits. Contractors employing apprentices or trainees under approved programs shall
maintain written evidence of the registration of apprenticeship programs and certification of trainee
programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in
the applicable programs.
(ii) (A) The contractor shall submit weekly for each week in which any contract work is
performed a copy of all payrolls to the City of Fort Collins for transmission to the Federal Transit
Administration. The payrolls submitted shall set out accurately and completely all of the information
required to be maintained under 29 CFR part 5. This information may be submitted in any form desired.
Optional Form WH-347 is available for this purpose and may be purchased from the Superintendent of
Documents (Federal Stock Number 029-005-00014-1), U.S. Government Printing Office, Washington,
DC 20402. The prime contractor is responsible for the submission of copies of payrolls by all
subcontractors.
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance,"
signed by the contractor or subcontractor or his or her agent who pays or supervises the
payment of the persons employed under the contract and shall certify the following:
(1) That the payroll for the payroll period contains the information required to be
maintained under 29 CFR part 5 and that such information is correct and
complete;
(2) That each laborer or mechanic (including each helper, apprentice, and
trainee) employed on the contract during the payroll period has been paid
the full weekly wages earned, without rebate, either directly or indirectly, and
that no deductions have been made either directly or indirectly from the full
wages earned, other than permissible deductions as set forth in Regulations,
29 CFR part 3;
(3) That each laborer or mechanic has been paid not less than the applicable
wage rates and fringe benefits or cash equivalents for the classification of
work performed, as specified in the applicable wage determination
incorporated into the contract.
(C) The weekly submission of a properly executed certification set forth on the reverse
side of Optional Form WH-347 shall satisfy the requirement for submission of the
"Statement of Compliance" required by paragraph (3)(ii)(B) of this section.
(D) The falsification of any of the above certifications may subject the contractor or
subcontractor to civil or criminal prosecution under section 1 001 of title 1 8 and
section 231 of title 31 of the United States Code.
(iii) The contractor or subcontractor shall make the records required under paragraph (3)(i)
of this section available for inspection, copying, or transcription by authorized representatives of the
Federal Transit Administration or the Department of Labor, and shall permit such representatives to
interview employees during working hours on the job. If the contractor or subcontractor fails to submit
the required records or to make them available, the Federal agency may, after written notice to the
contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the
suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the
required records upon request or to make such records available may be grounds for debarment action
pursuant to 29 CFR 5.12.
(4) Apprentices and trainees
(i) Apprentices - Apprentices will be permitted to work at less than the predetermined rate
for the work they performed when they are employed pursuant to and individually registered in a bona
fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training
Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency
recognized by the Bureau, or if a person is employed in his or her first 90 days of probationary
employment as an apprentice in such an apprenticeship program, who is not individually registered in
the program, but who has been certified by the Bureau of Apprenticeship and Training or a State
Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an
apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification
shall not be greater than the ratio permitted to the contractor as to the entire work force under the
registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or
otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed. In addition, any apprentice performing
work on the job site in excess of the ratio permitted under the registered program shall be paid not less
than the applicable wage rate on the wage determination for the work actually performed. Where a
contractor is performing construction on a project in a locality other than that in which its program is
registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate)
specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice
must be paid at not less than the rate specified in the registered program for the apprentice's level of
progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage
determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the
apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices
must be paid the full amount of fringe benefits listed on the wage determination for the applicable
classification. If the Administrator of the Wage and Hour Division of the U.S. Department of Labor
determines that a different practice prevails for the applicable apprentice classification, fringes shall be
paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, or a
State Apprenticeship Agency recognized by the Bureau, withdraws approval of an apprenticeship
program, the contractor will no longer be permitted to utilize apprentices at less than the applicable
predetermined rate for the work performed until an acceptable program is approved.
4. 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 City, its officers and employees in accordance with Colorado law, from all damages whatsoever
claimed by third parties against the City; and for the City's costs and reasonable 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 $N/A.
5. Compensation. In consideration of the services to be performed pursuant to this
Agreement, the City agrees to pay Professional on a time and reimbursable direct cost basis according
to Exhibit B consisting of two (2) pages and incorporated herein by this reference, with maximum
compensation (for both Professional's time and reimbursable direct costs) not to exceed One Hundred
Forty Eight Thousand Six Hundred Eighty Dollars ($148,680). Monthly partial payments based upon the
Professional's billings and itemized statements of reimbursable direct costs are permissible. The
amounts of all such partial payments shall be based upon the Professional's City -verified progress in
completing the services to be performed pursuant hereto and upon the City's approval of the
Professional's reimbursable direct costs. Final payment shall be made following acceptance of the work
by the City. Upon final payment, all designs, plans, reports, specifications, drawings and other services
rendered by the Professional shall become the sole property of the City.
6. City Representative. The City will designate, prior to commencement of work, its project
representative who shall make, within the scope of his or her authority, all necessary and proper
decisions with reference to the project. All requests for contract interpretations, change orders, and
other clarification or instruction shall be directed to the City Representative.
7. Independent Contractor. The services to be performed by Professional are those of an
independent contractor and not of an employee of the City of Fort Collins. The City shall not be
(ii) Trainees - Except as provided in 29 CFR 5.16, trainees will not be permitted to work at
less than the predetermined rate for the work performed unless they are employed pursuant to and
individually registered in a program which has received prior approval, evidenced by formal certification
by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to
journeymen on the job site shall not be greater than permitted under the plan approved by the
Employment and Training Administration. Every trainee must be paid at not less than the rate specified
in the approved program for the trainee's level of progress, expressed as a percentage of the
journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe
benefits in accordance with the provisions of the trainee program. If the trainee program does not
mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage
determination unless the Administrator of the Wage and Hour Division determines that there is an
apprenticeship program associated with the corresponding journeyman wage rate on the wage
determination which provides for less than full fringe benefits for apprentices. Any employee listed on
the payroll at a trainee rate who is not registered and participating in a training plan approved by the
Employment and Training Administration shall be paid not less than the applicable wage rate on the
wage determination for the classification of work actually performed. In addition, any trainee performing
work on the job site in excess of the ratio permitted under the registered program shall be paid not less
than the applicable wage rate on the wage determination for the work actually performed. In the event
the Employment and Training Administration withdraws approval of a training program, the contractor
will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work
performed until an acceptable program is approved.
(iii) Equal employment opportunity - The utilization of apprentices, trainees and journeymen
under this part shall be in conformity with the equal employment opportunity requirements
of Executive Order 1 1 246, as amended, and 29 CFR part 30.
(5) Compliance with Copeland Act requirements - The contractor shall comply with the
requirements of 29 CFR part 3, which are incorporated by reference in this contract.
(6) Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses
contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as the Federal Transit
Administration may by appropriate instructions require, and also a clause requiring the subcontractors
to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for
the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR
5.5.
(7) Contract termination: debarment - A breach of the contract clauses in 29 CFR 5.5 may be
grounds for termination of the contract, and for debarment as a contractor and a subcontractor as
provided in 29 CFR 5.12.
(8) Compliance with Davis -Bacon and Related Act requirements - All rulings and interpretations
of the Davis -Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by
reference in this contract.
(9) Disputes concerning labor standards - Disputes arising out of the labor standards provisions
of this contract shall not be subject to the general disputes clause of this contract. Such disputes
shall be resolved in accordance with the procedures of the Department of Labor set forth in 29
CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the
contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of
Labor, or the employees or their representatives.
(10) Certification of eligibility
(i) By entering into this contract, the contractor certifies that neither it (nor he or she) nor
any person or firm who has an interest in the contractor's firm is a person or firm
ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis -
Bacon Act or 29 CFR 5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award
of a Government contract by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR
5.12(a)(1).
(iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18
U.S.C. 1001.
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 City of Fort Collins 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.
(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.
COPELAND ANTI -KICKBACK ACT
40 U.S.C. 276c (1995)
29 C.F.R. 3 (1995)
29 C.F.R. 5 (1995)
3.1 of the Copeland Act makes it clear that the purpose of the Act is to assist in "the enforcement of
the minimum wage provisions of the Davis- Bacon Act." In keeping with this intent DOL has included a
section on the Copeland Act in the mandatory language of the Davis -Bacon provisions. The language
can be found at . 5.5(a)(5) of the Davis -Bacon model clauses and reads as follows:
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
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 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.
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 (1 0) 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. 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 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 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 City of Fort Collins, protect and preserve the goods until surrendered to the
Recipient or its agent. The Contractor and the City of Fort Collins 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 City of Fort Collins.
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 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. 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 City of Fort
Collins in writing of the causes of delay. If in the judgment of the City of Fort Collins, the delay is
excusable, the time for completing the work shall be extended. The judgment of the City of Fort
Collins 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 City of Fort
Collins 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 City of Fort Collins shall terminate by
delivering to the Contractor a Notice of Termination specifying the nature, extent, and effective date of
the termination. Upon receipt of the notice, the Contractor shall
(1) immediately discontinue all services affected (unless -the notice directs otherwise), and
(2) deliver to the Contracting Officer all data, drawings, specifications, reports, estimates,
summaries, and other information and materials accumulated in performing this contract,
whether completed or in process.
If the termination is for the convenience of the Recipient, the Contracting Officer shall make an
Equitable adjustment in the contract price but shall allow no anticipated profit on unperformed services.
If the termination is for failure of the Contractor to fulfill the contract obligations, the Recipient may
complete the work by contact or otherwise and the Contractor shall be liable for any additional cost
incurred by the Recipient.
If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in
default, the rights and obligations of the parties shall be the same as if the termination had been issued
for the convenience of the Recipient.
i. Termination for Convenience of Default (Cost -Type Contracts) The City of Fort Collins 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 City of Fort Collins 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 City of Fort Collins, or property supplied
to the Contractor by the City of Fort Collins. If the termination is for default, the City of Fort Collins 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 City of Fort Collins and the parties shall negotiate the termination settlement to be paid the
Contractor.
If the termination is for the convenience of the City of Fort Collins, 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 City of Fort Collins 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 City of Fort Collins, 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 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. _ 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 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 = .,
(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.
(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.
BREACHES AND DISPUTE RESOLUTION. 49 CFR Part 18
FTA Circular 4220.1 D
Pick applicable clause:
(1) 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.
(2) 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.
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.
8. Personal Services. It is understood that the City enters into this Agreement based on the
special abilities of the Professional and that this Agreement shall be considered as an agreement for
personal services. Accordingly, the Professional shall neither assign any responsibilities nor delegate
any duties arising under this Agreement without the prior written consent of the City.
9. Acceptance Not Waiver. The City'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 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.
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.\
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 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. 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
(3) Claims for Damages - Should either party to the Contract suffer injury or damage to person or
property because of any act or omission of the party or of any of his employees, agents or others for
whose acts he is legally liable, a claim for damages therefor shall be made in writing to such other party
within a reasonable time after the first observance of such injury of damage.
(4) 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 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 - 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)I and (2)(b)2 of this clause below. As used in the
previous sentence, "for Federal Government purposes," means use only for the
direct purposes of the Federal Government. Without the copyright owner's
consent, the Federal Government may not extend its Federal license to any other
party.
1. Any subject data developed under that contract, whether or not a
copyright has been obtained; and
2. Any rights of copyright purchased by the Purchaser or Contractor
using Federal assistance in whole or in part provided by FTA.
(b) 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.
(c) 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. 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 - This 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.
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 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":
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.
Transit Vehicle Manufacturers (26.49)
The City of Fort Collins will require each transit vehicle manufacturer, as a condition of being
authorized to bid or propose on FTA-assisted transit vehicle procurements, to certify that it has
complied with the requirements of this section.
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 City of Fort Collins requests which would cause the City of Fort
Collins to be in violation of the FTA terms and conditions.
Attachment 4
Certification Regarding Lobbying
Certification for Contracts, Grants, Loans, and Cooperative Agreements
(To be submitted with each bid or offer exceeding $100, 000)
The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to
any person for influencing or attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection
with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal
loan, the entering into of any cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for
making lobbying contacts to an officer or employee of any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in connection with this Federal
contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard
Form--LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions [as amended by
"Government wide Guidance for New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96). Note. -
Language in paragraph (2) herein has been modified in accordance with Section 10 of the Lobbying
Disclosure Act of 1995 (P.L. 104-65, to be codified at 2 U.S.C. 1601, et seq .)]
(3) The undersigned shall require that the language of this certification be included in the award documents
for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and
cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This
certification is a material representation of fact upon which reliance was placed when this transaction
was made or entered into. Submission of this certification is a prerequisite for making or entering into
this transaction imposed by 31, U.S.C.. 1352 (as amended by the Lobbying Disclosure Act of 1995).
Any person who fails to file the required certification shall be subject to a civil penalty of not less than
$10,000 and not more than $100,000 for each such failure.
[Note: Pursuant to 31 U.S.C.1352(c)(1)-(2)(A), any person who makes a prohibited expenditure or fails
to file or amend a required certification or disclosure form shall be subject to a civil penalty of not less
than $10,000 and not more than $100,000 for each such expenditure or failure.]
The Contractor, p—A-rd r "-1 1 TtiC- , certifies or affirms the
Truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the
Contractor understands and agrees that the provisions of 31 U.S.C. A 3801, et seq., apply to this
cer ficat n anq-disclosure, if any.
Signature of Contractor's Authorized Official
/* Name and Title of Contractor's Authorized Official
Date
Standard Professional Services Agreement- rev07/08
25
ACORD CERTIFICATE OF LIABILITY INSURANCE OP ID is DATE(MM/DDMY1'J
WESTE-1 06/29/09
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Richards, Seeley, & Schaefer, ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
Inc. HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
3640 W. 112th Avenue ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
Westminster CO 80031
Phone:303-429-3561 Fax:303-427-0611
INSURED
Western States Land Services
505 N Denver Avenue
Loveland CO 80537
INSURERS AFFORDING COVERAGE NAIC #
INSURER American States Insurance
INSURER 3 Pinnacol Assurance 41190
INSURER C
INSURER D
INSURER E
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING
CE
ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS
IMSK
LTR
rUL1 L
NSRC
TYPE OF INSURANCE
POLICY NUMBER
—
DATE (MM/DD/YY)
7MCY EXPIRATION
DATE (MM/DD/YY)
LIMITS
GENERAL LIABILITY
EACH OCCURRENCE
$ 1,000,000
A
X COMMERCIAL GENERAL LIABILITY
02BO88794500
12/15/08
12/15/09
PREMISES(Eacccurence)
$ 250,000
CLAIMS MADE � OCCUR
MED EXP (Any one person)
$ 10,000
PERSONAL 8 ADV INJURY
$ 1,000,000
GENERAL AGGREGATE
$ 2,000,000
GEN'L AGGREGATE LIMIT APPLIES PER.
PRODUCTS - COMP/OP AGG
$ 1,000,000
POLICY PE7 LOC
AUTOMOBILE
LIABILITY
A
ANY AUTO
02CD15012460
01/30/09
01/30/10
COMBINED SINGLE LIMIT
(Ea accident)
$ 1,000 Q00
X
ALL OWNED AUTOS.
BODILY INJURY
$
SCHEDULED AUTOS,
(Per person)
HIRED AUTOS
X
NON -OWNED AUTOS
BODILY INJURY
(Per accident)
$
X
PROPERTY DAMAGE
$
(Per accident)
GARAGE LIABILITY
AUTO AUTO ONLY - EA ACCIDENT
$
ANY AUTO
OTHER THAN EA ACC
$
AUTO ONLY AGG
EXCESS/UMBRELLA LIABILITY
EACH OCCURRENCE
$
OCCUR ❑ CLAIMS MADE
AGGREGATE
g
$
DEDUCTIBLE
RETENTION $
$
WORKERS COMPENSATION AND
X TORY LIMITS ER
B
EMPLOYERS'LIABILITY
EL EACH ACCIDENT
$1Q0,000
ANY PROPRIETOR/PARTNER/EXECUTIVE
3.803222
01/01/09
01/01/10
OFFICER/MEMBER EXCLUDED'
EL DISEASE - EA EMPLOYEE
$ 100,000
If yes, describe under
EL DISEASE - POLICY LIMIT $ 500 , 000
SPECIAL PROVISIONS below
OTHER
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS
City of Ft Collins are included as additional insureds.
RTIFICATE HOLDER rAmrFI I ATInKI
CITY019 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 10 DAYS WRITTEN
City Of F t . Collins NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL
Mr O'Neil
PO BOX 580 IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR
Ft. Collins CO 80522-0580 REPRESENTATIVES.
ACORD 25
PORATION 1988
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.
14. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et.
seq., Professional represents and agrees that:
a. As of the date of this Agreement:
1. Professional does not knowingly employ or contract with an illegal alien who
will perform work under this Agreement; and
2. Professional will participate in either the e-Verify program created in Public
Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th
Congress, as amended, administered by the United States Department of Homeland
Security (the "e-Verify Program") or the Department Program (the "Department
Program"), an employment verification program established pursuant to Section 8-17.5-
102(5)(c) C.R.S. in order to confirm the employment eligibility of all newly hired
employees to perform work under this Agreement.
b. Professional shall not knowingly employ or contract with an illegal alien to perform work
under this Agreement or knowingly enter into a contract with a subcontractor that knowingly
employs or contracts with an illegal alien to perform work under this Agreement.
C. Professional is prohibited from using the e-Verify Program or Department Program
procedures to undertake pre -employment screening of job applicants while this Agreement is
being performed.
d. If Professional obtains actual knowledge that a subcontractor performing work under this
Agreement knowingly employs or contracts with an illegal alien, Professional shall:
1. Notify such subcontractor and the City within three days that Professional has
actual knowledge that the subcontractor is employing or contracting with an illegal alien;
and
2. Terminate the subcontract with the subcontractor if within three days of receiving
the notice required pursuant to this section the subcontractor does not cease employing
or contracting with the illegal alien; except that Professional shall not terminate the
contract with the subcontractor if during such three days the subcontractor provides
information to establish that the subcontractor has not knowingly employed or contracted
with an illegal alien.
e. Professional shall comply with any reasonable request by the Colorado Department of
Labor and Employment (the "Department") made in the course of an investigation that the
Department undertakes or is undertaking pursuant to the authority established in Subsection 8-
17.5-102 (5), C.R.S.
If Professional violates any provision of this Agreement pertaining to the duties imposed
by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this Agreement is
so terminated, Professional shall be liable for actual and consequential damages to the City
arising out of Professional's violation of Subsection 8-17.5-102, C.R.S.
g. The City will notify the Office of the Secretary of State if Professional violates this
provision of this Agreement and the City terminates the Agreement for such breach.
15. Special Provisions. Special provisions or conditions relating to the services to be
performed pursuant to this Agreement are set forth in Exhibit 'D' Confidentiality, consisting of one (1)
page, and Exhibit 'E', "Federal Requirements", consisting of Twenty Five (25) pages, attached hereto
and incorporated herein by this reference.
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THE CITY OF FORT COLLINS, CO�L/ORADDO
By: /< ft J ` .
J les B. O'Neill II, CPPO, FNI
Directo f Purchasing & Risk Management
DATE: /-<D.-Q
Western States Land Services, Inc.
Title: P,4(L z,--' _ %Js,�,�-r
CORPORATE PRESIDENT OR VICE PRESIDENT
Date: 7— 6 - o y
A
(Corporate Seal)
Secretary
EXHIBIT A
SCOPE OF SERVICES
MASON CORRIDOR ACQUISITION AND RELOCATION SERVICES
The services will generally consist of providing professional services related to the acquisition of
required property interests and/or performance of relocation services, if required, for the BRT project.
A. Requirements:
1. Meetings and General Coordination
Professional shall regularly attend project team meetings with the BRT project team. In addition to
meetings with affected property owners, the Consultant shall also attend public meetings and open
houses as requested by the project team.
2. Documentation Preparation
All forms, including, but not limited to, letters, notices, agreements, easement agreement, etc., used for
the BRT Project must be as approved by the City of Fort Collins Attorney's Office ("CAO") and
consistent with those included in the RAMP. If during the project timeframe, changes are made in the
approved forms, the revised form will also need to be updated in the RAMP.
3. Appraisals
The firm of Bonnie Roerig and Associates has been selected as the appraiser for the entire BRT
Project. In addition the firm of Foster Valuation has been selected as the review appraiser for the entire
project. Once the properties have been appraised by Bonnie Roerig and Associates and the appraisals
have been reviewed by West Foster Valuation, the Fair Market Value ("FMV") will be established by the
City's Real Estate Services Manager. The Professional will use this FMV in their negotiations. In
addition, Professional will accompany Bonnie Roerig on property inspections.
If requested, Professional will perform a Value Finding for property interests with a value of less than
$5,000. Professional will submit the Value Finding to the City's Real Estate Office for approval. Once
approved, Professional will use this Value in negotiations.
4. Title Documents/Legal Descriptions
The City of Fort Collins has obtained title commitments on all potentially affected properties. These
commitments will be provided to the Professional. It will be the responsibility of the Professional to
update title commitments during the acquisition phase. Legal descriptions are being prepared by the
City's Surveyor. These legal descriptions will be provided to the Professional along with project plans.
5. Negotiations/Acquisitions
Once the Professional has entered into an Agreement with the City of Fort Collins, Professional shall
immediately begin acquisition services on Phase I of the acquisitions for the BRT project. All
negotiations must conform to the provisions of the Uniform Relocation Assistance and Real Property
Acquisitions Policies Act of 1970 as Amended (Public Law 91-646). In addition any change to
agreements will be approved by the City's Attorney's Office. Any counteroffers will be cleared through
City of Fort Collins Real Estate Services (City RES) and the Project Manager.
6. Relocation Services
Relocation services to be provided with current bid are for personal property relocation only. If the
Appraiser determines that Relocation is required on more than personal property on any of the property
acquisitions for the BRT Project, the Professional shall administer the relocation process as determined
by the Uniform Act.
7. Close Acquisitions
All executed Agreements will be presented to the City RES. The City RES will then route the
Agreements through the City for the appropriate signatures. Professional shall assist the City RES and
the title company to obtain clear title. If requested, the Professional shall assist the title company with
acquisitions that are being closed by the title company.
8. Eminent Domain Proceedings
Professional shall represent the City in all eminent domain proceedings, including court trials,
depositions and testimony. Specifically, as negotiations progress, the City/RES will be aware through
written and oral communications of any parcels which appear likely to reach impasse. The specific
reasons for difficulties in any negotiations will set forth in writing and in meetings with the City and its
legal counsel. Adjustments will be made as necessary during the negotiation process relative to any
legal advice or strategy required by the City including Compromised Offer letters to afford the City
limited protection from potential attorney's fees. Provided we are at a final impasse in negotiations and
pursuant to instructions from the City/RES, Professional will provide a packet to RES and its legal
counsel which contains, in chronological order, all pertinent file information regarding negotiations,
appraisals, title work and other information necessary to assist the City in filing the proper pleadings in
eminent domain. As directed, Professional will be available to assist the City in any pre -hearing / trial
conferences and provide testimony regarding good faith negotiations in District Court.
9. RIGHT OF WAY CLEARANCE — PAYMENT REQUESTS
In accordance with FTA procedures required in order to obtain payment and reimbursements to the City
from FTA for project costs. As deemed necessary, Professional will provide support to the City/ RES in
documenting actual expenses and proper procedures utilized in the right of way acquisition process in
order to comply with the FTA Payment Standards.
EXHIBIT B
SCHEDULI OF FEES AND COSTS
AND COST I STINIATE-' TO PROVIDE SERVICES
The following is the standard fee and cost schedule for Western States Land Services for calendar year
2009. These fees and costs are applicable to the City of Fort Collins MAX — BRT Project:
Hourly
Supervisor (Phil B. Mazur) $65 per hour
Project Manager (Michael D. Morgan) $60 per hour
Acquisition / Relocation Specialist $55 per hoar
(John Doty and Ron Loose)
Administrative Support (Linette Kwan) $35 per hour
Expenses
Expenses are charged at the actual cost with no surcharge. Direct expenses for iterns such as
postage, telephone, etc. are charged at actual cost with no surcharge
Mileage (or Federal Government Allowance) $ .46 per mile
Photocopies $ .20 per page
Facsimiles $1.00 per page
Computer/PC/AT/Word Processor Included in regular rates
COST ESTIMATE
As set forth in the City's RFP and elsewhere in this proposal, it is anticipated that the project services for
Phase I will begin immediately upon receipt of Notice to Proceed from the City. From a staff level, we
plan to utilize Michael D. Morgan as the principal field agent with field and office support from Phil B.
Mazur and Linette Kwan to initiate the acquisitions for the eight (8) ownerships established for Phase I
acquisitions. As Phase I services continue, it is anticipated that Phase 11 ownerships may be released for
acquisition, and subsequent to that, Phase 111. As the specific dates for release of Phase II and Phase Ill
property acquisitions are unknown at this time, we anticipate continuing to employ the same team of Mr.
Morgan, Mr. Mazur and Ms. Kwan to perform the acquisition services, and in the event the level of
services required for the Project (i.e. number of property ownerships with whom negotiations must occur
simultaneously), Mr. John Doty and Mr. Ron Loose will be available to augment our services to insure
that the appropriate level of participation is available to accommodate the Project's goals.
We anticipate an ebb and flow of our services based on die availability and release of necessary
components such as legal descriptions, appraisals and the like. A distinct advantage that Western States
offers to the City for this Project is the use of our in-house personnel who are available to fulfill the
Project needs on an as needed basis and not over commit our personnel. We have found this to be the
most cost effective and efficient process to provide services to our local clients.
The following is our estimate of overall costs:
Senior Agent (1 7720 flours x $60 per hour) $103,200x
Supervisor (200 hours x $65 per hour) $ 13,000
Administrative S.i4iR rt (698 hours x S35 per hour) 24,080
]Iota( labor $140,280
Experases_.(copies, facsimiles,.postage,_.mileage, etc.) $.:.__8,4O:0
Grand Total $148,680
* As the proposed fee stated above indicates, the number of hours expended by field agents on this
Project is the single largest factor contributing to said fees. Without knowing a more definite schedule
regarding the release of acquisitions for Phases 11 and III for the Project, it is difficult to accurately
project this estimate. Depending upon the release dates of the additional acquisitions and the progress of
on going services, there may be an economy of scale that can be achieved on this Project that could
reduce the projected agent hours. We remain open and available to discuss this further with the City now
or as the Project progresses.
The above quotation is not considered as an absolute bid and it is Western States practice to charge our
clients only the actual hours and expenses incurred on any project. In the event, upon the completion of
our services we have not expended the entire budget referenced above, then that would result in a cost
savings to the City. As noted in our budgetary review included in our project references, that has been a
typical occurrence. In the event unforeseen circumstances arise during the prosecution of out- work, or
should additional services be requested by the City, causing our services to exceed the above established
budget, then we would not incur charges in excess of this amount without providing to the City the basis
for any adjustment in our budget and receiving approval of same.