HomeMy WebLinkAboutRFP - 7099 ENGINEERING SERVICES - NFRMPOC'}" 0f
Financial Services
Purchasing Division
215 N. Mason St. 2nd Floor
6rtColli
Fns
PO Box 580
Fort Collins, CO 80522
�Purchasin g
970.221.6775
970.221.6707
fcgov. com/purchasing
REQUEST FOR PROPOSAL
7099 Engineering Services - NFRMPO
Written proposals, six (6) will be received at the City of Fort Collins' Purchasing Division, 215
North Mason St., 2nd floor, Fort Collins, Colorado 80524. Proposals will be received before
3:00 p.m. (our clock), January 19, 2010. Proposal No.7099 Engineering Services - NFRMPO. If
delivered, they are to be sent to 215 North Mason Street, 2"d Floor, Fort Collins, Colorado
80524. If mailed, the address is P.O. Box 580, Fort Collins, 80522-0580.
Questions concerning the scope of the project should be directed to Project Manager Suzette
Mallette, (970) 416-2257.
Questions regarding bid submittal or process should be directed to James B. O'Neill, II, CPPO,
FNIGP, (970)221-6779.
A copy of the Proposal may be obtained as follows:
Download the Proposal/Bid from the BuySpeed Webpage,
www.fcgov.com/eprocurement
2. Come by Purchasing at 215 North Mason St., 2nd floor, Fort Collins, and request a
copy of the Bid.
The City of Fort Collins is subject to public information laws, which permit access to most
records and documents. Proprietary information in your response must be clearly identified and
will be protected to the extent legally permissible. Proposals may not be marked `Proprietary' in
their entirety. Information considered proprietary is limited to material treated as confidential in
the normal conduct of business, trade secrets, discount information, and individual product or
service pricing. Summary price information may not be designated as proprietary as such
information may be carried forward into other public documents. All provisions of any contract
resulting from this request for proposal will be public information.
Sales Prohibited/Conflict of Interest: No officer, employee, or member of City Council, shall
have a financial interest in the sale to the City of any real or personal property, equipment,
material, supplies or services where such officer or employee exercises directly or indirectly any
decision -making authority concerning such sale or any supervisory authority over the services to
be rendered. This rule also applies to subcontracts with the City. Soliciting or accepting any gift,
gratuity favor, entertainment, kickback or any items of monetary value from any person who has
or is seeking to do business with the City of Fort Collins is prohibited.
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this day of ,
2005, by and between THE NORTH FRONT RANGE TRANSPORTATION AND AIR
QUALITY PLANNING COUNCIL (the "MPO") and , ("Professional").
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. Professional agrees to provide services in accordance with the
scope of services attached hereto as Exhibit A and incorporated herein by this reference (the
"Scope of Services").
2. Time. The services to be performed pursuant to this Agreement shall be initiated
as specified on the Scope of Services. Time is of the essence. Any extensions of any time limit
must be agreed upon in writing by the parties hereto.
3. Contract Period. This Agreement shall commence on Ldatel, and shall continue in
full force and effect until date , unless terminated sooner as herein provided.
4. 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, and this
Agreement may be terminated.
5. Early Termination by MPO. Notwithstanding the time periods contained herein,
the MPO may terminate this Agreement at any time for the MPO's convenience or because of the
failure of Professional to fulfill the contract obligations. The MPO shall terminate by providing
at least fifteen (15) days prior written notice of termination by delivering to Professional a notice
of termination specifying the nature, extent, and effective date of the termination. Upon receipt
of the notice, Professional shall immediately discontinue all services affected (unless the notice
directs otherwise) and deliver to the MPO 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 convenience, the MPO 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 Professional to fulfill. the contract obligations, the
MPO may complete the work and Professional shall be liable for any additional cost incurred by
the MPO. If, after termination for failure to fulfill contract obligations, it is determined that
Professional was not in default, the rights and obligations of the parties shall be the same as if the
termination had been issued for the convenience of the MPO.
6. Opportunity to Cure. In the case of a breach or default, the MPO may, in its sole
discretion, allow Professional a period of time in which to cure the defect. In such case, the
notice of termination shall state the time period in which cure is permitted and other appropriate
conditions. If Professional fails to remedy to the MPO's satisfaction the breach or default or any
10
of the terms, covenants, or conditions of this Agreement within ten (10) days after receipt by
Professional of written notice from the MPO setting forth the nature of said breach or default, the
MPO may terminate the Agreement without any further obligation to Professional and seek
damages, may treat the Agreement as continuing and require specific performance, or may avail
itself of any other remedy at law or equity. If the MPO commences legal or equitable actions
against Professional, Professional shall be liable to the MPO for the MPO's reasonable attorney
fees and costs incurred because of the default. Any such termination for default shall not in any
way operate to preclude the MPO from also pursuing all available remedies against Professional
and its sureties for said breach or default.
7. Waiver of Remedies for any Breach. If the MPO elects to waive its remedies for
any breach by Professional of any covenant, term or condition of this Agreement, such waiver by
the MPO shall not limit the MPO's remedies for any succeeding breach of that or of any other
term, covenant, or condition of this Agreement.
8. Responsibility. 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.
9. Indemnification. Professional shall indemnify, hold harmless and defend the
MPO and its representatives, officers, employees, agents, and contractors from and against all
liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, or
judgments, including, without limitation, reasonable attorney fees, arising from or in any way
connected with injury to or the death of any person or physical damage to any property resulting
from any act, omission, condition, or other matter related to this Agreement.
10. Insurance. 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 $1,000,000.
11. Compensation. In consideration of the services to be performed pursuant to this
Agreement, the MPO agrees to pay Professional on a time and reimbursable direct cost basis
according to the schedule outlined in the Scope of Work — Exhibit A, with maximum
compensation (for both Professional's time and reimbursable direct costs) not to exceed
dollars ($ ). Monthly invoices are required and shall include a
description of services performed, along with number of hours and stated rates per hour.
Supporting documentation shall also be submitted for any reimbursable direct costs. The
amounts of all such billings shall be based upon the Professional's MPO-verified progress in
completing the services to be performed pursuant to the Scope of Services and upon approval of
the Professional's direct reimbursable expenses. Final payment shall be made following
acceptance of the work by the MPO.
12. Records and Reports. The MPO and Professional shall maintain all books,
records, and other documentation pertaining to the Scope of Services and necessary to
11
completely substantiate all costs incurred and billed to the MPO during the term of this
Agreement for a period of three (3) years from the date of final payment under the terms of this
Agreement. These records shall be made available for inspection and audit to any state or
federal authority authorized to inspect such records and copies thereof shall be furnished at the
expense of Professional, if so requested.
13. Ownership of Work Product. Upon final payment, all designs, plans, reports,
specifications, drawings, and other services rendered by Professional shall become the sole
property of the MPO, which shall have the royalty -free, nonexclusive and irrevocable right to
reproduce, publish, or otherwise use and authorize others to use all such materials for authorized
government purposes. Other entities that may reproduce, publish, or otherwise use the designs,
plans, reports, specifications, drawings, and other services rendered by Professional include but
are not limited to the Colorado Department of Transportation ("CDOT"), the Federal
Transportation Administration ("FTA"), and the Federal Highway Administration ("FHWA").
14. MPO Representative. The MPO shall designate, prior to commencement of work,
its project representative who shall make, within the scope of his or her authority, all necessary
and proper decisions with reference to the project. All requests for contract interpretations,
change orders, and other clarification or instruction shall be directed to the MPO Representative.
15. Project Documents. Upon conclusion of the project and before final payment, the
Professional shall provide the MPO with reproducible documents of the project containing
accurate information on the project as designed. Documents shall be of archival quality, and also
available in an electronic format, in an agreed upon format.
16. Monthly Report. Commencing at the end of the calendar month following the
date of execution of this Agreement and every calendar month end thereafter, Professional shall
provide the MPO with a written report of the status of the work. Failure to provide any required
monthly report may, at the option of the MPO, suspend the processing of any partial payment
request.
17. Independent Contractor. The services to be performed by Professional are those
of an independent contractor and not of an employee of the MPO. The MPO shall not be
responsible for withholding any portion of Professional's compensation hereunder for the
payment of FICA, Workers' Compensation, other taxes or benefits or for any other purpose.
18. Personal Services. It is understood that the MPO enters into this Agreement
based on the special abilities of Professional and that this Agreement shall be considered as an
agreement for personal services. Accordingly, Professional shall neither assign any
responsibilities nor delegate any duties, nor create any subcontracts arising under this Agreement
without the prior written consent of the MPO.
19. Conflict of Interests and Prohibited Interests. The MPO and Professional
represent that neither has any interests and shall not acquire any interests, directly or indirectly,
that would conflict in any manner or degree with the performance and services required to be
performed under this Agreement. The MPO and Professional further represent that no member
12
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. In addition no employee, officer, or agent of the
MPO shall participate in selection or in the award or administration of this Agreement 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 any of the foregoing, has a financial or other
interest in the firm selected for award. The MPO'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.
20. No Waiver. The MPO's approval of drawings, designs, plans, specifications,
reports, and incidental work or materials furnished hereunder shall not in any way relieve the
Professional of responsibility for the quality or technical accuracy of the work. The MPO's
approval or acceptance of, or payment for, any of the services shall not be construed to operate
as a waiver of any rights or benefits provided to the MPO under this Agreement.
21. No Government Obligation to Third Parties. The MPO and Professional
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 Agreement and
shall not be subject to any obligations or liabilities to the MPO, Professional, or any other party
(whether or not a party to this Agreement) pertaining to any matter resulting from this
Agreement.
22. Notices. All notices provided under this Agreement shall be effective when
mailed, postage prepaid and sent to the following addresses:
Professional:
MPO:
With Copy to:
THE NFRT & AQPC
City of Fort Collins
Attn:
Attn:
Purchasing
Address
235 Mathews St.
PO Box 580
City, ST Zip
Fort Collins, CO 80524
Ft Collins, CO 80522
23. Incorporation of FTA Terms. This Agreement includes certain Standard Terms
and Conditions required by the federal Department of Transportation ("DOT") and other federal
and state authorities, whether or not expressly set forth in this Agreement. All contractual
provisions required by DOT, as set forth in FTA Circular 4220.11), dated April 15, 1996, are
hereby incorporated by reference. Anythingto 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. Professional shall not perform any act, fail to .perform any act, or
refuse to comply with any the MPO requests which would cause the MPO to be in violation of
the FTA terms and conditions.
24. Grant Assurances and Federal Requirements. This Agreement involves the
expenditure of federal funds, which requires the MPO and Professional at all times during the
execution of this Agreement to adhere to and comply with all applicable federal laws and
regulations, as they currently exist and may hereafter be amended, which are incorporated
13
herein by this reference as terms and conditions of this Agreement. A non -exhaustive list of
federal laws and regulations that may be applicable is included below. By signing this
Agreement, Professional avers that it is his or her responsibility to be aware of the requirements
that may be imposed by the following federal laws and regulations, and others not listed, that he
or she is aware of any such requirements, and that he or she will comply with all applicable laws
and regulations.
a. Laws and regulations prohibiting false claims and statements from being
made to the federal government, 31 U.S.C.A § 3801, et seq., 49 C.F.R. Part 31, and 18
U.S.C.A. § 1001;
b. Federal privacy law, 5 U.S.C.A. § 552;
C. Nondiscrimination and equal employment opportunity laws in accordance
with Title VI of the Civil Rights Act, 42 U.S.C.A. § 2000d; § 303 of the Age
Discrimination Act of 1975, 42 U.S.C.A. § 6102; § 202 of the Americans with
Disabilities Act of 1990, 42 U.S.C.A. § 12132 ("ADA"); and Federal transit law, 49
U.S.C.A. § 5332;
d. Mandatory standards and policies relating to energy efficiency that are
contained in the state energy conservation plan issued in compliance with the Energy
Policy and Conservation Act, 42 U.S.C.A. § 6201.
25. BindingE. This Agreement, 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.
26. Governing Law. The laws of the State of Colorado shall govern the construction,
interpretation, execution and enforcement of this Agreement.
27. Severability. In the event any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision of this Agreement.
28. 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
14
pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment
eligibilityof 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
Professional has actual knowledge that
contracting with an illegal alien; and
and the City within three days that
the subcontractor is employing or
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.
f. 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.
29. Amendment 54. To the extent that this Agreement may constitute a "sole
source government contract" within the meaning of Section 2(14.4) of Article XXVIII of the
constitution of the State of Colorado, about which the City makes no representation, Section 15
of said Article XXVIII, which reads as follows, is hereby incorporated into this Agreement and
made a part hereof:
15
a. Section 15. Because of a presumption of impropriety between
contributions to any campaign and sole source government contracts, contract holders
shall contractually agree, for the duration of the contract and for two years thereafter, to
cease making, causing to be made, or inducing by any means, a contribution, directly or
indirectly, on behalf of the contract holder or on behalf of his or her immediate family
member and for the benefit of any political party or for the benefit of any candidate for
any elected office of the state (of Colorado) or any of its political subdivisions.
30. Special Provisions. Special provisions or conditions relating to federal patent law
and rights in data that are applicable to this Agreement are set forth in Exhibit B, attached hereto
and incorporated herein by this reference. Special provisions or conditions relating to the
services to be performed pursuant to this Agreement are set forth in Exhibit "C", Federal
Requirements, consisting of thirty (30) pages, attached hereto and incorporated herein by this
reference.
16
THE NORTH FRONT RANGE TRANSPORTATION
AND AIR QUALITY PLANNING COUNCIL (MPO)
Cliff Davidson, Executive Director
STATE OF COLORADO
COUNTY OF
PROFESSIONAL:
By:
Title:
ss.
The foregoing instrument was subscribed, sworn to and acknowledged before me this
day of , 2005, by [as of .]
My commission expires:
(S E A L)
Notary Public
17
EXHIBIT A
Scope of Services
Introduction
The Scope below defines the tasks involved in completing this work.
Scope of Services
Attached
18
EXHIBIT B
Federal Patent and Rights in Data
37 C.F.R. Part 401,49 C.F.R. Parts 18 and 19
The FTA patent clause is substantially similar to the text of 49 C.F.R. Part 19, Appendix A, § 5,
but the rights in data clause reflects FTA objectives. For patent rights, FTA is governed by
Federal law and regulation. For data rights, the text on copyrights is insufficient to meet FTA's
purposes for awarding research grants. This model clause, with larger rights ,as a standard, is
proposed with the understanding that this standard could be modified to FTA's needs.
CONTRACTS INVOLVING EXPERIMENTAL, DEVELOPMENTAL, OR RESEARCH
WORK.
A. Rights in Data.
(1) The term "subject data" means recorded information, whether or not copyrighted, that is
delivered or specified to be delivered under this Agreement. 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, Professional may not publish or reproduce subject data in
whole or in part, or in any manner or form, nor may Professional authorize others to do so,
without the written consent of the Federal Government, until such time as the Federal
Government may have either released or approved the release of such data to the public; this
restriction on publication, however, does not apply to any contract with an academic institution.
(b) In accordance with 49 C.F.R. 18.34 and 49 C.F.R. 19.36, the Federal Government
reserves a royalty -free, non-exclusive and irrevocable license to reproduce, publish, or otherwise
use, and to authorize others to use, for "Federal Government purposes," any subject data or
copyright described in subsections (2)(b)l and (2)(b)2 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 this Agreement, whether or not a copyright has been
obtained; and
2. Any rights of copyright purchased by Professional using Federal assistance in whole or in
part provided by FTA.
(c) When FTA awards Federal assistance for experimental, developmental, or research work,
it is FTA's general intention to increase transportation knowledge available to the public, rather
than to restrict the benefits resulting from the work to participants in that work. Therefore,
unless FTA determines otherwise, Professional performing experimental, developmental, or
research work required by this Agreement agrees to permit FTA to make available to the public,
19
Collusive or sham proposals: Any proposal deemed to be collusive or a sham proposal will be
rejected and reported to authorities as such. Your authorized signature of this proposal assures
that such proposal is genuine and is not a collusive or sham proposal.
The City of Fort Collins reserves the right to reject any and all proposals and to waive any
irregularities or informalities.
Sincerely,
James B. O'Neill II, CPPO, FNIGP
Director of Purchasing & Risk Management
where renewal is a way of life
either FTA's license in the copyright to any subject data developed in the course of that contract,
or a copy of the subject data first produced under the contract for which a copyright has not been
obtained. If the experimental, developmental, or research work, which is the subject of the
.underlying contract, is not completed for any reason whatsoever, all data developed under that
contract shall become subject data as defined in subsection (a) of this clause and shall be
delivered as the Federal Government may direct. This subsection (c), however, does not apply to
adaptations of automatic data processing equipment or programs for Professional's use whose
costs are financed in -whole or in partwith Federal assistance provided by FTA for transportation
capital projects.
(d) Unless prohibited by state law, upon request by the Federal Government, the MPO and
Professional 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 MPO or
Professional 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 MPO nor Professional 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 herein 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.
(0 Data developed by Professional 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 Professional identifies that data in
writing at the time of delivery of the contract work.
(g) Unless FTA determines otherwise, Professional 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 Professional'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 MPO and Professional 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) Professional 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:
(1) If any invention, improvement, or discovery is conceived or first actually reduced to
practice in the course of or under this Agreement, and that invention, improvement, or
discovery is patentable under the laws of the United States of America or any foreign country,
Professional agrees to take actions necessary to provide immediate notice and a detailed report
to the party at a higher tier until FTA is ultimately notified.
20
(2) Unless the Federal Government later makes a contrary determination in writing,
irrespective of Professional's status (a large business, small business, state government or state
instrumentality, local government, nonprofit organization, institution of higher education,
individual), Professional agrees 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) Professional 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.
21
EXHIBIT C
FEDERAL TRANSIT ADMINISTRATION
BEST PRACTICES PROCUREMENT MANUAL
TABLE. OF CONTENTS (Appendix A - Governing Documents)
A.1 - Federally Required and Other Model Contract Clauses
1. Fly America Requirements
2. Buy America Requirements
3. Energy Conservation Requirements
4. Clean Water Requirements
5. Lobbying
6. Access to Records and Reports
7. Federal Changes
8. Bonding Requirements
9. Clean Air
10. No Government Obligation to Third Parties
11. Program Fraud and False or Fraudulent Statements and Related Acts
12. Termination
13. Government -wide Debarment and Suspension (Nonprocurement)
14. Civil Rights Requirements
15. Breaches and Dispute Resolution
16. Patent and Rights in Data
17. Disadvantaged Business Enterprises (DBE)
18. Incorporation of Federal Transit Administration (FTA) Terms
P#A
1. FLY AMERICA REQUIREMENTS
49 U.S.C. § 40118
41 CFR Part 301-10
Applicability to Contracts
The Fly America requirements apply to the transportation of persons or property, by air, between
a place in the U.S. and a place outside the U.S., or between places outside the U.S., when the
FTA will participate in the costs of such air transportation. Transportation on a foreign air
carrier is permissible when provided by a foreign air carrier under a code share agreement when
the ticket identifies the U.S. air carrier's designator code and flight number. Transportation by a
foreign air carrier is also permissible if there is a bilateral or multilateral air transportation
agreement to which the U.S. Government and a foreign government are parties and which the
Federal DOT has determined meets the requirements of the Fly America Act.
Flow Down Requirements
The Fly America requirements flow down from FTA recipients and subrecipients to first tier
contractors, who are responsible for ensuring that lower tier contractors and subcontractors are in
compliance.
Model Clause/Language
The relevant statutes and regulations do not mandate any specified clause or language. FTA
proposes the following language.
Fly America Requirements
The Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in accordance
with the General Services Administration's regulations at 41 CFR Part 301-10, which provide
that recipients and subrecipients of Federal funds and their contractors are required to use U.S.
Flag air carriers for U.S Government -financed international air travel and transportation of their
personal effects or property, to the extent such service is available, unless travel by foreign air
carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall submit,
if a foreign air carrier was used, an appropriate certification or memorandum adequately
explaining why service by a U.S. flag air carrier was not available or why it was necessary to use
a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly
America requirements. The Contractor agrees to include the requirements of this section in all
subcontracts that may involve international air transportation.
23
2. BUY AMERICA REQUIREMENTS
49 U.S.C. 53230)
49 CFR Part 661
Applicability to Contracts
The Buy America requirements apply to the following types of contracts: Construction Contracts
and Acquisition of Goods or Rolling Stock (valued at more than $100,000).
Flow Down
The Buy America requirements flow down from FTA recipients and subrecipients to first tier
contractors, who are responsible for ensuring that lower tier contractors and subcontractors are in
compliance. The $100,000 threshold applies only to the grantee contract, subcontracts under that
amount are subject to Buy America.
Mandatory Clause/Language
The Buy America regulation, at 49 CFR 661.13, requires notification of the Buy America
requirements in FTA-funded contracts, but does not specify the language to be used. The
following language has been developed by FTA.
Buy America - The contractor agrees to comply with 49 U.S.C. 53230) and 49 C.F.R. Part 661,
which provide that Federal funds may not be obligated unless steel, iron, and manufactured
products used in FTA-funded projects are produced in the United States, unless a waiver has
been granted by FTA or the product is subject to a general waiver. General waivers are listed in
49 C.F.R. 661.7, and include final assembly in the United States for 15 passenger vans and 15
passenger wagons produced by Chrysler Corporation, and microcomputer equipment and
software. Separate requirements for rolling stock are set out at 49 U.S.C. 53230)(2)(C) and 49
C.F.R. 661.11. Rolling stock must be assembled in the United States and have a 60 percent
domestic content.
A bidder or offeror must submit to the FTA recipient the appropriate Buy America certification
(below) with all bids or offers on FTA-funded contracts, except those subject to a general
waiver. Bids or offers that are not accompanied by a completed Buy America certification must
be rejected as nonresponsive. This requirement does not apply to lower tier subcontractors.
Certification requirement for procurement of steel, iron, or manufactured products.
Certificate of Compliance with 49 U.S.C. 53230)(1)
The bidder or offeror hereby certifies that it will meet the requirements of 49 U.S.C. 53230)(1)
and the applicable regulations in 49 C.F.R. Part 661.5.
Date
Signature
Company Name
24
Title
Certificate ofNon-Compliance with 49 U.S.C. 53236)(1)
The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C.
53230)(1) and 49 C.F.R. 661.5, but it may qualify for an exception pursuant to 49 U.S.C.
53230)(2)(A), 53230)(2)(B), or 53230)(2)(D), and 49 C.F.R. 661.7.
Date
Signature.
Company Name
Title
Certification requirement for procurement of buses, other rolling stock and associated
equipment.
Certificate of Compliance with 49 U.S.C. 53230)(2)(C).
The bidder or offeror hereby certifies that it will comply with the requirements of 49 U.S.C.
53230)(2)(C) and the regulations at 49 C.F.R. Part 661.11.
Date
Signature
Company Name
Title
Certificate ofNon-Compliance with 49 U.S.C. 53230)(2)(C)
The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C.
53230)(2)(C) and 49 C.F.R. 661.11, but may qualify for an exception pursuant to 49 U.S.C.
53230)(2)(A), 53230)(2)(B), or 53230)(2)(D), and 49 CFR 661.7.
Date _
Signature
Company Name
Title
25
3. ENERGY CONSERVATION REQUIREMENTS
42 U.S.C. 6321 et seq.
49 CFR Part 18
Applicability to Contracts
The Energy Conservation requirements are applicable to all contracts.
Flow Down
The Energy Conservation requirements extend to all third party contractors and their contracts at
every tier and subrecipients and their subagreements at every tier.
Model Clause/Language
No specific clause is recommended in the regulations because the Energy Conservation
requirements are so dependent on the state energy conservation plan. The following language
has been developed by FTA:
Energy Conservation - The contractor agrees to comply with mandatory standards and policies
relating to. energy efficiency which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act:
4. CLEAN WATER REOUIREMENTS
33 U.S.C. 1251
Applicability to Contracts
The Clean Water requirements apply to each contract and subcontract which exceeds $100,000.
Flow Down
The Clean Water requirements flow down to FTA recipients and subrecipients at every tier.
Model Clause/Language
While no mandatory clause is contained in the Federal Water Pollution Control Act, as amended,
the following language developed by FTA contains all the mandatory requirements:
Clean Water - (1) The Contractor agrees to comply with all applicable standards, orders or
regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C.
1251 et seq. The Contractor agrees to report each violation to the Purchaser and understands and
agrees that the Purchaser will, in turn, report each violation as required to assure notification to
FTA and the appropriate EPA Regional Office.
(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.
26
5. LOBBYING
31 U.S.C. 1352
49 CFR Part 19
49 CFR Part 20
Applicability to Contracts
The Lobbying requirements apply to Construction/Architectural and Engineering/Acquisition of
Rolling Stock/Professional Service Contract/Operational Service Contract/Turnkey contracts.
Flow Down
The Lobbying requirements mandate the maximum flow down, pursuant to Byrd Anti -Lobbying
Amendment, 31 U.S.C. § 1352(b)(5) and 49 C.F.R. Part 19, Appendix A, Section 7.
Mandatory Clause/Lan2ua2e
Clause and specific language therein are mandated by 49 CFR Part 19, Appendix A.
Modifications have been made to the Clause pursuant to Section 10 of the Lobbying Disclosure
Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.]
- Lobbying Certification and Disclosure of Lobbying Activities for third party contractors are
mandated by 31 U.S.C. 1352(b)(5), as amended by Section 10 of the Lobbying Disclosure Act of
1995, and DOT implementing regulation, "New Restrictions on Lobbying," at 49 CFR §
20.110(d)
- Language in Lobbying Certification is mandated by 49 CFR Part 19, Appendix A, Section 7,
which provides that contractors file the certification required by 49 CFR Part 20, Appendix A.
Modifications have been made to the Lobbying Certification pursuant to Section 10 of the
Lobbying Disclosure Act of 1995.
- Use of "Disclosure of Lobbying Activities," Standard Form-LLL set forth in Appendix B of 49
CFR Part 20, as amended by "Government wide Guidance For New Restrictions on Lobbying,"
61 Fed. Reg. 1413 (1/19/96) is mandated by 49 CFR Part 20, Appendix A.
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
27
contacts on its behalf with non -Federal funds with respect to that Federal contract, grant or award
covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient.
APPENDIX A, 49 CFR PART 20--CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements
(To be submitted with each bid or offer exceeding $100,000)
The undersigned [Contractor] certifies,, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or employee of
an agency, a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with the awarding of any Federal contract, the making of any
Federal grant, the making of any Federal loan, the entering into of any cooperative agreement,
and the extension, continuation, renewal, amendment, or modification of any Federal contract,
grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any
person for making lobbying contacts to an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of Congress in
connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned
shall complete and submit Standard Form--LLL, "Disclosure Form to Report Lobbying," in
accordance with its instructions [as amended by "Government wide Guidance for New
Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96). Note: Language in paragraph (2)
herein has been modified in accordance with Section 10 of the Lobbying Disclosure Act of 1995
(P.L. 104-65, to be codified at 2 U.S.C. 1601, et seq.)]
(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.]
28
The Contractor, , certifies or affirms the truthfulness and accuracy of
each statement of its certification and disclosure, if any. In addition, the Contractor understands
and agrees that the provisions of 31 U.S.C. A 3801, et seq., apply to this certification and
disclosure, if any.
Signature of Contractor's Authorized Official
Name and Title of Contractor's Authorized Official
Date
6. ACCESS TO RECORDS AND REPORTS
49 U.S.C. 5325
18 CFR 18.36 (i)
49 CFR 633.17
Applicability to Contracts
Reference Chart "Requirements for Access to Records and Reports by Type of Contracts"
Flow Down
FTA does not require the inclusion of these requirements in subcontracts.
Model Clause/Lan2ua2e
The specified language is not mandated by the statutes or regulations referenced, but the
language provided paraphrases the statutory or regulatory language.
Access to Records - The following access to records requirements apply to this Contract:
1. Where the Purchaser is not a State but a local government and is the FTA Recipient or a
subgrantee of the FTA Recipient in accordance with 49 C.F.R. 18.36(1), the Contractor agrees to
provide the Purchaser, the FTA Administrator, the Comptroller General of the United States or
any of their authorized representatives access to any books, documents, papers and records of the
Contractor which are directly pertinent to this contract for the purposes of making audits,
examinations, excerpts and. transcriptions. Contractor also agrees, pursuant to 49 C.F.R. 633.17
to provide the FTA Administrator or his authorized representatives including any PMO
Contractor access to Contractor's records and construction sites pertaining to a major capital
project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the
programs described at 49 U.S.C. 5307, 5309 or 5311.
2. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA Recipient
in accordance with 49 C.F.R. 633.17, Contractor agrees to provide the Purchaser, the FTA
Administrator or his authorized representatives, including any PMO Contractor, access to the
Contractor's records and construction sites pertaining to a major capital project, defined at 49
U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described
at 49 U.S.C. 5307, 5309 or 5311. By definition, a major capital project excludes contracts of less
than the simplified acquisition threshold currently set at $100,000.
29
Non -Specific Work Order
Request for Proposal
Introduction:
The North Front Range Metropolitan Planning Organization (NFRMPO) is an organization of
fifteen local governments that is responsible for long range transportation planning in the North
Front Range. Members of the MPO are Fort Collins, Greeley, Loveland, Timnath, Berthoud,
Windsor, Johnstown, Milliken, Evans, Garden City, LaSalle, Evans, Severance and Weld and
Larimer Counties. The Colorado Department of Transportation (CDOT) and the State Air
Quality Control Commission (AQCC) are also members. The NFRMPO works on a regional
scale that covers approximately 600 square miles, and is responsible for regional transportation
planning.
General Information:
This Request for Proposal is to select up to two firms and to enter into a non-specific work order
with the NFRMPO to perform planning/engineering type tasks and related work. The timing and
schedule of these services will be based upon the NFRMPO needs.
Services intended to be included in one or more Professional Services Agreement(s). The types
of work ordered may include, but are not necessarily limited to:
• Corridor studies
• Regional transportation plan
• Concept and design studies
• Event, meeting, and presentation supporting documentation creation
Evaluation & Award: It is the intent of the NFRMPO to select a Professional consulting firm
and to enter into a Professional Services Agreement to provide the services described herein. A
NFRMPO review team will rank the proposals based on the NFRMPOs' procedures for the
review of professional firms.
The highest -ranked Professionals will then be invited to make formal oral presentations to the
review team. Based on these interviews, a professional consulting firm will be retained to
provide these services, as the need for work is generated.
The Professional Services Agreement will be in full force and effect for one year. At the option
of the NFRMPO, the Professional Services Agreement may be extended for up to four (4)
additional one-year terms.
Increases in the Fee Schedule may be negotiated for subsequent renewal of the third, fourth, and
fifth additional one-year periods. Price changes in the Fee Schedule will be negotiated by and
agreed to by both parties.
3. Where the Purchaser enters into a negotiated contract for other than a small purchase or under
the simplified acquisition threshold and is an institution of higher education, a hospital or other
non-profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient in
accordance with 49 C.F.R. 19.48, Contractor agrees to provide the Purchaser, FTA
Administrator, the Comptroller General of the United States or any of their duly authorized
representatives with access to any books, documents, papers and record of the Contractor which
are directly pertinent to this contract for the purposes of making audits, examinations, excerpts
and transcriptions.
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(1)(11).
7. FTA does not require the inclusion of these requirements in subcontracts.
Requirements for Access to Records and Reports by Types of Contract
Contract
Characteris
tics
Operatio
nal
Service
Contract
Turnkey
Constructi
on
Architectu
ral
Engineerin
g
' Acquisitio .
n of
Rolling
Stock,
Profession
al Services
I State
Grantees
None
Those
None
None
None
None
imposed on
a. Contracts
state pass
below SAT
None
thru to
Yes, if
None
None
None
($100,000)
unless'
Contractor
non-
unless
unless
unless
non-
competitiv
non-
non-
non-
b. Contracts
competiti
e award or
competitiv
competitiv
competitiv
above
ve award
if funded
e award
e award
e award
$100,000/Ca
1
1 1
1
1 thru'
30
pital Projects
5307/5309
/5311
II Non State
Grantees
Those
Yes
imposed on
Yes
Yes
Yes
Yes
a. Contracts
non -state
below SAT
Yes
Grantee
Yes
Yes
Yes
Yes
($100,000)
pass thru to
b. Contracts
Contractor
above
$100,000/Ca
pital Projects
Sources of Authority:
49 USC 5325 (a)
Z 49 CFR 633.17
3 18 CFR 18.36 (i)
7. FEDERAL CHANGES
49 CFR Part 18
Applicability to Contracts
The Federal Changes requirement applies to all contracts.
Flow Down
The Federal Changes requirement flows down appropriately to each applicable changed
requirement.
Model Clause/Language
No specific language is mandated. The following language has been developed by FTA.
Federal Changes - Contractor shall at all times comply with all applicable FTA regulations,
policies, procedures and directives, including without limitation those listed directly or by
reference in the Master Agreement between Purchaser and FTA, as they may be amended or
promulgated from time to time during the term of this contract. Contractor's failure to so comply
shall constitute a material breach of this contract.
8. BONDING REQUIREMENTS
Applicability to Contracts
For those construction or facility improvement contracts or subcontracts exceeding
$100,000, FTA may accept the bonding policy and requirements of the recipient,
provided that they meet the minimum requirements for construction contracts as
follows:
31
a. A bid guarantee from each bidder equivalent to five (5) percent of the bid price. The "bid
guarantees" shall consist of a firm commitment such as a bid bond, certifies check, or other
negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of
his bid, execute such contractual documents as may be required within the time specified.
b. A performance bond on the part to the Contractor for 100 percent of the contract price. A
"performance bond" is one executed in connection with a contract to secure fulfillment of all the
contractor's obligations under such contract.
c. A payment bond on the part of the contractor for 100 percent of the contract price. A
"payment bond" is one executed in connection with a contract to assure payment, as required by
law, of all persons supplying labor and material in the execution of the work provided for in the
contract. Payment bond amounts required from Contractors are as follows:
(1) 50% of the contract price if the contract price is not more than $1 million;
(2) 40% of the contract price if the contract price is more than $1 million but not more than $5
million; or
(3) $2.5 million if the contract price is more than $5 million.
d. A cash deposit, certified check or other negotiable instrument may be accepted by a grantee in
lieu of performance and payment bonds, provided the grantee has established a procedure to
assure that the interest of FTA is adequately protected. An irrevocable letter of credit would also
satisfy the requirement for a bond.
Flow Down
Bonding requirements flow down to the first tier contractors.
Model Clauses/Language
FTA does not prescribe specific wording to be included in third party contracts. FTA has
prepared sample clauses as follows:
Bid Bond Requirements (Construction)
(a) Bid Security
A Bid Bond must be issued by a fully qualified surety company acceptable to (Recipient) and
listed as a company currently authorized under 31 CFR, Part 223 as possessing a Certificate of
Authority as described thereunder.
(b) Rights Reserved
In submitting this Bid, it is understood and agreed by bidder that the right is reserved by
(Recipient) to reject any and all bids, or part of any bid, and it is agreed that the Bid may not be
32
withdrawn for a period of [ninety (90)] days subsequent to the opening of bids, without the
written consent of (Recipient).
It is also understood and agreed that if the undersigned bidder should withdraw any part or all of
his bid within. [ninety (90)] days after the bid opening without the written consent of (Recipient),
shall refuse or be unable to enter into this Contract, as provided above, or refuse or be unable to
furnish adequate and acceptable Performance Bonds and Labor and Material Payments Bonds, as
provided above, or refuse or be unable to furnish adequate and acceptable insurance, as provided
above, he shall forfeit his bid security to the extent of (Recipient's) damages occasioned by such
withdrawal, or refusal, or inability to enter into an agreement, or provide adequate security
therefor.
It is further understood and agreed that to the extent the defaulting bidder's Bid Bond, Certified
Check, Cashier's Check, Treasurer's Check, and/or Official Bank Check (excluding any income
generated thereby which has been retained by (Recipient) as provided in [Item x "Bid Security"
of the Instructions to Bidders]) shall prove inadequate to fully recompense (Recipient) for the
damages occasioned by default, then the undersigned bidder agrees to indemnify (Recipient) and
pay over to (Recipient) the difference between the bid security and (Recipient's) total damages,
so as to make (Recipient) whole.
The undersigned understands that any material alteration of any of the above or any of the
material contained on this form, other than that requested, will render the bid unresponsive.
Performance and Payment Bonding Requirements (Construction)
The Contractor shall be required to obtain performance and payment bonds as follows:
(a) Performance bonds
1. The penal amount of performance bonds shall be 100 percent of the original contract price,
unless the (Recipient) determines that a lesser amount would be adequate for the protection of
the (Recipient).
2. The (Recipient) may require additional performance bond protection when a contract price is
increased. The increase in protection shall generally equal 100 percent of the increase in contract
price. The (Recipient) may secure additional protection by directing the Contractor to increase
the penal amount of the existing bond or to obtain an additional bond.
(b) Payment bonds
1. The penal amount of the payment bonds shall equal:
(i) Fifty percent of the contract price if the contract price is not more than $1 million.
(ii) Forty percent of the contract price if the contract price is more than $1 million but not more
than $5 million; or
33
Two and one half million if the contract price is more than $5 million.
2.1 If the original contract price is $5 million or less, the (Recipient) may require additional
protection as required by subparagraph 1 if the contract price is increased.
ce and Payment Bonding Requirements (Non -Construction)
Contractor may be required to obtain performance and payment bonds when necessary to
;ct the (Recipient's) interest.
(a) The following situations may warrant a performance bond:
1. (Recipient) property or funds are to be provided to the contractor for use in performing the
;ontract or as partial compensation (as in retention of salvaged material).
2. A contractor sells assets to or merges with another concern, and the (Recipient), after
recognizing the latter concern as the successor in interest, desires assurance that it is financially
capable.
3.1 Substantial progress payments are made before delivery of end items starts.
4.1 Contracts are for dismantling, demolition, or removal of improvements.
(b) When it is determined that a performance bond is required, the Contractor shall be required to
obtain performance bonds as follows:
1.1 The penal amount of performance bonds shall be 100 percent of the original contract price,
unless the (Recipient) determines that a lesser amount would be adequate for the protection of
the (Recipient).
2. The (Recipient) may require additional performance bond protection when a contract price is
increased. The increase in protection shall generally equal 100 percent of the increase in contract
price. The (Recipient) may secure additional protection by directing the Contractor to increase
the penal amount of the existing bond or to obtain an additional bond.
(c) A payment bond is required only when a performance bond is required, and if the use of
payment bond is in the (Recipient's) interest.
When it is determined that a payment bond is required, the Contractor shall be required to
ain payment bonds as follows:
The penal amount of payment bonds shall equal:
Fifty percent of the contract price if the contract price is not more than $1 million;
34
(ii) Forty percent of the contract price if the contract price is more than $1 million but not more
than $5 million; or
(iii) Two and one half million if the contract price is increased.
Advance Payment Bonding Requirements
The Contractor may be required to obtain an advance payment bond if the contract contains an
advance payment provision and a performance bond is not furnished. The (recipient) shall
determine the amount of the advance payment bond necessary to protect the (Recipient).
Patent Infringement Bonding Requirements (Patent Indemnity)
The Contractor may be required to obtain a patent indemnity bond if a performance bond is not
furnished and the financial responsibility of the Contractor is unknown or doubtful. The
(recipient) shall determine the amount of the patent indemnity to protect the (Recipient).
Warranty of the Work and Maintenance Bonds
1. The Contractor warrants to (Recipient), the Architect and/or Engineer that all materials and
equipment furnished under this Contract will be of highest quality and new unless otherwise
specified by (Recipient), free from faults and defects and in conformance with the Contract
Documents. All work not so conforming to these standards shall be considered defective. If
required by the [Project Manager], the Contractor shall furnish satisfactory evidence as to the
kind and quality of materials and equipment.
2. The Work furnished must be of first quality and the workmanship must be the best obtainable
in the various trades. The Work must be of safe, substantial and durable construction in all
respects. The Contractor hereby guarantees the Work against defective materials or faulty
workmanship for a minimum period of one (1) year after Final Payment by (Recipient) and shall
replace or repair any defective materials or equipment or faulty workmanship during the period
of the guarantee at no cost to (Recipient). As additional security for these guarantees, the
Contractor shall, prior to the release of Final Payment [as provided in Item X below], furnish
separate Maintenance (or Guarantee) Bonds in form acceptable to (Recipient) written by the
same corporate surety that provides the Performance Bond and Labor and Material Payment
Bond for this Contract. These bonds shall secure the Contractor's obligation to replace or repair
defective materials and faulty workmanship for a minimum period of one (1) year after Final
Payment and shall be written in an amount equal to ONE HUNDRED PERCENT (100%) of the
CONTRACT SUM, as adjusted (if at all).
35
9. CLEAN AIR
42 U.S.C. 7401 et seq
40 CFR 15.61
49 CFR Part 18
Clean Air requirements apply to all contracts exceeding $100,000, including indefinite
itities where the amount is expected to exceed $100,000 in any year.
Clean Air requirements flow down to all subcontracts which exceed $100,000.
Model Clauses/Language
No specific language is required. FTA has proposed the following language.
Clean Air - (1) The Contractor agrees to comply with all applicable standards, orders or
regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et 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
$1!00,000 financed in whole or in part with Federal assistance provided by FTA.
10. NO GOVERNMENT OBLIGATION TO THIRD PARTIES
Abplicability to Contracts
Applicable to all contracts.
Flow Down
Not required by statute or regulation for either primary contractors or subcontractors, this
concept should flow down to all levels to clarify, to all parties to the contract, that the Federal
Government does not have contractual liability to third parties, absent specific written consent.
Model Clause/Language
no specific language is required, FTA has developed the following language.
No Obligation by the Federal Government.
(11) 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,
alisent the express written consent by the Federal Government, the Federal Government is not a
36
party to this contract and shall not be subject to any obligations or liabilities to the Purchaser,
Contractor, or any other party (whether or not a party to that contract) pertaining to any matter
resulting from the underlying contract.
(2) The Contractor agrees to include the above clause in each subcontract financed in whole or in
part with Federal assistance provided by FTA. It is further agreed that the clause shall not be
modified, except to identify the subcontractor who will be subject to its provisions.
11. 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
Applicability to Contracts
These requirements are applicable to all contracts.
Flow Down
These requirements flow down to contractors and subcontractors who make, present, or submit
covered claims and statements.
Model Clause/Language
These requirements have no specified language, so FTA proffers the following language.
Program Fraud and False or Fraudulent Statements or Related Acts.
(1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act
of 1986, as amended, 31 U.S.C. § 3801 et sue. 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.
37
(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.
12. TERMINATION
49 U.S.C. Part 18
FTA Circular 4220.1E
Applicability to Contracts
All contracts (with the exception of contracts with nonprofit organizations and institutions of
higher education,) in excess of $10,000 shall contain suitable provisions for termination by the
grantee including the manner by which it will be effected and the basis for settlement. (For
contracts with nonprofit organizations and institutions of higher education the threshold is
$1�00,000.) In addition, such contracts shall describe conditions under which the contract may be
terminated for default as well as conditions where the contract may be terminated because of
circumstances beyond the control of the contractor.
e termination requirements flow down to all contracts in excess of $10,000, with the exception
contracts with nonprofit organizations and institutions of higher learning.
FTA does not prescribe the form or content of such clauses. The following are suggestions of
clauses to be used in different types of contracts:
a. Termination for Convenience (General Provision) The (Recipient) may terminate this
contract, in whole or in part, at any time by written notice to the Contractor when it is in the
Government's best interest. The Contractor shall be paid its costs, including contract close-out
costs, and profit on work performed up to the time of termination. The Contractor shall promptly
submit its termination claim to (Recipient) to be paid the Contractor. If the Contractor has any
property in its possession belonging to the (Recipient), the Contractor will account for the same,
and dispose of it in the manner the (Recipient) directs.
Termination for Default [Breach or Cause] (General Provision) If the Contractor does not
iver supplies in accordance with the contract delivery schedule, or, if the contract is for
vices, the Contractor fails to perform in the manner called for in the contract, or if the
atractor fails to comply with any other provisions of the contract, the (Recipient) may
rimate this contract for default. Termination shall be effected by serving a notice of
nination on the contractor setting forth the manner in which the Contractor is in default. The
Ltractor will only be paid the contract price for supplies delivered and accepted, or services
formed in accordance with the manner of performance set forth in the contract.
t is later determined by the (Recipient) that the Contractor had an excusable reason for not
forming, such as a strike, fire, or flood, events which are not the fault of or are beyond the
itrol of the Contractor, the (Recipient), after setting up a new delivery of performance
38
schedule, may allow the Contractor to continue work, or treat the termination as a termination for
convenience.
c. Opportunity to Cure (General Provision) The (Recipient) in its sole discretion may, in the
case of a termination for breach or default, allow the Contractor [an appropriately short period of
time] in which to cure the defect. In such case, the notice of termination will state the time
period in which cure is permitted and other appropriate conditions
If Contractor fails to remedy to (Recipient)'s satisfaction the breach or default of any of the
terms, covenants, or conditions of this Contract within [ten (10) days] after receipt by Contractor
of written notice from (Recipient) setting forth the nature of said breach or default, (Recipient)
shall have the right to terminate the Contract without any further obligation to Contractor. Any
such termination for default shall not in any way operate to preclude (Recipient) from also
pursuing all available remedies against Contractor and its sureties for said breach or default.
d. Waiver of Remedies for any Breach In the event that (Recipient) elects to waive its
remedies for any breach by Contractor of any covenant, term or condition of this Contract, such
waiver by (Recipient) shall not limit (Recipient)'s remedies for any succeeding breach of that or
of any other term, covenant, or condition of this Contract.
e. Termination for Convenience (Professional or Transit Service Contracts) The
(Recipient), by written notice, may terminate this contract, in whole or in part, when it is in the
Government's interest. If this contract is terminated, the Recipient shall be liable only for
payment under the payment provisions of this contract for services rendered before the effective
date of termination.
f. Termination for Default (Supplies and Service) If the Contractor fails to deliver supplies or
to perform the services within the time specified in this contract or any extension or if the
Contractor fails to comply with any other provisions of this contract, the (Recipient) may
terminate this contract for default. The (Recipient) shall terminate by delivering to the
Contractor a Notice of Termination specifying the nature of the default. The Contractor will
only be paid the contract price for supplies delivered and accepted, or services performed in
accordance with the manner or performance set forth in this contract.
If, after termination for failure to fulfill contract obligations, it is determined that the Contractor
was not in default, the rights and obligations of the parties shall be the same as if the termination
had been issued for the convenience of the Recipient.
g. Termination for Default (Transportation Services) If the Contractor fails to pick up the
commodities or to perform the services, including delivery services, within the time specified in
this contract or any extension or if the Contractor fails to comply with any other provisions of
this contract, the (Recipient) may terminate this contract for default. The (Recipient) shall
terminate by delivering to the Contractor a Notice of Termination specifying the nature of
default. The Contractor will only be paid the contract price for services performed in accordance
with the manner of performance set forth in this contract.
39
Work Order Procedures: Work performed pursuant to the Professional Services Agreement
will be authorized by Work Order. No Work Order shall exceed $150,000. The NFRMPO
reserves the right to seek independent or separate proposals on any project, rather than issuing a
Work Order to the Professional. The only work authorized under the Professional Services
Agreement is that which is performed after receipt of such Work Orders. The NFRMPO makes
no guarantee as to the number of work orders or actual amount of services which will in fact be
requested.
Background:
The NFRMPO is responsible for long range transportation planning activities throughout
northern Colorado. The planning activities for which this non-specific work order is being issued
are those not currently available at the MPO due to lack of expertise or limited resources. The
time involved to negotiate contracts and requests for proposal individually is so extensive that
the MPO is seeking to hire a firm on a Work Order contract. Services such as those identified
below will be requested on an as needed basis.
Potential Service Categories:
Responders should be capable of providing some or all of the services listed below. When
appropriate, firms and/or individuals are encouraged to form teams to afford the highest level of
expertise and capabilities. The firm with which the contract is signed will be the `prime' and will
be responsible for performance, sub -contractor management, and work identified in a given task
order.
The categories of services are listed below. The magnitude and effort required for specific work
tasks may vary from work order to work order.
Major Service Categories:
• Transportation and Land Use Planning
• Development of Regional Transportation Plans
• Development of Transportation Improvement Programs
• Land use/transportation/air quality relationships
• . Livability and sustainability
• Travel demand forecasting
• Demographic projections and analysis
• Multi modal assessments
• Project cost estimation
• Project prioritization methods and techniques
If this contract is terminated while the Contractor has possession of Recipient goods, the
Contractor shall, upon direction of the (Recipient), protect and preserve the goods until
surrendered to the Recipient or its agent. The Contractor and (Recipient) shall agree on payment
for the. preservation and protection of goods. Failure to agree on an amount will be resolved
under the Dispute clause.
If, after termination for failure to fulfill contract obligations, it is determined that the Contractor
was not in default, the rights and obligations of the parties shall be the same as if the termination
had been issued for the convenience of the (Recipient).
h. Termination for Default (Construction) If the Contractor refuses or fails to prosecute the
work or any separable part, with the diligence that will insure its completion within the time
specified in this contract or any extension or fails to complete the work within this time, or if the
Contractor fails to comply with any other provisions of this contract, the (Recipient) may
terminate this contract for default. The (Recipient) shall terminate by delivering to the
Contractor a Notice of Termination specifying the nature of the default. In this event, the
Recipient may take over the work and compete it by contract or otherwise, and may take
possession of and use any materials, appliances, and plant on the work site necessary for
completing the work. The Contractor and its sureties shall be liable for any damage to the
Recipient resulting from the Contractor's refusal or failure to complete the work within specified
time, whether or not the Contractor's right to proceed with the work is terminated. This liability
includes any increased costs incurred by the Recipient in completing the work.
The Contractor's right to proceed shall not be terminated nor the Contractor charged with
damages under this clause if-
1. the delay in completing the work arises from unforeseeable causes beyond the control and
without the fault or negligence of the Contractor. Examples of such causes include: acts of God,
acts of the Recipient, acts of another Contractor in the performance of a contract with the
Recipient, epidemics, quarantine restrictions, strikes, freight embargoes; and
2. the contractor, within [10] days from the beginning of any delay, notifies the (Recipient) in
writing of the causes of delay. If in the judgment of the (Recipient), the delay is excusable, the
time for completing the work shall be extended. The judgment of the (Recipient) shall be final
and conclusive on the parties, but subject to appeal under the Disputes clauses.
If, after termination of the Contractor's right to proceed, it is determined that the Contractor was
not in default, or that the delay was excusable, the rights and obligations of the parties will be the
same as if the termination had been issued for the convenience of the Recipient.
i. Termination for Convenience or Default (Architect and Engineering) The (Recipient)
may terminate this contract in whole or in part, for the Recipient's convenience or because of the
failure of the Contractor to fulfill the contract obligations. The (Recipient) shall terminate by
delivering to the Contractor a Notice of Termination specifying the nature, extent, and effective
date of the termination. Upon receipt of the notice, the Contractor shall (1) immediately
discontinue all services affected (unless the notice directs otherwise), and (2) deliver to the
40
Contracting Officer all data, drawings, specifications, reports, estimates, summaries, and other
information and materials accumulated in performing this contract, whether completed or in
process.
If the termination is for the convenience of the Recipient, the Contracting Officer shall make an
equitable adjustment in the contract price but shall allow no anticipated profit on unperformed
services.
If the termination is for failure of the Contractor to fulfill the contract obligations, the Recipient
may complete the work by contact or otherwise and the Contractor shall be liable for any
additional cost incurred by the Recipient.
If, after termination for failure to fulfill contract obligations, it is determined that the Contractor
was not in default, the rights and obligations of the parties shall be the same as if the termination
had been issued for the convenience of the Recipient.
j. Termination for Convenience of Default (Cost -Type Contracts) The (Recipient) may
terminate this contract, or any portion of it, by serving a notice or termination on the Contractor.
The notice shall state whether the termination is for convenience of the (Recipient) or for the
default of the Contractor. If the termination is for default, the notice shall state the manner in
which the contractor has failed to perform the requirements of the contract. The Contractor shall
account for any property in its possession paid for from funds received from the (Recipient), or
property supplied to the Contractor by the (Recipient). If the termination is for default, the
(Recipient) may fix the fee, if the contract provides for a fee, to be paid the contractor in
proportion to the value, if any, of work performed up to the time of termination. The Contractor
shall promptly submit its termination claim to the (Recipient) and the parties shall negotiate the
termination settlement to be paid the Contractor.
If the termination is for the convenience of the (Recipient), the Contractor shall be paid its
contract close-out costs, and a fee, if the contract provided for payment of a fee, in proportion to
the work performed up to the time of termination.
If, after serving a notice of termination for default, the (Recipient) determines that the Contractor
has an excusable reason for not performing, such as strike, fire, flood, events which are not the
fault of and are beyond the control of the contractor, the (Recipient), after setting up a new work
schedule, may allow the Contractor to continue work, or treat the termination as a termination for
convenience.
13. GOVERNMENT -WIDE DEBARMENT AND SUSPENSION
(NONPROCUREMENT)
Background and Applicability
In conjunction with the Office of Management and Budget and other affected Federal agencies,
DOT published an update to 49 CFR Part 29 on November 26, 2003. This government -wide
regulation implements Executive Order 12549, Debarment and Suspension, Executive Order
41
12689, Debarment and Suspension, and 31 U.S.C. 6101 note (Section 2455, Public Law 103-
355, 108 Stat. 3327).
The provisions of Part 29 apply to all grantee contracts and subcontracts at any level expected to
equal or exceed $25,000 as well as any contract or subcontract (at any level) for Federally
required auditing services. 49 CFR 29.220(b). This represents a change from prior practice in
that the dollar threshold for application of these rules has been lowered from $100,000 to
$25,000. These are contracts and subcontracts referred to in the regulation as "covered
transactions."
Grantees, contractors, and subcontractors (at any level) that enter into covered transactions are
required to verify that the entity (as well as its principals and affiliates) they propose to contract
or subcontract with is not excluded or disqualified. They do this by (a) Checking the Excluded
Parties List System, (b) Collecting a certification from that person, or (c) Adding a clause or
condition to the contract or subcontract. This represents a change from prior practice in that
certification is still acceptable but is no longer required. 49 CFR 29.300.
Grantees, contractors, and subcontractors who enter into covered transactions also must require
the entities they contract with to comply with 49 CFR 29, subpart C and include this requirement
in their own subsequent covered transactions (i.e., the requirement flows down to subcontracts at
all levels).
Clause Language
The following clause language is suggested, not mandatory. It incorporates the optional method
of verifying that contractors are not excluded or disqualified by certification.
Suspension and Debarment
This contract is a covered transaction for purposes of 49 CFR Part 29. As such,
the contractor is required to verify that none of the contractor, its principals, as
defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded
or disqualified as defined at 49 CFR 29.940 and 29.945.
The contractor is required to comply with 49 CFR 29, Subpart C and must include
the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered
transaction it enters into.
By signing and submitting its bid or proposal, the bidder or proposer certifies as
follows:
The certification in this clause is a material representation of fact relied upon by
(insert agency name). If it is later determined that the bidder or proposer
knowingly rendered an erroneous certification, in addition to remedies available
to {insert agency name}, the Federal Government may pursue available
remedies, including but not limited to suspension and/or debarment. The bidder
or proposer agrees to comply with the requirements of 49 CFR 29, Subpart C
while this offer is valid and throughout the period of any contract that may arise
42
from this offer. The bidder or proposer further agrees to include a provision
requiring such compliance in its lower tier covered transactions.
14. 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.
Applicability to Contracts
The Civil Rights Requirements apply to all contracts.
Flow Down
The Civil Rights requirements flow down to all third party contractors and their contracts at
every tier.
Model Clause/Language
The following clause was predicated on language contained at 49 CFR Part 19, Appendix A, but
FTA has shortened the lengthy text.
Civil Rights - The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42
U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. §
6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and
Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against
any employee or applicant for employment because of race, color, creed, national origin, sex,
age, or disability. In addition, the Contractor agrees to comply with applicable Federal
implementing regulations and other implementing requirements FTA may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity requirements
apply to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights
Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332•, the Contractor
agrees to comply with all applicable equal employment opportunity requirements of U.S.
Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance
Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et sec ..
(which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended
by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal
Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes,
executive orders, regulations, and Federal policies that may in the future affect construction
activities undertaken in the course of the Project. The Contractor agrees to take affirmative
action to ensure that applicants are employed, and that employees are treated during
43
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.
15. BREACHES AND DISPUTE RESOLUTION
49 CFR Part 18
FTA Circular 4220.1E
Applicability to Contracts
All contracts in excess of $100,000 shall contain provisions or conditions which will allow for
administrative, contractual, or legal remedies in instances where contractors violate or breach
contract terms, and provide for such sanctions and penalties as may be appropriate. This may
include provisions for bonding, penalties for late or inadequate performance, retained earnings,
liquidated damages or other appropriate measures.
Flow Down
The Breaches and Dispute Resolutions requirements flow down to all tiers.
Model Clauses/Language
FTA does not prescribe the form or content of such provisions. What provisions are developed
will depend on the circumstances and the type of contract. Recipients should consult legal
counsel in developing appropriate clauses. The following clauses are examples of provisions
from various FTA third party contracts.
Disputes - Disputes arising in the performance of this Contract which are not resolved by
agreement of the parties shall be decided in writing by the authorized representative of
44
(Recipient)'s [title of employee]. This decision shall be final and conclusive unless within [ten
(10)] days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a
written appeal to the [title of employee]. In connection with any such appeal, the Contractor
shall be afforded an opportunity to be heard and to offer evidence in support of its position. The
decision of the [title of employee] shall be binding upon the Contractor and the Contractor shall
abide be the decision.
Performance During Dispute - Unless otherwise directed by (Recipient), Contractor shall
continue performance under this Contract while matters in dispute are being resolved.
Claims for Damages - Should either party to the Contract suffer injury or damage to person or
property because of any act or omission of the party or of any of his employees, agents or others
for whose acts he is legally liable, a claim for damages therefor shall be made in writing to such
other party within a reasonable time after the first observance of such injury of damage.
Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other
matters in question between the (Recipient) and the Contractor arising out of or relating to this
agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court
of competent jurisdiction within the State in which the (Recipient) is located.
Rights and Remedies - The duties and obligations imposed by the Contract Documents and the
rights and remedies available thereunder shall be in addition to and not a limitation of any duties,
obligations, rights and remedies otherwise imposed or available by law. No action or failure to
act by the (Recipient), (Architect) or Contractor shall constitute a waiver of any right or duty
afforded any of them under the Contract, nor shall any such action or failure to act constitute an
approval of or acquiescence in any breach thereunder, except as may be specifically agreed in
writing.
16. PATENT AND RIGHTS IN DATA
37 CFR Part 401
49 CFR Parts 18 and 19
Applicability to Contracts
Patent and rights in data requirements for federally assisted projects ONLY apply to research
projects in which FTA finances the purpose of the grant is to finance the development of a
product or information. These patent and data rights requirements do not apply to capital
projects or operating projects, even though a small portion of the sales price may cover the cost
of product development or writing the user's manual.
Flow Down
The Patent and Rights in Data requirements apply to all contractors and their contracts at every
tier.
Model Clause/Language
The FTA patent clause is substantially similar to the text of 49 C.F.R. Part 19, Appendix A,
45
Section 5, but the rights in data clause reflects FTA objectives. For patent rights, FTA is
governed by Federal law and regulation. For data rights, the text on copyrights is insufficient to
meet FTA's purposes for awarding research grants. This model clause, with larger rights as a
standard, is proposed with the understanding that this standard could be modified to ETA'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)1 and (2)(b)2 of this clause below. As used in the
previous sentence, "for Federal Government purposes," means use only for the direct purposes of
the Federal Government. Without the copyright owner's consent, the Federal Government may
not extend its Federal license to any other party.
1. Any subject data developed under that contract, whether or not a copyright has been obtained;
and
2. Any rights of copyright purchased by the Purchaser or Contractor using Federal assistance in
whole or in part provided by FTA.
46
(c) When FTA awards Federal assistance for experimental, developmental, or research work, it is
FTA's general intention to increase transportation knowledge available to the public, rather than
to restrict the benefits resulting from the work to participants in that work. Therefore, unless
FTA determines otherwise, the Purchaser and the Contractor performing experimental,
developmental, or research work required by the underlying contract to which this Attachment is
added agrees to permit FTA to make available to the public, either FTA's license in the copyright
to any subject data developed in the course of that contract, or a copy of the subject data first
produced under the contract for which a copyright has not been obtained. If the experimental,
developmental, or research work, which is the subject of the underlying contract, is not
completed for any reason whatsoever, all data developed under that contract shall become
subject data as defined in subsection (a) of this clause and shall be delivered as the Federal
Government may direct. This subsection (c) , however, does not apply to adaptations of
automatic data processing equipment or programs for the Purchaser or Contractor's use whose
costs are financed in whole or in part with Federal assistance provided by FTA for transportation
capital projects.
(d) Unless prohibited by state law, upon request by the Federal Government, the Purchaser and
the Contractor agree to indemnify, save, and hold harmless the Federal Government, its officers,
agents, and employees acting within the scope of their official duties against any liability,
including costs and expenses, resulting from any willful or intentional violation by the Purchaser
or Contractor of proprietary rights, copyrights, or right of privacy, arising out of the publication,
translation, reproduction, delivery, use, or disposition of any data furnished under that contract.
Neither the Purchaser nor the Contractor shall be required to indemnify the Federal Government
for any such liability arising out of the wrongful act of any employee, official, or agents of the
Federal Government.
(e) Nothing contained in. this clause on rights in data shall imply a license to the Federal
Government under any patent or be construed as affecting the scope of any license or other right
otherwise granted to the Federal Government under any patent.
(f) Data developed by the Purchaser or Contractor and financed entirely without using Federal
assistance provided by the Federal Government that has been incorporated into work required by
the underlying contract to which this Attachment has been added is exempt from the
requirements of subsections (b), (c), and (d) of this clause, provided that the Purchaser or
Contractor identifies that data in writing at the time of delivery of the contract work.
(g) Unless FTA determines otherwise, the Contractor agrees to include these requirements in
each subcontract for experimental, developmental, or research work financed in whole or in part
with Federal assistance provided by FTA.
(3) Unless the Federal Government later makes a contrary determination in writing, irrespective
of the Contractor's status (i.e., a large business, small business, state government or state
instrumentality, local government, nonprofit organization, institution of higher education,
individual, etc.), the Purchaser and the Contractor agree to take the necessary actions to provide,
through FTA, those rights in that invention due the Federal Government as described in
47
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 - The following requirements apply to each contract involving experimental,
developmental, or research work:
(1) General - If any invention, improvement, or discovery is conceived or first actually reduced
to practice in the course of or under the contract to which this Attachment has been added, and
that invention, improvement, or discovery is patentable under the laws of the United States of
America or any foreign country, the Purchaser and Contractor agree to take actions necessary to
provide immediate notice and a detailed report to the party at a higher tier until FTA is ultimately
notified.
(2) Unless the Federal Government later makes a contrary determination in writing, irrespective
of the Contractor's status (a large business, small business, state government or state
instrumentality, local government, nonprofit organization, institution of higher education,
individual), the Purchaser and the Contractor agree to take the necessary actions to provide,
through FTA, those rights in that invention due the Federal Government as described in U.S.
Department of Commerce regulations, "Rights to Inventions Made by Nonprofit Organizations
and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,"
37 C.F.R. Part 401.
(3) The Contractor also agrees to include the requirements of this clause in each subcontract for
experimental, developmental, or research work financed in whole or in part with Federal
assistance provided by FTA.
17. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
49 CFR Part 26
Background and Applicability
The newest version on the Department of Transportation's Disadvantaged Business Enterprise
(DBE) program became effective July 16, 2003. The rule provides guidance to grantees on the
use of overall and contract goals, requirement to include DBE provisions in subcontracts,
evaluating DBE participation where specific contract goals have been set, reporting
requirements, and replacement of DBE subcontractors. Additionally, the DBE program dictates
payment terms and conditions (including limitations on retainage) applicable to all
subcontractors regardless of whether they are DBE firms or not.
48
The DBE program applies to all DOT -assisted contracting activities. A formal clause such as
that below must be included in all contracts above the micro -purchase level. The requirements
of clause subsection b flow down to subcontracts.
A substantial change to the payment provisions in this newest version of Part 26 concerns
retainage (see section 26.29). Grantee choices concerning retainage should be reflected in the
language choices in clause subsection d.
Clause Language
The following clause language is suggested, not mandatory. It incorporates the payment terms
and conditions applicable to all subcontractors based in Part 26 as well as those related only to
DBE subcontractors. The suggested language allows for the options available to grantees
concerning retainage, specific contract goals, and evaluation of DBE subcontracting participation
when specific contract goals have been established.
Disadvantaged Business Enterprises
a. This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26,
Participation by Disadvantaged Business Enterprises in Department of Transportation Financial
Assistance Programs. The national goal for participation of Disadvantaged Business Enterprises
(DBE) is 10%. The agency's overall goal for DBE participation is _ %. A separate contract
goal [of _ % DBE participation has] [has not] been established for this procurement.
b. The contractor shall not discriminate on the basis of race, color, national origin, or sex in the
performance of this contract. The contractor shall carry out applicable requirements of 49 CFR
Part 26 in the award and administration of this DOT -assisted contract. Failure by the contractor
to carry out these requirements is a material breach of this contract, which may result in the
termination of this contract or such other remedy as (insert agency name) deems appropriate.
Each subcontract the contractor signs with a subcontractor must include the assurance in this
paragraph (see 49 CFR 26.13(b)).
c. {If a separate contract goal has been established, use the following} Bidders/offerors are
required to document sufficient DBE participation to meet these goals or, alternatively,
document adequate good faith efforts to do so, as provided for in 49 CFR 26.53. Award of this
contract is conditioned on submission of the following [concurrent with and accompanying
sealed bid] [concurrent with and accompanying an initial proposal] [prior to award]:
1. The names and addresses of DBE firms that will participate in this contract;
2. A description of the work each DBE will perform;
3. The dollar amount of the participation of each DBE firm participating;
4. Written documentation of the bidder/offeror's commitment to use a DBE subcontractor
whose participation it submits to meet the contract goal;
5. . Written confirmation from the DBE that it is participating in the contract as provided in the
prime contractor's commitment; and
6. If the contract goal is not met, evidence of good faith efforts to do so.
49
• Performance -Based Planning
o Mobility
o Economic development
o Quality of life
o Environmental and resource consumption
o Safety
o Operational Efficiency .
o System preservation
Corridor planning:
• Corridor optimization plans
• Access control
• Demand forecasting
• Cost estimates
• Freight and commodity movement planning and analysis
Multi modal applications and planning studies:
• Transit, bicycle and pedestrian
Financial Analysis:
• Revenue, expense, and pro -forma forecasts
• Cost/benefit•analysis
• Feasibility studies
• Innovative financing techniques
• Impact Fee analysis
Data Collection and Analysis:
• GPS inventories
• Manual Traffic and Transit Surveillance
• Manual Vehicle Surveillance
• Manual Freight and Goods Movement Surveillance
5
[Bidders] [Offerors] must present the information required above [as a matter of
responsiveness] [with initial proposals] [prior to contract award] (see 49 CFR 26.53(3)).
(If no separate contract goal has been established, use the following) The successful
bidder/offeror will be required to report its DBE participation obtained through race -neutral
means throughout the period of performance.
d. The contractor is required to pay its subcontractors performing work related to this contract
for satisfactory performance of that work no later than 30 days after the contractor's receipt of
payment for that work from the (insert agency name). In addition, [the contractor may not
hold retainage from its subcontractors.] [is required to return any retainage payments to
those subcontractors within 30 days after the subcontractor's work related to this contract
is satisfactorily completed.] [is required to return any retainage payments to those
subcontractors within 30 days after incremental acceptance of the subcontractor's work by
the {insert agency name) and contractor's receipt of the partial retainage payment related
to the subcontractor's work.]
e. The contractor must promptly notify (insert agency name), whenever a DBE subcontractor
performing work related to this contract is terminated or fails to complete its work, and must
make good faith efforts to engage another DBE subcontractor to perform at least the same
amount of work. The contractor may not terminate any DBE subcontractor and perform that
work through its own forces or those of an affiliate without prior written consent of (insert
agency name).
18. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA)
TERMS
FTA Circular 4220.1E
Applicability to Contracts
The incorporation of FTA terms applies to all contracts.
Flow Down
The incorporation of FTA terms has unlimited flow down.
Model Clause/Language
FTA has developed the following incorporation of terms language:
Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions
include, in part, certain Standard Terms and Conditions required by DOT, whether or not
expressly set forth in the preceding contract provisions. All contractual provisions required by
DOT, as set forth in FTA Circular 4220.1 E, are hereby incorporated by reference. Anything to
the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the
50
event of a conflict with other provisions contained in this Agreement. The Contractor shall not
perform any act, fail to perform any act, or refuse to comply with any (name of grantee) requests
which would cause (name of grantee) to be in violation of the FTA terms and conditions.
51
• Roadway geometries
• Traffic counts
• Travel times
• Turning movements
• Vehicle classification Vehicle weight
• Vehicle occupancy
• Data analysis
• On Board transit surveys
• Behavioral surveys
• Market surveys
• Attitudinal surveys
• Household travel surveys
Process Facilitation:
• Develop and implement process and methodologies for various planning related
applications
• Facilitate public involvement processes in relation to planning work
• Coordinate and facilitate planning related activities with stakeholders
Transportation/Travel Demand/Land Use/Air Quality Modeling:
• Application and analysis of travel demand models and their application
Environmental Planning:
• Environmental data analysis/modeling
• Technical and policy support
• Compliance with various federal regulatory Acts
• Climate Change and Green House Gases
Work Task Deliverables:
The types of work task deliverables anticipated are:
Planning documents
11
Feasibility reports
Technical reports and "white" papers
Management reports
Presentation materials
Electronic information such as databases, spreadsheets, maps and drawings
Expertise:
Relevant work experience and expertise in major service categories identified in this scope of
work.
The firms should have familiarity with State and MPO planning process in Colorado and
experience working with multiple stakeholders.
In addition to technical expertise associated with engineering and planning, firms need to have
capabilities in graphic arts and various other forms of visual, oral and written communications
(including the preparation of web site materials). This requirement considers that a firm's staff
members may be called upon to make presentations to advisory committees and various groups,
including public officials, and to interact with the public and other interested parties at meetings
and hearings --or to provide supporting materials so that the MPO's staff can perform those
functions.
Submissions:
Six (6) copies of the written proposal should be submitted and include the qualifications of the
firm and the individuals that would be assigned to this project. This submission will cover the
nonspecific work order.
Travel:
The NFRMPO office is located in Fort Collins, Colorado and travel expenses should be included
in work order proposals. There is a limited budget for projects, so travel expenses should be
considered carefully.
7
REVIEW AND ASSESSMENT
Professional firms will be evaluated on the following criteria. These criteria will be the basis for
review of the written proposals and interview session.
The rating scale shall be from 1 to 5, with 1 being a poor rating, 3 being an average rating, and 5
being an outstanding rating.
WEIGHTING
QUALIFICATION
STANDARD
FACTOR
2.0
Scope of Proposal
Does the proposal show an understanding of the
project objective, methodology to be used and
results that are desired from the project?
2.0
Assigned Personnel
Do the persons who will be working on the project
have the necessary skills? Are sufficient people of
the requisite skills assigned to the project?
1.0
Availability .
Can the work be completed in the necessary time?
Can the target start and completion dates be met?
Are other qualified personnel available to assist in
meeting the project schedule if required? Is the
project team available to attend meetings as
required by the Scope of Work?
1.0
Motivation
Is the firm interested and are they capable of doing
the work in the required time frame?
2.0
Cost and
Do the proposed cost and work hours compare
Work Hours
favorably with the project Manager's estimate? Are
the work hours presented reasonable for the effort
required in each project task or phase?
2.0
Firm Capability
Does the firm have the support capabilities the
assigned personnel require? Has the firm done
previous projects of this type and scope?
8
Reference evaluation (Top Ranked Firm)
The project Manager will check references using the following criteria. The evaluation rankings
will be labeled Satisfactory/Unsatisfactory.
QUALIFICATION
STANDARD
Overall Performance
Would you hire this Professional again? Did
they show the skills required by this project?
Timetable
Was the original Scope of Work completed
within the specified time? Were interim
deadlines met in a timely manner?
Completeness
Was the Professional responsive to client
needs; did the Professional anticipate
problems? Were problems solved quickly and
effectively?
Budget
Was the original Scope of Work completed
within the project budget?
Job Knowledge
a) If a study, did it meet the Scope of Work?
b) If Professional administered a construction
contract, was the project functional upon
completion and did it operate properly?
Were problems corrected quickly and
effectively?