HomeMy WebLinkAbout495309 INTERACTIVE ELEMENTS INC - CONTRACT - RFP - 7284 TRAINING & PROCUREMENT REVIEW FOR FTA FUNDEDPROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into the day and year set forth below, by and
between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter
referred to as the "City" and Interactive Elements Incorporated, hereinafter referred to as
"Professional".
WITNESSETH:
In consideration of the mutual covenants and obligations herein expressed, it is agreed
by and between the parties hereto as follows:
1. Scope of Services. The Professional agrees to provide services in accordance
with the scope of services attached hereto as Exhibit "A", consisting of eight (8) pages, and
incorporated herein by this reference.
2. The Work Schedule. The services to be performed pursuant to this Agreement
shall be performed in accordance with the Work Schedule attached hereto as Exhibit "B",
consisting of one (1) page, and incorporated herein by this reference.
3. Contract Period. This Agreement shall commence November 1, 2011, and shall
continue in full force and effect until October 31, 2012, unless sooner terminated as herein
provided. In addition, at the option of the City, the Agreement may be extended for additional
one year periods not to exceed four (4) additional one year periods. Renewals and pricing
changes shall be negotiated by and agreed to by both parties. The Denver Boulder Greeley
CPIU published by the Colorado State Planning and Budget Office will be used as a guide.
Written notice of renewal shall be provided to the Professional and mailed no later than ninety
(90) days prior to contract end.
4. Early Termination by City. Notwithstanding the time periods contained herein,
the City may terminate this Agreement at any time without cause by providing written notice of
termination to the Professional. Such notice shall be delivered at least fifteen (15) days prior to
Professional Services Agreement
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At the time the draft report is issued, PROFESSIONAL will also recommend corrective actions
to improve compliance reliability, and determine the shape and scope of the recommended
training program.
Final Report
A final report containing the summary organizational assessment; process mapping, roles and
responsibility alignment; and other items relevant to the City's procurement processes will be
issued within two weeks of the draft report. The final report will reflect comments from the City
regarding the contents of the draft report.
Deliverables
In addition to the final report summarizing the results of the Procurement Process Review,
PROFESSIONAL will submit a "roadmap" of suggestions for the Training component of this
project.
Phase 2 - Training
Condensed but comprehensive FTA procurement requirements, which will include all elements
including those where the City was found deficient or where the professional has identified the
City is in need of training to comply with FTA procurement requirements.
n Independent Cost Estimate (ICE)
D Cost Analysis
Sole Source Justification
n Davis -Bacon Wage Requirements
General
Professional training will emphasize the "best practices" for FTA-related contract procurements
and the FTA's Best Practices Procurement Manual and Circular 4220.1 F will be referenced
throughout the workshops. Both the short and the long workshops will focus on good
procurement business practices and policies from a broader industry perspective. We will
introduce minimum standards for agency practices as described in FTA Circular 4220.1 F and
the Master Agreement and will provides participants with a framework for examining basic
issues pertaining to third -party contracting. We will discuss the roles and responsibilities of
contracting parties and will address all the problem areas that may emerge during the
evaluation process in addition to the four already identified areas. Each workshop will begin with
an overview of all FTA Procurement- related elements including:
n FTA's Role in the Procurement Process
Procurement "Best Practices"
p Organization of the Procurement Function
n Functions and Principles of Procurement
n Acquisition Planning
f] Writing Specifications and Statements of Work
n General Contract Provisions
n Procurement Integrity
n Debriefing and Protests
All training will be hands-on and pro -active. A PowerPoint presentation will be used as
background and reference for each of the modules, but most of the training will be interactive
between trainer and trainees. Workshops will be developed utilizing exercises, case studies,
and other interactive training activities.
Professional Services Agreement
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To develop written materials used for pre -testing, training, and post -testing, PROFESSIONAL
will choose real life examples of procurement issues, preferably culled from the files of the City
of Fort Collins during Phase 1 — Evaluation, and assembled into a type of Case Study that best
reflects the City's concerns. Through a combination of lecture, quizzes, group discussion, and
group projects, PROFESSIONAL will develop tailored training modules that draw from adult
learning concepts. Each module will have a scope and goals and objectives that are to be
satisfied by the training process.
PROFESSIONAL would also suggest a follow-up survey/quiz in three -to -four months post -
training to ensure retention of the major constructs and to receive feedback of real life
procurement examples.
The following offers more detail regarding the scope, background, training content, and FTA
references for the four areas of procurement identified by the City of Fort Collins in its RFP.
Independent Cost Estimate (ICE)
Scope: Using examples from the City's procurement files, the ICE training module will provide
the City of Fort Collins with the tools to develop independent cost estimates for all procurements,
regardless of size; understand the reasons for developing independent cost estimates, and,
understand the relationship of an ICE to FTA compliance.
Background: The independent cost estimate is a tool to assist in the determination of the
reasonableness or unreasonableness of the bid or proposal being evaluated and is required for
all procurements regardless of dollar amount. Independent cost estimates can range from a
simple budgetary estimate to a complex estimate based on inspection of the product itself and
review of items like drawings, specifications, and prior data.
The independent cost estimate is especially critical whenever there is no price competition (e.g.,
for architect -engineer procurements where only one price proposal is received), or where
offerors are submitting price proposals for goods or services that are not exactly comparable
(e.g., for procurements of high-technology items or professional services). It is also useful in
competitive procurements to alert the agency when all competitors are submitting unreasonably
high or low cost proposals.
Training Content
The training will use a combination of lecture, power -point presentation, pre -and -post tests, and
group decision -making to determine:
p Requirements for an ICE (CFR and FTA Circular references)
Rationale for an ICE
I7 Examples of ICE
0 Determination of reasonable or unreasonable
7 Methods of developing an ICE
Inclusion of ICE in a record of procurement history
References 49 CFR 18.36 (f) (1) FTA C 4220.1 F, Ch. Vl, Section 6
Cost Analysis
Scope: Using examples from the City's procurement files, the Cost Analysis training module will
provide the City of Fort Collins with the tools to develop a cost analysis; determine the
Professional Services Agreement
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difference between a cost analysis, price analysis, and independent cost estimate for all
procurements, regardless of size; understand the reasons for developing cost analyses; and,
understanding the relationship of a cost analysis to FTA compliance.
Background: Grantees must perform a cost or price analysis in connection with every
procurement action, including contract modifications. The method and degree of analysis is
dependent on the facts surrounding the particular procurement situation, but as a starting point,
grantees must make independent estimates before receiving bids or proposals. The methods of
analysis include cost analysis and price analysis.
Cost analysis must be performed for procurements requiring the offeror to submit estimates for
labor hours, overhead, and materials; procurements where adequate price competition is
lacking; and sole source procurements unless price reasonableness can be established based
on market prices. Price analysis (i.e., catalog or market prices) may be performed for all other
procurements.
Reference49 CFR 18.36 (0 (1) FTA C 4220.1 F, Ch. Vl, Section 6
Training Content
The training will use a combination of lecture, power -point presentation, pre -and -post tests, and
group decision -making to cover topics such as:
n Composition of a cost analysis
❑ Effect of price or cost analysis on types of contracts
0 Rationale for a cost analysis
f7 Determination of fair and reasonable price
f] Examples of cost analyses
f7 Contract modifications
p Methods of conducting cost comparison
1� Role risk plays in pricing
1� Effect of contract type on allocation of risk
n Inclusion of a cost analysis in a record of procurement history
Sole Source Justification
Scope: Using examples from the City's procurement files, the Sole Source Justification training
module will provide the City of Fort Collins with the tools to develop a compliant sole source
justification; determine the difference between a sole source, single bid, and brand name or
equal procurement; understand the reasons for developing a sole source justification; and,
understanding the requirements for FTA compliance.
Background: FTA requires full and open competition in procurements for goods and services
and encourages grantees to award contracts to the lowest responsive and responsible bidder.
However, sole source, single bid, and brand name or equal awards can be used. In such
situations, the grantee should have appropriate documentation for the award.
When the grantee requires supplies or services available from only one responsible source, and
no other supplies or services will satisfy its requirements, the grantee may make a sole source
award. When the grantee requires an existing contractor to make a change to its contract that is
beyond the scope of that contract, the grantee has made a sole source award that must be
justified. The property or services are available from one source if one of the conditions
described below is present:
Professional Services Agreement
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D Unique or Innovative Concept. Unique or innovative concept means a new, novel, or
changed concept, approach, or method that is the product of original thinking, the details
of which are kept confidential or are patented or copyrighted, and is available to the
grantee only from one source and has not in the past been available to the grantee from
another source.
7 Patents or Restricted Data Rights. Patent or data rights restrictions preclude
competition.
17 Substantial Duplication Costs. In the case of a follow-on contract for the continued
development or production of highly specialized equipment and major components
thereof, when it is likely that award to another contractor would result in substantial .
duplication of costs that are not expected to be recovered through competition.
p Unacceptable Delay. In the case of a follow-on contract for the continued development
or production of highly specialized equipment and major components thereof, when it is
likely that award to another contractor would result in unacceptable delays in fulfilling the
grantee's needs. In the case of a sole source award, the documentation should be a
written sole source justification, which includes a cost analysis.
With a single bid, the documentation should include a cost analysis, as well as an explanation
as to why a single bid was obtained. Upon receiving a single bid or proposal in response to a
solicitation, the grantee should determine if competition was adequate. This should include a
review of the specifications for undue restrictiveness and might include a survey of potential
sources that chose not to submit a bid or proposal.
When it is impractical or uneconomical to provide a clear and accurate description of the
technical requirements of the property to be acquired, a "brand name or equal" description may
be used to define the performance or other salient characteristics of a specific type of property.
The grantee must identify the salient characteristics of the named brand that offerors must
provide. When using a "brand name" specification, the grantee does not need to reverse
engineer a complicated part to identify precise measurements or specifications in order to
describe its salient characteristics.
A recurring problem has been the procurement of professional services. Often these services
are procured with little or no competition. While such services can be procured on a sole source
basis if justified, in general, a competitive environment does exist for professional services and
the grantee needs to follow the requirements of FTA C 4220.1 F when Federal funds are used to
pay for these services.
Reference 49 CFR 18.36 (d) (4) FTA C 4220.1F, Ch. lll, Section 3.a (1) (e); FTA C 4220.1F, Ch. Vl,
Section 3.i
Training Content
The training will use a combination of lecture, power -point presentation, pre -and -post tests,
case study analysis, and group decision -making to determine:
17 Definitions of sole source, single bid, and brand name or equal
(7 Developing a rationale for a sole source contracting opportunity
f] Recognizing examples of sole source bids
Davis -Bacon Wage Requirements
Scope: Using examples from the City's procurement files, the Davis -Bacon Act training module
will provide the City of Fort Collins with the tools to apply the tenets of the Davis -Bacon Act to
Professional Services Agreement
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construction procurements over $2,000 for federally -assisted contracts, understand the three
key federal statues (Davis -Bacon Act/Davis-Bacon Related Acts, Contract Work Hours and
Safety Standards Act, and Copeland Act), understand the Davis -Bacon Process from planning
through construction, and understand the statute's applicability to City construction estimates
and contracts.
Background: The Davis -Bacon Act, as amended, requires that each contract over $2,000 to
which the United States or the District of Columbia is a party for the construction, alteration, or
repair of public buildings or public works shall contain a clause setting forth the minimum wages
to be paid to various classes of laborers and mechanics employed under the contract. Section
1606 of the Recovery Act requires that all laborers and mechanics employed by contractors and
subcontractors on projects funded directly by or assisted in whole or in part by and through the
Federal Government pursuant to the Recovery Act shall be paid wages at rates not less than
those prevailing on projects of a character similar in the locality as determined by the Secretary
of Labor in accordance with subchapter IV of Chapter 31 of title 40, United States Code. Federal
agencies providing grants, cooperative agreements, and loans under the Recovery Act shall
ensure that the standard Davis -Bacon contract clauses found in 29 CFR 5.5(a) are incorporated
in any resultant covered contracts that are in excess of $2,000 for construction, alternation or
repair.
Under the provisions of the Act, contractors or their subcontractors are to pay workers employed
directly upon the site of the work no less than the locally prevailing wages and fringe benefits
paid on projects of a similar character. The Davis -Bacon Act directs the Secretary of Labor to
determine such local prevailing wage rates. In addition to the Davis -Bacon Act itself, Congress
has added prevailing wage provisions to approximately 60 statutes, which assist construction
projects through grants, loans, loan guarantees, and insurance. These "related Acts" involve
construction in such areas as transportation, housing, air and water pollution reduction, and
health. If a construction project is funded or assisted under more than one Federal statute, the
Davis -Bacon prevailing wage provisions may apply to the project if any of the applicable
statutes require payment of Davis -Bacon wage rates.
Reference 29 CFR parts 1, 3, and 5
Training Content
The training will use a combination of lecture, power -point presentation, pre -and -post tests,
case study analysis, and group decision -making to:
7 Apply the tenets of the Davis -Bacon Act to construction procurements over $2,000 for
federally -assisted contracts.
U Determine wage rates for construction projects
f] Understand three key federal statues: Davis -Bacon Act/Davis-Bacon Related Acts,
Contract Work Hours and Safety Standards Act, and Copeland Act
f7 Understand the Davis -Bacon Process from planning through construction,
f] Understand the statute's applicability to City construction estimates and contracts.
Deliverables
Deliverables for the Training component of this project will include paper and electronic copies
of all the materials developed for this project including presentations, workbooks, reference
documents, and samples used throughout the training process.
Professional Services Agreement
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Phase 3: On -going Consultation
Post evaluation and training, Interactive Elements is available to provide expert consultative
support on an as -needed basis relevant to future Federal procurement programs, documents,
and examples used throughout the training process.
Professional Services Agreement
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EXHIBIT B
WORK SCHEDULE
Procurement Review
On -site Week of November 15-17
Draft Report Week of November 28 or earlier
Final Report Week of December 19
Training
December 13, 14, 15
Professional Services Agreement
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EXHIBIT C
FEDERAL TRANSIT ADMINISTRATION
TABLE OF CONTENTS
Federally Required and Other Model Contract Clauses
1.
NO GOVERNMENT OBLIGATION TO THIRD PARTIES..............................................................18
2.
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED
ACTS.....................................................................................................................................................18
3.
ACCESS TO RECORDS AND REPORTS.....................................................................................18
4.
FEDERAL CHANGES...................................................................................................................19
5.
TERMINATION..............................................................................................................................20
6.
CIVIL RIGHTS REQUIREMENTS..................................................................................................20
7.
DISADVANTAGED BUSINESS ENTERPRISE (DBE)..................................................................21
8.
INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS ..........................22
9.
GOVERNMENT -WIDE DEBARMENT AND SUSPENSION (NON PROCUREMENT)....................22
10.
BREACHES AND DISPUTE RESOLUTION..................................................................................23
11.
LOBBYING....................................................................................................................................24
12.
CLEAN AIR...................................................................................................................................26
13.
CLEAN WATER REQUIREMENTS...............................................................................................26
14.
FLY AMERICA REQUIREMENTS.................................................................................................26
15.
ENERGY CONSERVATION REQUIREMENTS.............................................................................26
16.
RECYCLED PRODUCTS..............................................................................................................26
17.
Conformance with ITS National Architecture.............................................................................27
18.
ADA Access..................................................................................................................................27
19.
CITY OF FORT COLLINS BID PROTEST PROCEDURES...........................................................27
Professional Services Agreement
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1. NO GOVERNMENT OBLIGATION TO THIRD PARTIES
No Obligation by the Federal Government.
(1) The Purchaser and Contractor acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the
underlying contract, absent the express written consent by the Federal Government, the Federal
Government is not a party to this contract and shall not be subject to any obligations or liabilities
to the Purchaser, Contractor, or any other party (whether or not a party to that contract)
pertaining to any matter resulting from the underlying contract.
(2) The Contractor agrees to include the above clause in each subcontract financed in whole or
in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be
modified, except to identify the subcontractor who will be subject to its provisions.
2. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED
ACTS
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 seg. and U.S. DOT regulations, "Program Fraud Civil
Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of
the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any
statement it has made, it makes, it may make, or causes to be made, pertaining to the
underlying contract or the FTA assisted project for which this contract work is being performed.
In addition to other penalties that may be applicable, the Contractor further acknowledges that if
it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or
certification, the Federal Government reserves the right to impose the penalties of the Program
Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government
deems appropriate.
(2) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious,
or fraudulent claim, statement, submission, or certification to the Federal Government under a
contract connected with a project that is financed in whole or in part with Federal assistance
originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves
the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the
Contractor, to the extent the Federal Government deems appropriate.
(3) The Contractor agrees to include the above two clauses in each subcontract financed in
whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses
shall not be modified, except to identify the subcontractor who will be subject to the provisions.
3. ACCESS TO RECORDS AND REPORTS
Access to Records - The following access to records requirements apply to this Contract:
A. Where the Purchaser is not a State but a local government and is the FTA Recipient or a
subgrantee of the FTA Recipient in accordance with 49 C.F.R. 18.36(i), the Contractor
agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the
United States or any of their authorized representatives access to any books,
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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.
B. 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.
C. The Contractor agrees to maintain all books, records, accounts and reports required
under this contract for a period of not less than three years after the date of termination
or expiration of this contract, except in the event of litigation or settlement of claims
arising from the performance of this contract, in which case Contractor agrees to
maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or
any of their duly authorized representatives, have disposed of all such litigation, appeals,
claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11).
D. FTA does not require the inclusion of these requirements in subcontracts.
Requirements for Access to Records and Reports by Types of Contract
Contract
Characteristics
Operational
Service
Contract
Turnkey
Construction
Architectural
Engineering
Acquisition
of Rolling
Stock
Professional
Services
I State Grantees
a. Contracts below
None
Those
None
None
None
None
SAT ($100,000)
imposed on
state pass
b. Contracts above
None
thru to
Yes, if non-
None unless
None
None unless
$100,000/Capital
unless' non-
Contractor
competitive
non-
unless non-
non -
Projects
competitive
award or if
competitive
competitive
competitive
award
funded thrU2
award
award
award
5307/5309153
11
II Non State
Grantees
Those
a. Contracts below
Yes3
imposed on
Yes
Yes
Yes
Yes
SAT ($100,000)
non -state
b. Contracts above
Yes3
Grantee
Yes
Yes
Yes
Yes
$100,000/Capital
pass thru to
Projects
Contractor
Sources of Authority: ' 49 USC 5325 (a) ` 49 CFR 633.17 ' 18 CFR 18.36 (i)
4. FEDERAL CHANGES
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
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the termination date contained in said notice unless otherwise agreed in writing by the parties.
All notices provided under this Agreement shall be effective when mailed, postage prepaid and
sent to the following addresses:
Professional:
City:
With Copy to:
Interactive Elements Inc
City of Fort Collins
City of Fort Collins , Purchasing
60 East 42nd St
Attn:City Clerk
PO Box 580
Room 2035
PO Box 580
Fort Collins, CO 80522
New York, NY 10165
Fort Collins, CO 80522
In the event of any such early termination by the City, the Professional shall be paid for services
rendered and expenses prior to the date of termination, subject only to the satisfactory
performance of the Professional's obligations under this Agreement. Such payment shall be the
Professional's sole right and remedy for such termination.
5. Design, Proiect Indemnity and Insurance Responsibility. The Professional shall
be responsible for the professional quality, technical accuracy, timely completion and the
coordination of all services rendered by the Professional, including but not limited to reports,
training and shall, without additional compensation, promptly remedy and correct any errors,
omissions, or other deficiencies. The Professional shall indemnify, save and hold harmless the
City, its officers and employees in accordance with Colorado law, from all damages whatsoever
claimed by third parties against the City; and for the City's costs and reasonable attorneys fees,
arising directly or indirectly out of the Professional's negligent performance of any of the
services furnished under this Agreement. The Professional shall maintain commercial general
liability insurance in the amount of $500,000 combined single limits and errors and omissions
insurance in the amount of $NA
6. Compensation. In consideration of the services to be performed pursuant to
this Agreement, the City agrees to pay Professional a fixed fee in the amount of forty seven
thousand four hundred fifty two dollars ($47,452) plus reimbursable direct costs. All such fees
and costs shall not exceed fifty two thousand four hundred fifty two dollars ($52,452) for Phases
1 and 2. Any on -going consultation work will be billed at the amount of $175/hr and requires
Professional Services Agreement
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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.
5. TERMINATION
a. Termination for Convenience (General Provision) The City may terminate
this contract, in whole or in part, at any time by written notice to the Contractor when it is in the
Government's best interest. The Contractor shall be paid its costs, including contract close-out
costs, and profit on work performed up to the time of termination. The Contractor shall promptly
submit its termination claim to the City to be paid the Contractor. If the Contractor has any
property in its possession belonging to the City, the Contractor will account for the same, and
dispose of it in the manner the City directs.
b. Termination for Default [Breach or Cause] (General Provision) If the Contractor
does not deliver supplies in accordance with the contract delivery schedule, or, if the contract is
for services, the Contractor fails to perform in the manner called for in the contract, or if the
Contractor fails to comply with any other provisions of the contract, the City may terminate this
contract for default. Termination shall be effected by serving a notice of termination on the
contractor setting forth the manner in which the Contractor is in default. The contractor will only
be paid the contract price for supplies delivered and accepted, or services performed in
accordance with the manner of performance set forth in the contract.
If it is later determined by the City that the Contractor had an excusable reason for not
performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the
control of the Contractor, the City, after setting up a new delivery of performance schedule, may
allow the Contractor to continue work, or treat the termination as a termination for convenience.
c. Opportunity to Cure (General Provision) The City in its sole discretion may, in the
case of a termination for breach or default, allow the Contractor [an appropriately short period of
time] in which to cure the defect. In such case, the notice of termination will state the time
period in which cure is permitted and other appropriate conditions
If Contractor fails to remedy to the City'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 the City setting forth the nature of said breach or default, the City shall have
the right to terminate the Contract without any further obligation to Contractor. Any such
termination for default shall not in any way operate to preclude the City from also pursuing all
available remedies against Contractor and its sureties for said breach or default.
d. Waiver of Remedies for any Breach In the event that the City elects to waive its
remedies for any breach by Contractor of any covenant, term or condition of this Contract, such
waiver by the City shall not limit the City's remedies for any succeeding breach of that or of any
other term, covenant, or condition of this Contract.
6. CIVIL RIGHTS REQUIREMENTS
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
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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 seq., (which implement Executive Order No. 11246, "Equal
Employment Opportunity," as amended by Executive Order No. 11375, "Amending
Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e
note), and with any applicable Federal statutes, executive orders, regulations, and
Federal policies that may in the future affect construction activities undertaken in the
course of the Project. The Contractor agrees to take affirmative action to ensure that
applicants are employed, and that employees are treated during employment, without
regard to their race, color, creed, national origin, sex, or age. Such action shall include,
but not be limited to, the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising, layoff or termination; rates of pay or other forms
of compensation; and selection for training, including apprenticeship. In addition, the
Contractor agrees to comply with any implementing requirements FTA may issue.
(b) Acme - 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.
7. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
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 9.9%. A separate contract goal[has not] been established for this
procurement.
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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 City of Fort Collins deems appropriate. Each subcontract the contractor signs with
a subcontractor must include the assurance in this paragraph (see 49 CFR 26.13(b)).
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 City of Fort Collins. In addition,
[is required to return any retainage payments to those subcontractors within 30
days after incremental acceptance of the subcontractor's work by the City of Fort
Collins and contractor's receipt of the partial retainage payment related to the
subcontractor's work.]
e. The contractor must promptly notify City of. Fort Collins 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 City of Fort Collins.
8. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS
Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions include,
in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set
forth in the preceding contract provisions. All contractual provisions required by DOT, as set
forth in FTA Circular 4220.1 E, are hereby incorporated by reference. Anything to the contrary
herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a
conflict with other provisions contained in this Agreement. The Contractor shall not perform any
act, fail to perform any act, or refuse to comply with any (name of grantee) requests which
would cause (name of grantee) to be in violation of the FTA terms and conditions.
9. 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
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
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$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 from this offer. The bidder
or proposer further agrees to include a provision requiring such compliance in its lower tier
covered transactions.
10. BREACHES AND DISPUTE RESOLUTION
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 City'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 City, Contractor shall continue
performance under this Contract while matters in dispute are being resolved.
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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 City and the Contractor arising out of or relating to this
agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court
of competent jurisdiction within the State in which the City 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 City, (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.
11. LOBBYING
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
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.
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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.]
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
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Date
12. CLEAN AIR
Clean Air —
(1) The Contractor agrees to comply with all applicable standards, orders or regulations
issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The
Contractor agrees to report each violation to the Purchaser and understands and agrees
that the Purchaser will, in turn, report each violation as required to assure notification to FTA
and the appropriate EPA Regional Office.
(2) The Contractor also agrees to include these requirements in each subcontract exceeding
$100,000 financed in whole or in part with Federal assistance provided by FTA.
13. CLEAN WATER 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.
14. 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.
15. ENERGY CONSERVATION REQUIREMENTS
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.
16. RECYCLED PRODUCTS
Recovered Materials - The contractor agrees to comply with all the requirements of Section
6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962),
including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order
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12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part
247.
17. Conformance with ITS National Architecture
To the extent applicable, the Contractor agrees to conform to the National Intelligent
Transportation Systems (ITS) Architecture and Standards as required by SAFETEA-LU §
5307(c), 23 U.S.C. § 512 note, and follow the provisions of FTA Notice, "FTA National ITS
Architecture Policy on Transit Projects," 66 Fed. Reg. 1455 et seq., January 8, 2001, and any
other implementing directives FTA may issue at a later date, except to the extent FTA
determines otherwise in writing.
18. ADA Access
Accessibility. Facilities to be used in public transportation service must comply with 42 U.S.C.
Sections 12101 et seq. and DOT regulations, "Transportation Services for Individuals with
Disabilities (ADA)," 49 CFR Part 37; and Joint ATBCB/DOT regulations, "Americans with
Disabilities (ADA) Accessibility Specifications for Transportation Vehicles," 36 CFR Part 1192
and 49 CFR Part 38. Notably, DOT incorporated by reference the ATBCB's "Americans with
Disabilities Act Accessibility Guidelines' (ADAAG), revised July 2004, which include accessibility
guidelines for buildings and facilities, and are incorporated into Appendix A to 49 CFR Part 37.
DOT also added specific provisions to Appendix A modifying the ADAAG, with the result that
buildings and facilities must comply with both the ADAAG and amendments thereto in Appendix
A to 49 CFR Part 37.
19. CITY OF FORT COLLINS BID PROTEST PROCEDURES
Filing of Protest
When to File. Protest is submitted in writing and received by the Director of Purchasing and
Risk Management, 215 N. Mason Street, 2Id Floor, P. O. Box 580, Fort Collins, CO. 80522
within seven (7) working days after the aggrieved person knows or should have known of
the facts giving rise thereto. Protests based upon restrictive specifications or alleged
improprieties in any type of solicitation, which are apparent prior to bid opening or the
closing date for receipt of initial proposals, is filed no later than three (3) working days prior
to bid opening or the closing date for receipt of proposals.
2. Subject of Protest. Protestors may file a protest on any phase of solicitation or award,
including but not limited to specification or award.
3. Form. The protest must be in writing and include, as a minimum, the following:
(a) The name and address of the protestor.
(b) Appropriate identification of the procurement by bid number.
(c) A statement of the reasons for the protest.
(d) Any available exhibits, evidence or documents substantiating the protest.
4. Decision. The Director of Purchasing and Risk Management makes a decision, in writing,
on a protest within seven (7) working days after receiving all relevant, requested
information. The decision of the Director of Purchasing and Risk Management is final.
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5. Withholding of Award. When a protest has been filed before award, the City will not make
an award prior to the resolution of the protest, and when a protest has been filed before the
opening of bids, the City will not open bids prior to the resolution of the protest, unless the
City determines that:
(a) The items to be procured are urgently required.
(b) Delivery or performance will be unduly delayed by failure to make the award
promptly.
(c) Failure to make prompt award will otherwise cause undue harm to the City.
NOTE: Protests involving Federal Transit Administration (FTA) Funded Projects
Vendors who protest an FTA funded purchase have an additional remedy if
their protest is denied by the City. They may also protest the award, (after
these administrative processes have been exhausted) directly to the Federal
Transit Administration.
FTA will only entertain a protest that alleges the grantee failed to follow their
protest procedures and that such a protest must be filed in accordance with the
Circular; and
Allowance for request for reconsideration (if data becomes available that was
not previously known, or there has been an error of law or regulation).
The City of Fort Collins will notify FTA of any protests received relating to FTA funded projects.
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prior authorization from the City. Monthly partial payments based upon the Professional's
billings and itemized statements are permissible. The amounts of all such partial payments
shall be based upon the Professional's City -verified progress in completing the services to be
performed pursuant hereto and upon the City's approval of the Professional's actual
reimbursable expenses.
7. City Representative. The City will designate, prior to commencement of work, its
project representative who shall make, within the scope of his or her authority, all necessary and
proper decisions with reference to the project. All requests for contract interpretations, change
orders, and other clarification or instruction shall be directed to the City Representative.
8. Independent Contractor. The services to be performed by Professional are those
of an independent contractor and not of an employee of the City of Fort Collins. The City shall
not be responsible for withholding any portion of Professional's compensation hereunder for the
payment of FICA, Workers' Compensation, other taxes or benefits or for any other purpose.
9. Personal Services. It is understood that the City enters into this Agreement
based on the special abilities of the Professional and that this Agreement shall be considered as
an agreement for personal services. Accordingly, the Professional shall neither assign any
responsibilities nor delegate any duties arising under this Agreement without the prior written
consent of the City.
10. Acceptance Not Waiver. , The City's approval of drawings, designs, plans,
specifications, reports, and incidental work or materials furnished hereunder shall not in any way
relieve the Professional of responsibility for the quality or technical accuracy of the work. The
City's approval or acceptance of, or payment for, any of the services shall not be construed to
operate as a waiver of any rights or benefits provided to the City under this Agreement.
11. Default. Each and every term and condition hereof shall be deemed to be a
material element of this Agreement. In the event either party should fail or refuse to perform
according to the terms of this agreement, such party may be declared in default.
Professional Services Agreement
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12. Remedies. In the event a party has been declared in default, such defaulting
party shall be allowed a period of ten (10) days within which to cure said default. In the event
the default remains uncorrected, the party declaring default may elect to (a) terminate the
Agreement and seek damages; (b) treat the Agreement as continuing and require specific
performance; or (c) avail himself of any other remedy at law or equity. If the non -defaulting
party commences legal or equitable actions against the defaulting party, the defaulting party
shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney fees
and costs incurred because of the default.
13. Binding Effect. This writing, together with the exhibits hereto, constitutes the
entire agreement between the parties and shall be binding upon said parties, their officers,
employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs,
personal representatives, successors and assigns of said parties.
14. Law/Severability. The laws of the State of Colorado shall govern the
construction, interpretation, execution and enforcement of this Agreement. In the event any
provision of this Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this
Agreement.
17. Prohibition Against Employing Illegal Aliens. 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
Professional Services Agreement
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pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment
eligibility of all newly hired employees to perform work under this Agreement.
b. Professional shall not knowingly employ or contract with an illegal alien to
perform work under this Agreement or knowingly enter into a contract with a
subcontractor that knowingly employs or contracts with an illegal alien to perform work
under this Agreement.
C. Professional is prohibited from using the e-Verify Program or Department
Program procedures to undertake pre -employment screening of job applicants while this
Agreement is being performed.
d. If Professional obtains actual knowledge that a subcontractor performing work
under this Agreement knowingly employs or contracts with an illegal alien, Professional
shall:
1. Notify such subcontractor and the City within three days that Professional
has actual knowledge that the subcontractor is employing or contracting with an
illegal alien; and
2. Terminate the subcontract with the subcontractor if within three days of
receiving the notice required pursuant to this section the subcontractor does not
cease employing or contracting with the illegal alien; except that Professional
shall not terminate the contract with the subcontractor if during such three days
the subcontractor provides information to establish that the subcontractor has not
knowingly employed or contracted with an illegal alien.
e. Professional shall comply with any reasonable request by the Colorado
Department of Labor and Employment (the "Department") made in the course of an
investigation that the Department undertakes or is undertaking pursuant to the authority
established in Subsection 8-17.5-102 (5), C.R.S.
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.
Professional Services Agreement
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18. Special Provisions. Special provisions or conditions relating to the services to be
performed pursuant to this Agreement are set forth in Exhibit "C" Federal Terms and Conditions,
consisting of twelve (12) pages, attached hereto and incorporated herein by this reference.
Professional Services Agreement I
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APP 0 FORM:
Assi a City Attorney
THE CITY OF FORT COLLINS, COLORADO
By:
a s B. O'Neill II, CPPO, FNIGP --
Direct repurchasing &Risk Management
E: ( Ili
Interactive Elements Incorporated
By:
Title:
CORPORATE PRESIDENT OR VICE PRESIDENT
Date: Q L�b be �- 2L, , -2- 0 � �
ATTEST: /� n
lJ i I 't/ v "+ (Corporate Seal)
Co porate Secretary
Professional Services Agreement
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EXHIBIT A
SCOPE OF WORK
The following addresses Professional suggested activities for evaluation, training, and on -going
consultative services for the City of Fort Collins. PROFESSIONAL has divided the program into
phases, using the three project elements discussed in the RFP:
Phase 1 - Evaluate the current City procurement processes and documentation, organizational
structure and accountabilities alignment, and recommend corrective actions to improve
compliance reliability.
Phase 2 - Train City personnel in all aspects of FTA regulations and compliance requirements
to ensure that it is complying with all Federal regulations.
Phase 3 - Provide expert consultative support on an as -needed basis related to future Federal
procurement programs.
Phase 1: Procurement Review and Evaluation
FTA grantees use their own procurement procedures that reflect applicable state and local laws
and regulations, provided that the process ensures competitive procurement and the
procedures conform to applicable Federal law, including 49 CFR Part 18 (specifically Section
18.36) and FTA Circular 4220.1 F, "Third Party Contracting Guidance."
As stated in the RFP, to ensure that all procurement activities across the City organization
associated with FTA funded projects are in full compliance with all FTA regulations, a full
evaluation of current City procurement processes, organizational structure, and accountabilities
alignment is required, building on the results of the recent Triennial and Procurement System's
reviews.
Because of Professional hands-on experience in procurement at transit agencies, we are
especially qualified to provide a thorough evaluation of the City's procurement processes. At the
conclusion of the evaluation, we will deliver a Final Report and a roadmap for training and
training materials we would recommend based on the results of the evaluation.
Task 1 - Assessment
Pre -Site Visit Review
The Evaluation of the City of Fort Collins' Procurement program and the first step of the
Procurement Process Review will begin with a thorough assessment of the City's systems.
Prior to a formal site visit and after an entrance teleconference and additional discussions,
PROFESSIONAL will attempt to obtain and review all available written material, including those
documents available with the RFP such as the prior Procurement System Reviews and prior
Triennial Reviews. Other documentation might include the City's Capital Plan to familiarize us
with projected procurements, other audits and reports that may have been prepared;
correspondence files regarding procurement; and other supporting materials. TEAM will be
accessed to review the number, type, and size of grants; types of projects; vehicle purchases;
facility construction; the application of funds to safety and security; and the plethora of other
support services. For efficiency, as many documents as possible will be obtained from TEAM
and other electronic sources. This step will further familiarize PROFESSIONAL with the
historical record of performance on both procurement and other issues.
Professional Services Agreement
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Much of the conduct of the Assessment Phase will be governed by checklists and interview
questions provided in the Triennial Review Program Guide and the Guide for Procurement
System Reviews, all based upon FTA Circular 4220.1 F, but considerable knowledge, skill, and
sensitivity are required to complete a thorough and accurate Assessment.
The reviewers will consult with staff to further familiarize themselves with special issues that
may be Citywide or related to specific procurements. Individual procurements, especially those
conducted since the last Procurement System Review, may also be identified for inclusion in the
Assessment Phase.
Site Visit Evaluation
With the information accumulated from the review of prior documents, the PROFESSIONAL
Reviewers will continue the Assessment Phase with a Site Visit to the grantee. This visit will
permit PROFESSIONAL to acquire the remaining information required to determine the breadth
of a subsequent training program. The Site Visit will include interviews with management and
management staff, inspections of grantee documents unavailable prior to the site visit, and, if
appropriate, inspections of facilities and equipment.
The Site Visit will also begin with an Entrance Conference where the purpose and underlying
authority for the review is presented to the City, the review process and schedule of activities is
discussed. and attendance is taken.
The Assessment Phase continues with a System -wide Requirements Review, wherein
PROFESSIONAL addresses those aspects of the City's Procurement System that have the
potential to affect all procurements. It includes an overall review of the organization of the City
and the adequacy of the policies and procedures to meet the federal procurement requirements.
This organizational structure may lead to a failure to meet basic procurement standards
resulting in a lack of competition; contract administration, duplicative or unnecessary purchases;
or no cost or price analysis. The System -wide Review Checklist that results from this step will
help to identify elements for further review during the Contract Review Phase, including any
potential organizational conflicts of interest.
Task 2: Contract Review
Without duplicating the 2010 and 2011 Procurement System Reviews, the Contract Review
Phase of the evaluation will consist of a detailed review of a sample of procurements,
supplemented, where necessary, with a small number of individually selected procurements of
special impact. The size and composition of the sample will be governed by the results of the
Assessment Phase. The sample will be taken from a City -prepared comprehensive list of
federally supported procurements that has been divided into: micro -purchases, small purchases,
RFPs, IFBs, and sole source procurements. Other categories are also itemized.
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Task 3: Reporting
Draft Report
A Draft Report containing a preliminary organizational assessment; process mapping, roles and
responsibility alignment; and a review of the City's procurement process, manuals, and methods
of ensuring FTA compliance will be issued at the conclusion of the Site Visit. The framework for
this report will be developed prior to the site visit, so a draft report can be issued quickly, similar
to the process used during Triennial reviews.
Professional Services Agreement
RFP 7284 Training & Procurement Review for FTA Funded Projects Page 9 of 28