HomeMy WebLinkAboutRFP - P914 TELEWORK ASSISTANCEREQUEST FOR PROPOSAL
CITY OF FORT COLLINS
PROPOSAL NUMBER P-914
TELEWORK ASSISTANCE PROGRAM
PROPOSAL DATE: NOVEMBER 18, 2003, 2:30 p.m.(our clock)
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REQUEST FOR PROPOSAL
CITY OF FORT COLLINS
TELEWORK ASSISTANCE PROGRAM
PROPOSAL NUMBER P-914
The City of Fort Collins is seeking proposals from consultants knowledgeable in developing a
marketable telework assistance program for the City of Fort Collins.
Written proposals, four (4) 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
2:30 p. m. (our clock), November 18, 2003. Proposal No. P-914. If delivered, they are to be
sent to 215 North Mason Street, 2nd Floor, Fort Collins, Colorado 80524. If mailed, the address
is P.O. Box 580, Fort Collins, 80522-0580.
A copy of the Proposal may be obtained as follows:
1. Call the Purchasing Fax-line, 970-416-2033 and follow the verbal instruction to
request document #30914. (The proposal number must be preceded by a 30
when using the Fax-line.)
2. Download the Bid from the Purchasing Webpage, Current Bids page, at:
www.fcgov.com/purchasing.
3. Come by Purchasing at 215 North Mason St., 2nd floor., Fort Collins, and
request a copy of the Bid.
Questions concerning the scope of the project should be directed to Sylvia Cranmer, Project
Manager at 970-224-6182.
Questions regarding proposals submittal or process should be directed to John Stephen, CPPO,
CPPB, Senior Buyer, (970) 221-6775.
Sales Prohibited/Conflict of Interest: No officer, employee, or member of City Council, shall have
a financial interest in the sale to the City of any real or personal property, equipment, material,
supplies or services where such officer or employee exercises directly or indirectly any decision-
making authority concerning such sale or any supervisory authority over the services to be
rendered. This rule also applies to subcontracts with the City. Soliciting or accepting any gift,
gratuity favor, entertainment, kickback or any items of monetary value from any person who has
or is seeking to do business with the City of Fort Collins is prohibited.
Collusive or sham proposals: Any proposal deemed to be collusive or a sham proposal will be
rejected and reported to authorities as such. Your authorized signature of this proposal assures
that such proposal is genuine and is not a collusive or sham proposal.
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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
Vendors: The City of Fort Collins Purchasing Division has implemented an on-line vendor
registration system. This system allows vendors to register, view and
update their business information and commodities. In the future,
vendors will also be able to receive Requests for Proposals (RFP’s)
through the on-line system. All vendors doing business with the City of
Fort Collins are requested to register.
The vendor registration system is accessible through the City of Fort Collins Purchasing
Department internet webpage at www.fcgov.com/purchasing.
The vendor registration form is located by
clicking https://secure2.fcgov.com/bso/login.jsp
Note the printable instruction pages link.
If you have any difficulty completing the registration process, please call the Purchasing Division
at (970)221-6775 for assistance.
Section 1.0: Proposal Requirements
1.1 General Description
The City of Fort Collins, Colorado, is requesting proposals from consultants
knowledgeable in developing a marketable telework assistance program for the City of
Fort Collins SmartTrips.
1.2 Proposal Submittal
The City of Fort Collins shall not reimburse any firm for costs incurred in the preparation
and presentation of their proposal.
Firms submitting proposals shall submit four (4) copies of the proposal with the following
information.
a. The name of the company and individual, responsible for the ongoing support of
the system.
b. References from four (4) or more current clients, preferably governmental entities
in Colorado, which have used this company for similar services, including a
contact name, address and phone number, and the kind of equipment or services
that were provided.
c. A written description of the proposed products and services as required below.
d. Pricing as requested.
e. The City of Fort Collins retains the right to reject any or all proposals and re-
solicit, if deemed to be in the best interests of the City of Fort Collins and reserves
the right to not interview the top 3 consultants.
f. The City of Fort Collins is exempt from all state taxation including state sales and
use taxes.
g. It is the intent of the City of Fort Collins to award this proposal based upon a fixed
fee plus reimbursable costs. Consultant will be required to sign a Professional
Services Agreement.
Section 2.0: Scope of Work
The tasks outlined below are based on The City of Fort Collins’ objectives in developing
a marketable telework assistance program. Successful completion of these tasks will be
determined by the City of Fort Collins acceptance and approval of the task products
listed in each section.
Task 1: Develop/Implement Five Successful Telework programs
1A - Initial meeting to develop plan
The consultant will meet with SmartTrips staff to finalize project objectives and tasks and
to establish timelines for task completion.
1B - Work with five companies in implementing successful telework programs
1C - Refine pilot programs
The consultant will conduct one-hour discussion forums or focus groups with teleworkers
and their managers separately to identify any problems and to fine-tune the program.
The consultant will conduct these meetings three months after the program
implementation.
1D - Products
• Finalized objectives, tasks, schedule
• Monthly status report on pilot programs
• Pilot resource materials
• Discussion forum results
Task 2: Develop Case Studies
2A - Develop evaluation methodology
The consultant will develop data collection instruments to survey teleworkers and
telemanagers before teleworking and six months after participating in the program. The
consultant will also develop an instrument to collect employer cost/benefit information
from pilot employers. Survey instrument will also satisfy data required by funders: Total
number of employees that work at companies with a telework program; percentage
(expressed as a decimal) of employees that telework; average one-way trip distance;
number of one-ways trips per day; average days per week that employees telework
instead of commuting; number of work weeks per year.
2B - Distribute and collect pre and post-surveys
The consultant will distribute and collect surveys at each pilot site. SmartTrips staff may
assist the consultant at SmartTrips’ option. The consultant will also distribute and collect
cost/benefit information from employers.
2C - Analyze and report evaluation data
The consultant will develop reports on each of the pilot studies, presenting results of the
surveys, cost/savings information and any other information collected from the pilot
employers. The consultant will also perform any necessary tabulation and analysis to
produce reports.
2D - Prepare case-study reports
The consultant will prepare a case-study report for each pilot employer location which
includes a summary of program implementation steps, impacts on the company, impacts
on employees, bottom-line results, testimonials and lessons learned. The purpose of the
case study reports is to showcase the business reason for implementing a telework
program.
2E - Products
• Survey instruments
• Cost/Savings logs
• Evaluation results
• Case studies
• Formal and informal presentation of pilot studies
Task 3: Develop and Conduct External Training Program
3A - Prepare training handbook and resources
The consultant will develop the training handbook and resources, including samples of
telework agreements, policies, selection survey and training materials.
3B - Presentation materials/training sessions
Training sessions will be coordinated in order to market the program to employers, to
train teleworkers and managers. Videos, overheads or a PowerPoint presentation will be
developed, which can be used in conjunction with the training sessions. The training
sessions will be offered two (2) times per year to local businesses for their teleworkers
and managers. The SmartTrips staff and others will provide the forum for organizing the
training sessions.
3C - Products
• Telework training program outline
• Telework training sessions (2)
• Training resources including a handbook with sample policies, surveys, and
training materials including videos, overheads or PowerPoint presentation
Task 4: Internal Training of SmartTrips Staff (this may be achieved through staff
observation)
4A - Prepare materials to train SmartTrips Telework “specialist”
The consultant will develop a package of materials to “train the trainers” that can sustain
the development of staff expertise on an on-gong basis.
4B - On the job training of SmartTrips staff
The consultant will involve SmartTrips staff in developing the training program and
performing the tasks associated with the pilot Telework programs.
4C - Products
• Training materials
• Field work with staff
Task 5: Develop a Marketing and Outreach Program to Promote Telework to
Employers
5A - Provide promotional events such as breakfasts, Chamber meetings, and
other group presentations. SmartTrips staff will help to facilitate these events.
5B - Develop content/resources for website (we’ll develop/maintain)
5C - Develop/provide content for promotional materials (we’ll produce) such as
brochure, flier, poster.
5D - Products
• Promotional events
• Website content/resources
• Content for brochures, fliers, or posters
Task 6: Track Results/Evaluation
6A - Tracking of results will include accounting of: number of companies
participating; number of teleworkers; organizations trained; VMT measurement;
exposure via mail, print media and phone; increase in teleworking activities as a result of
this program; website hits; and the results of the case study program.
Data available through SmartTrips will be collected by SmartTrips and collated by the
consultant.
6B - Development of on-going tracking mechanism for participation, for use with
future employers
6C - Develop a method of evaluating the success of programs
6D - Products
• Track and report results
• Write final report
REVIEW AND ASSESSMENT
Professional firms will be evaluated on the following criteria. These criteria will be the
basis for review of the written proposals and interview session.
The rating scale shall be from 1 to 5, with 1 being a poor rating, 3 being an average
rating, and 5 being an outstanding rating.
WEIGHTING
FACTOR
QUALIFICATION
STANDARD
2.0
Scope of Proposal
Does the proposal show an understanding of the
project objective, methodology to be used and
results that are desired from the project?
2.0
Assigned Personnel
Do the persons who will be working on the project
have the necessary skills? Are sufficient people of
the requisite skills assigned to the project?
1.0
Availability
Can the work be completed in the necessary time?
Can the target start and completion dates be met?
Are other qualified personnel available to assist in
meeting the project schedule if required? Is the
project team available to attend meetings as
required by the Scope of Work?
1.0
Motivation
Is the firm interested and are they capable of doing
the work in the required time frame?
2.0
Cost and
Work Hours
Do the proposed cost and work hours compare
favorably with the project Manager's estimate? Are
the work hours presented reasonable for the effort
required in each project task or phase?
2.0
Firm Capability
Does the firm have the support capabilities the
assigned personnel require? Has the firm done
previous projects of this type and scope?
Reference evaluation (Top Ranked Firm)
The project Manager will check references using the following criteria. The evaluation
rankings will be labeled Satisfactory/Unsatisfactory.
QUALIFICATION
STANDARD
Overall Performance
Would you hire this Professional again? Did
they show the skills required by this project?
Timetable
Was the original Scope of Work completed
within the specified time? Were interim
deadlines met in a timely manner?
Completeness
Was the Professional responsive to client
needs; did the Professional anticipate
problems? Were problems solved quickly and
effectively?
Budget
Was the original Scope of Work completed
within the project budget?
Job Knowledge
a) If a study, did it meet the Scope of Work?
b) If Professional administered a construction
contract, was the project functional upon
completion and did it operate properly?
Were problems corrected quickly and
effectively?
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PROFESSIONAL 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 _____, [insert either a corporation, a partnership
or an individual, doing business as____________], 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
_____ (_____) page[s], and incorporated herein by this reference.
2. The Work Schedule. [Optional] 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 _____ (_____) page[s], and incorporated herein by
this reference.
3. Time of Commencement and Completion of Services. The services to be
performed pursuant to this Agreement shall be initiated within _____ (_____) days
following execution of this Agreement. Services shall be completed no later than _____.
Time is of the essence. Any extensions of the time limit set forth above must be agreed
upon in writing by the parties hereto.
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
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fifteen (15) days prior to the termination date contained in said notice unless otherwise
agreed in writing by the parties.
All notices provided under this Agreement shall be effective when mailed, postage
prepaid and sent to the following addresses:
Professional:
City: With Copy to:
In the event of any such early termination by the City, the Professional shall be paid for
services rendered prior to the date of termination, subject only to the satisfactory
performance of the Professional's obligations under this Agreement. Such payment shall
be the Professional's sole right and remedy for such termination.
5. Design, Project Indemnity and Insurance Responsibility. The
Professional shall be responsible for the professional quality, technical accuracy, timely
completion and the coordination of all services rendered by the Professional, including
but not limited to designs, plans, reports, specifications, and drawings and shall, without
additional compensation, promptly remedy and correct any errors, omissions, or other
deficiencies. The Professional shall indemnify, save and hold harmless the 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 $500,000
combined single limits, and errors and omissions insurance in the amount of
___________.
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6. Compensation. [Use this paragraph or Option 1 below.] In consideration
of the services to be performed pursuant to this Agreement, the City agrees to pay
Professional a fixed fee in the amount of _____ ($_____) plus reimbursable direct costs.
All such fees and costs shall not exceed _____ ($_____). Monthly partial payments
based upon the Professional's billings and itemized statements are permissible. The
amounts of all such partial payments shall be based upon the Professional's City-verified
progress in completing the services to be performed pursuant hereto and upon the City's
approval of the Professional's actual reimbursable expenses. Final payment shall be
made following acceptance of the work by the City. Upon final payment, all designs,
plans, reports, specifications, drawings, and other services rendered by the Professional
shall become the sole property of the City.
6. Compensation. [Option 1] In consideration of the services to be
performed pursuant to this Agreement, the City agrees to pay Professional on a time and
reimbursable direct cost basis according to the following schedule:
Hourly billing rates: _____
Reimbursable direct costs: _____
with maximum compensation (for both Professional's time and reimbursable direct costs)
not to exceed _____ ($_____). Monthly partial payments based upon the Professional's
billings and itemized statements of reimbursable direct costs are permissible. The
amounts of all such partial payments shall be based upon the Professional's City-verified
progress in completing the services to be performed pursuant hereto and upon the City's
approval of the Professional's reimbursable direct costs. Final payment shall be made
following acceptance of the work by the City. Upon final payment, all designs, plans,
reports, specifications, drawings and other services rendered by the Professional shall
become the sole property of the City.
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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. Project Drawings. [Optional] Upon conclusion of the project and before
final payment, the Professional shall provide the City with reproducible drawings of the
project containing accurate information on the project as constructed. Drawings shall be
of archival quality, prepared on stable mylar base material using a non-fading process to
prove for long storage and high quality reproduction.
9. Monthly Report. Commencing thirty (30) days after the date of execution
of this Agreement and every thirty (30) days thereafter, Professional is required to
provide the City Representative with a written report of the status of the work with
respect to the Scope of Services, Work Schedule, and other material information.
Failure to provide any required monthly report may, at the option of the City, suspend the
processing of any partial payment request.
10. Independent Contractor. The services to be performed by Professional
are those of an independent contractor and not of an employee of the 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.
11. 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.
2/9/00
12. 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.
13. Default. Each and every term and condition hereof shall be deemed to be
a material element of this Agreement. In the event either party should fail or refuse to
perform according to the terms of this agreement, such party may be declared in default.
14. Remedies. In the event a party has been declared in default, such
defaulting party shall be allowed a period of ten (10) days within which to cure said
default. In the event the default remains uncorrected, the party declaring default may
elect to (a) terminate the Agreement and seek damages; (b) treat the Agreement as
continuing and require specific performance; or (c) avail himself of any other remedy at
law or equity. If the non-defaulting party commences legal or equitable actions against
the defaulting party, the defaulting party shall be liable to the non-defaulting party for the
non-defaulting party's reasonable attorney fees and costs incurred because of the
default.
15. Binding Effect. This writing, together with the exhibits hereto, constitutes
the entire agreement between the parties and shall be binding upon said parties, their
officers, employees, agents and assigns and shall inure to the benefit of the respective
survivors, heirs, personal representatives, successors and assigns of said parties.
16. Law/Severability. The laws of the State of Colorado shall govern the
construction, interpretation, execution and enforcement of this Agreement. In the event
any provision of this Agreement shall be held invalid or unenforceable by any court of
2/9/00
competent jurisdiction, such holding shall not invalidate or render unenforceable any
other provision of this Agreement.
17. Special Provisions. [Optional] Special provisions or conditions relating to
the services to be performed pursuant to this Agreement are set forth in Exhibit "_",
consisting of _____ (_____) page[s], attached hereto and incorporated herein by this
reference.
THE CITY OF FORT COLLINS, COLORADO
By: _________________________________
John F. Fischbach
City Manager
By: _________________________________
James B. O'Neill II, CPPO, FNIGP
Director of Purchasing & Risk Management
DATE: ______________________________
ATTEST:
_________________________________
City Clerk
APPROVED AS TO FORM:
_________________________________
Assistant City Attorney
[Insert Professional's name] or
[Insert Partnership Name] or
[Insert individual's name]
Doing business as ____[insert name of business]
By: __________________________________
Title: _______________________________
CORPORATE PRESIDENT OR VICE PRESIDENT
Date: _______________________________
ATTEST:
_________________________________ (Corporate Seal)
Corporate Secretary
Page 1
CITY OF FORT COLLINS
ADDENDUM No. 1
P-914
TELEWORK ASSISTANCE PROGRAM
SPECIFICATIONS AND CONTRACT DOCUMENTS
Description of RFP P-914 Telework Assistance Program
OPENING DATE: November 18, 2003, 2:30p.m. (Our Clock)
To all prospective bidders under the specifications and contract documents described above, the
following changes are hereby made.
Please see the attached Federal Forms.
If you have any questions please contact John Stephen, CPPO, Senior Buyer, at 970-221-6777.
RECEIPT OF THIS ADDENDUM MUST BE ACKNOWLEDGED BY A WRITTEN STATEMENT
ENCLOSED WITH THE BID/QUOTE STATING THAT THIS ADDENDUM HAS BEEN RECEIVED.
Page 2
FEDERAL REQUIREMENTS
TABLE OF CONTENTS
Buy America Requirements Page 2
Seismic Safety Requirements Page 2
Energy Conservation Requirements Page 2
Clean Water Requirements Page 2
Lobbying Page 2-3
Access to Records and Reports Page 3
Federal Changes Page 4-7
Clean Air Page 7
Recycled Products Page 8
Davis-Bacon Act Page 8-13
Contract Work Hours and Safety Standards Act Page 13-14
Copeland Anti-Kickback Act Page 14-15
No Government Obligation to Third Parties Page 15
Program Fraud and False or Fraudulent Statements Page 15
Termination Page 15-18
Governmentwide Debarment and Suspension
(Nonprocurement) Page 18-19
Privacy Act Page 19-20
Civil Rights Requirements Page 20-21
Breaches and Dispute Resolution Page 21
Patent and Rights in Data Page 21-24
Disadvantaged Business Enterprise (DBE) Page 24-26
Interests of Members of or Delegates to Congress Page 26
Prohibited Interest Page 26
ATTACHMENTS:
Attachment 1
Buy America Requirements 2 pages
Attachment 4
Certification Regarding Lobbying
Certification for Contracts, Grants, Loans,
and Cooperative Agreements 1 page
Page 3
BUY AMERICA REQUIREMENTS
49 U.S.C. 5323(j)49 CFR Part 661
The Buy America regulation, at 49 CFR 661.13, requires notification of the Buy America requirements
in FTA-funded contracts. The contractor agrees to comply with 49 U.S.C. 5323(j) and 49 CFR Part
661, which provide that Federal funds may not be obligated unless steel, iron, and manufactured
products used in FTA-funded projects are produced in the United States, unless a waiver has been
granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 CFR
661.7, and include final assembly in the United States for 15 passenger vans and 15 passenger
wagons produced by Chrysler Corporation, microcomputer equipment, software, and small purchases
(currently less than $100,000) made with capital, operating, or planning funds. Separate requirements
for rolling stock are set out at 5323(j)(2)(C) and 49 CFR 661.11. Rolling stock not subject to a general
waiver must be manufactured in the United States and have a 60 percent domestic content.
SEISMIC SAFETY REQUIREMENTS
42 U.S.C. 7701 et seq. 49 CFR Part 41
Seismic Safety - The contractor agrees that any new building or addition to an existing building will
be designed and constructed in accordance with the standards for Seismic Safety required in
Department of Transportation Seismic Safety Regulations 49 CFR Part 41 and will certify to compliance
to the extent required by the regulation. The contractor also agrees to ensure that all work performed
under this contract including work performed by a subcontractor is in compliance with the standards
required by the Seismic Safety Regulations and the certification of compliance issued on the project.
ENERGY CONSERVATION REQUIREMENTS
42 U.S.C. 6321 et seq. 49 CFR Part 18
The contractor agrees to comply with mandatory standards and policies relating to energy efficiency
which are contained in the state energy conservation plan issued in compliance with the Energy Policy
and Conservation Act.
CLEAN WATER REQUIREMENTS
33 U.S.C. 1251
Clean Water
(1) The Contractor agrees to comply with all applicable standards, orders or regulations issued
pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et 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.
LOBBYING
31 U.S.C. 135249 CFR Part 1949 CFR Part 20
Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure Act
of 1995, P.L. 104-65 [to be codified at 2 U.S.C.? 1601, et seq.]
- Contractors who apply or bid for an award of $100,000 or more shall file the certification required by
49 CFR part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and
has not used Federal appropriated funds to pay any person or organization for influencing or
attempting to influence an officer or employee of any agency, a member of Congress, officer or
employee of Congress, or an employee of a member of Congress in connection with obtaining any
Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the
name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on
its behalf with non-Federal funds with respect to that Federal contract, grant or award covered by 31
U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient.
APPENDIX A, 49 CFR PART 20--CERTIFICATION REGARDING LOBBYING
Page 4
Submit signed Attachment 4, Certification Regarding Lobbying, with Bid or Proposal.
Certification for Contracts, Grants, Loans, and Cooperative Agreements
ACCESS TO RECORDS AND REPORTS
49 U.S.C. 5325 18 CFR 18.36 49 CFR.633.17Access to Records - The following access to records
requirements apply to this Contract:
1. Where the Purchaser is not a State but a local government and is the FTA Recipient or a
subgrantee of the FTA Recipient in accordance with 49 C. F. R. 18.36(i), the Contractor agrees to
provide the Purchaser, the FTA Administrator, the Comptroller General of the Unites States or any of
their authorized representatives access to any books, documents, papers and records of the
Contractor which are directly pertinent to this contract for the purposes of making audits, examinations,
excerpts and transcriptions. Contractor also agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA
Administrator or his authorized representatives including any PMO Contractor access to Contractor's
records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1,
which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309
or 5311.
2. Not applicable
3. Where the Purchaser enters into a negotiated contract for other than a small purchase or under
the simplified acquisition threshold and is an institution of higher education, a hospital or other
non-profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance
with 49 C.F.R. 19.48, Contractor agrees to provide the Purchaser, FTA Administrator, the Comptroller
General of the Unites States or any of their duly authorized representatives with access to any books,
documents, papers and record of the Contractor which are directly pertinent to this contract for the
purposes of making audits, examinations, excerpts and transcriptions.
4. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in
accordance with 49 U.S.C. 5325(a) enters into a contract for a capital project or improvement (defined
at 49 U.S.C. 5302(a)1) through other than competitive bidding, the Contractor shall make available
records related to the contract to the Purchaser, the Secretary of Transportation and the Comptroller
General or any authorized officer or employee of any of them for the purposes of conducting an audit
and inspection.
5. The Contractor agrees to permit any of the foregoing parties to reproduce by any means
whatsoever or to copy excerpts and transcriptions as reasonably needed.
6. The Contractor agrees to maintain all books, records, accounts and reports required under this
contract for a period of not less than three years after the date of termination or expiration of this
contract, except in the event of litigation or settlement of claims arising from the performance of this
contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA Administrator,
the Comptroller General, or any of their duly authorized representatives, have disposed of all such
litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11).
FEDERAL CHANGES
49 CFR Part 18
Federal Changes - Contractor shall at all times comply with all applicable FTA regulations, policies,
procedures and directives, including without limitation those listed directly or by reference in the
Agreement (Form FTA MA (2) dated October, 1995) between Purchaser and FTA, as they may be
amended or promulgated from time to time during the term of this contract. Contractor's failure to so
comply shall constitute a material breach of this contract.
BONDING REQUIREMENTS
(for Purchasing Information only-does not need to be included in bids or RFPS)
Page 5
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:
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, certified 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. 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.
Bonding requirements flow down to the first tier contractors.
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 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.
Page 6
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 co9ntract 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
(iii) Two and one half million if the contract price is more than $5 million.
2. 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.
Performance and Payment Bonding Requirements (Non-Construction)
The Contractor may be required to obtain performance and payment bonds when necessary to
protect 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 contract 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 in
financially capable.
3. Substantial progress payments are made before delivery of end items starts.
4. Contracts are for dismantling, demolition, or removal of improvements.
Page 7
(b) When it is determined that a performance bond is required, the Contractor shall
be required to obtain performance bonds as fellows:
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.
(d) When it is determined that a payment bond is required, the Contractor shall be
required to obtain payment bonds as follows:
1. The penal amount of 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
(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
Page 8
PERCENT (100%) of the CONTRACT SUM, as adjusted (if at all).
CLEAN AIR
42 U.S.C. 7401 et seq
40 CFR 15.61
49 CFR Part 18
Clean Air
(1) The Contractor agrees to comply with all applicable standards, orders or regulations issued
pursuant to the Clean Air Act, as amended, 42 U.S.C.? 7401 et seq. . The Contractor agrees to
report each violation to the Purchaser and understands and agrees that the Purchaser will, in
turn, report each violation as required to assure notification to FTA and the appropriate EPA
Regional Office.
(2) The Contractor also agrees to include these requirements in each subcontract exceeding
$100,000 financed in whole or in part with Federal assistance provided by FTA.
Page 9
RECYCLED PRODUCTS
42 U.S.C. 6962
40 CFR Part 247
Executive Order 12873
Recovered Materials - The contractor agrees to comply with all the requirements of Section 6002 of
the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but
not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply
to the procurement of the items designated in Subpart B of 40 CFR Part 247.
DAVIS-BACON ACT
40 USC? 276a -276a-5 (1995)
29 CFR? 5 (1995)
The language in this clause is mandated under the DOL regulations at 29 C.F.R.? 5.5.)
(1) Minimum wages - (i) All laborers and mechanics employed or working upon the site of the
work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the
construction or development of the project), will be paid unconditionally and not less often than once
a week, and without subsequent deduction or rebate on any account (except such payroll deductions
as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR
part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at
time of payment computed at rates not less than those contained in the wage determination of the
Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual
relationship which may be alleged to exist between the contractor and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1
(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such
laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular
contributions made or costs incurred for more than a weekly period (but not less often than quarterly)
under plans, funds, or programs which cover the particular weekly period, are deemed to be
constructively made or incurred during such weekly period. Such laborers and mechanics shall be
paid the appropriate wage rate and fringe benefits on the wage determination for the classification of
work actually performed, without regard to skill, except as provided in 29 CFR Part 5.5(a)(4).
Laborers or mechanics performing work in more than one classification may be compensated at the
rate specified for each classification for the time actually worked therein: Provided, That the
employees payroll records accurately set forth the time spent in each classification in which work is
performed. The wage determination and the Davis-Bacon poster (WH-1 321) shall be posted at all
times by the contractor and its subcontractors at the site of the work in a prominent and accessible
place where it can be easily seen by the workers.
(ii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or
mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either
pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an
hourly cash equivalent thereof.
(iii) If the contractor does not make payments to a trustee or other third person, the contractor may
consider as part of the wages of any laborer or mechanic the amount of any costs reasonably
anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the
Secretary of Labor has found, upon the written request of the contractor, that the applicable standards
of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set
aside in a separate account assets for the meeting of obligations under the plan or program.
(iv) (A) The contracting officer shall require that any class of laborers or mechanics which is not
listed in the wage determination and which is to be employed under the contract shall be
classified in conformance with the wage determination. The contracting officer shall approve
an additional classification and wage rate and fringe benefits therefor only when the following
criteria have been met:
Page 10
(1) The work to be performed by the classification requested is not performed by a classification in
the wage determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable
relationship to the wage rates contained in the wage determination.
(B) If the contractor and the laborers and mechanics to be employed in the classification (if
known), or their representatives, and the contracting officer agree on the classification and
wage rate (including the amount designated for fringe benefits where appropriate), a report of
the action taken shall be sent by the contracting officer to the Administrator of the Wage and
Hour Division, Employment Standards Administration, Washington, DC 2021 0. The
Administrator, or an authorized representative, will approve, modify, or disapprove every
additional classification action within 30 days of receipt and so advise the contracting officer or
will notify the contracting officer within the 30-day period that additional time is necessary.
(C) In the event the contractor, the laborers or mechanics to be employed in the
classification or their representatives, and the contracting officer do not agree on the proposed
classification and wage rate (including the amount designated for fringe benefits, where
appropriate), the contracting officer shall refer the questions, including the views of all
interested parties and the recommendation of the contracting officer, to the Administrator for
determination. The Administrator, or an authorized representative, will issue a determination
with 30 days of receipt and so advise the contracting officer or will notify the contracting officer
within the 30-day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to
paragraphs (1)(iv) (B) or (C) of this section, shall be paid to all workers performing work in the
classification under this contract from the first day on which work is performed in the
classification.
(2) Withholding - The [ insert name of grantee ] shall upon its own action or upon written
request of an authorized representative of the Department of Labor withhold or cause to be
withheld from the contractor under this contract or any other Federal contract with the same
prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing
wage requirements, which is held by the same prime contractor, so much of the accrued
payments or advances as may be considered necessary to pay laborers and mechanics,
including apprentices, trainees, and helpers, employed by the contractor or any subcontractor
the full amount of wages required by the contract. In the event of failure to pay any laborer or
mechanic, including any apprentice, trainee, or helper, employed or working on the site of the
work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the
construction or development of the project), all or part of the wages required by the contract,
the [ insert name of grantee ] may, after written notice to the contractor, sponsor, applicant,
or owner, take such action as may be necessary to cause the suspension of any further
payment, advance, or guarantee of funds until such violations have ceased.
(3) Payrolls and basic records - (i) Payrolls and basic records relating thereto shall be
maintained by the contractor during the course of the work and preserved for a period of three
years thereafter for all laborers and mechanics working at the site of the work (or under the
United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or
development of the project). Such records shall contain the name, address, and social
security number of each such worker, his or her correct classification, hourly rates of wages
paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash
equivalents thereof of the types described in section 1 (b)(2)(B) of the Davis-Bacon Act), daily
and weekly number of hours worked, deductions made and actual wages paid. Whenever the
Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or
mechanic include the amount of any costs reasonably anticipated in providing benefits under a
Page 11
plan or program described in section 1 (b)(2)(B) of the Davis-Bacon Act, the contractor shall
maintain records which show that the commitment to provide such benefits is enforceable, that
the plan or program is financially responsible, and that the plan or program has been
communicated in writing to the laborers or mechanics affected, and records which show the
costs anticipated or the actual cost incurred in providing such benefits. Contractors employing
apprentices or trainees under approved programs shall maintain written evidence of the
registration of apprenticeship programs and certification of trainee programs, the registration
of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable
programs.
(ii) (A) The contractor shall submit weekly for each week in which any contract work is performed a
copy of all payrolls to the [insert name of grantee ] for transmission to the Federal Transit
Administration. The payrolls submitted shall set out accurately and completely all of the
information required to be maintained under 29 CFR part 5. This information may be submitted
in any form desired. Optional Form WH-347 is available for this purpose and may be
purchased from the Superintendent of Documents (Federal Stock Number 029-005-00014-1),
U.S. Government Printing Office, Washington, DC 20402. The prime contractor is responsible
for the submission of copies of payrolls by all subcontractors.
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by
the contractor or subcontractor or his or her agent who pays or supervises the payment of the
persons employed under the contract and shall certify the following:
(1) That the payroll for the payroll period contains the information required to be maintained under
29 CFR part 5 and that such information is correct and complete;
(2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on
the contract during the payroll period has been paid the full weekly wages earned, without
rebate, either directly or indirectly, and that no deductions have been made either directly or
indirectly from the full wages earned, other than permissible deductions as set forth in
Regulations, 29 CFR part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage rates and
fringe benefits or cash equivalents for the classification of work performed, as specified in the
applicable wage determination incorporated into the contract.
(C) The weekly submission of a properly executed certification set forth on the reverse side
of Optional Form WH-347 shall satisfy the requirement for submission of the
"Statement of Compliance" required by paragraph (3)(ii)(B) of this section.
(D) The falsification of any of the above certifications may subject the contractor or
subcontractor to civil or criminal prosecution under section 1 001 of title 1 8 and
section 231 of title 31 of the United States Code.
(iii The contractor or subcontractor shall make the records required under
paragraph (3)(i) of this section available for inspection, copying, or transcription by
authorized representatives of the Federal Transit Administration or the Department of
Labor, and shall permit such representatives to interview employees during working
hours on the job. If the contractor or subcontractor fails to submit the required records
or to make them available, the Federal agency may, after written notice to the
contractor, sponsor, applicant, or owner, take such action as may be necessary to
cause the suspension of any further payment, advance, or guarantee of funds.
Furthermore, failure to submit the required records upon request or to make such
records available may be grounds for debarment action pursuant to 29 CFR 5.12.
(4) Apprentices and trainees
Page 12
(i) Apprentices - Apprentices will be permitted to work at less than the predetermined rate for the
work they performed when they are employed pursuant to and individually registered in a bona
fide apprenticeship program registered with the U.S. Department of Labor, Employment and
Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship
Agency recognized by the Bureau, or if a person is employed in his or her first 90 days of
probationary employment as an apprentice in such an apprenticeship program, who is not
individually registered in the program, but who has been certified by the Bureau of
Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be
eligible for probationary employment as an apprentice. The allowable ratio of apprentices to
journeymen on the job site in any craft classification shall not be greater than the ratio
permitted to the contractor as to the entire work force under the registered program. Any
worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise
employed as stated above, shall be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed. In addition, any apprentice
performing work on the job site in excess of the ratio permitted under the registered program
shall be paid not less than the applicable wage rate on the wage determination for the work
actually performed. Where a contractor is performing construction on a project in a locality
other than that in which its program is registered, the ratios and wage rates (expressed in
percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's
registered program shall be observed. Every apprentice must be paid at not less than the rate
specified in the registered program for the apprentice's level of progress, expressed as a
percentage of the journeymen hourly rate specified in the applicable wage determination.
Apprentices shall be paid fringe benefits in accordance with the provisions of the
apprenticeship program. If the apprenticeship program does not specify fringe benefits,
apprentices must be paid the full amount of fringe benefits listed on the wage determination for
the applicable classification. If the Administrator of the Wage and Hour Division of the U.S.
Department of Labor determines that a different practice prevails for the applicable apprentice
classification, fringes shall be paid in accordance with that determination. In the event the
Bureau of Apprenticeship and Training, or a State Apprenticeship Agency recognized by the
Bureau, withdraws approval of an apprenticeship program, the contractor will no longer be
permitted to utilize apprentices at less than the applicable predetermined rate for the work
performed until an acceptable program is approved.
(ii) Trainees - Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less
than the predetermined rate for the work performed unless they are employed pursuant to and
individually registered in a program which has received prior approval, evidenced by formal
certification by the U.S. Department of Labor, Employment and Training Administration. The
ratio of trainees to journeymen on the job site shall not be greater than permitted under the
plan approved by the Employment and Training Administration. Every trainee must be paid at
not less than the rate specified in the approved program for the trainee's level of progress,
expressed as a percentage of the journeyman hourly rate specified in the applicable wage
determination. Trainees shall be paid fringe benefits in accordance with the provisions of the
trainee program. If the trainee program does not mention fringe benefits, trainees shall be
paid the full amount of fringe benefits listed on the wage determination unless the Administrator
of the Wage and Hour Division determines that there is an apprenticeship program associated
with the corresponding journeyman wage rate on the wage determination which provides for
less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee
rate who is not registered and participating in a training plan approved by the Employment and
Training Administration shall be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed. In addition, any trainee
performing work on the job site in excess of the ratio permitted under the registered program
shall be paid not less than the applicable wage rate on the wage determination for the work
actually performed. In the event the Employment and Training Administration withdraws
approval of a training program, the contractor will no longer be permitted to utilize trainees at
less than the applicable predetermined rate for the work performed until an acceptable
program is approved.
(iii) Equal employment opportunity - The utilization of apprentices, trainees and journeymen
Page 13
under this part shall be in conformity with the equal employment opportunity requirements of
Executive Order 1 1 246, as amended, and 29 CFR part 30.
(5) Compliance with Copeland Act requirements - The contractor shall comply with the requirements
of 29 CFR part 3, which are incorporated by reference in this contract.
(6) Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses contained
in 29 CFR 5.5(a)(1) through (10) and such other clauses as the Federal Transit Administration may by
appropriate instructions require, and also a clause requiring the subcontractors to include these
clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance
by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5.
(7) Contract termination: debarment - A breach of the contract clauses in 29 CFR 5.5 may be grounds
for termination of the contract, and for debarment as a contractor and a subcontractor as provided in
29 CFR 5.12.
(8) Compliance with Davis-Bacon and Related Act requirements - All rulings and interpretations of
the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by
reference in this contract.
(9) Disputes concerning labor standards - Disputes arising out of the labor standards provisions of
this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be
resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6,
and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its
subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their
representatives.
(10) Certification of eligibility
(i) By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or
firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government
contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a
Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.
CONTRACT WORK HOURS AND SAFETY STANDARDS ACT 40 U.S.C.? 827 -333 (1995)
29 C.F.R.? 5 (1995)
29 C.F.R.? 1926 (1995)
Pursuant to Section 102 (Overtime):
(1) Overtime requirements - No contractor or subcontractor contracting for any part of the contract
work which may require or involve the employment of laborers or mechanics shall require or permit any
such laborer or mechanic in any workweek in which he or she is employed on such work to work in
excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a
rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty
hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages - In the event of any violation of the
clause set forth in paragraph (1) of this section the contractor and any subcontractor responsible
therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be
liable to the United States for liquidated damages. Such liquidated damages shall be computed with
respect to each individual laborer or mechanic, including watchmen and guards, employed in violation
of the clause set forth in paragraph (1) of this section, in the sum of $ 10 for each calendar day on
which such individual was required or permitted to work in excess of the standard workweek of forty
Page 14
hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this
section.
(3) Withholding for unpaid wages and liquidated damages - The City of Fort Collins shall upon its
own action or upon written request of an authorized representative of the Department of Labor withhold
or cause to be withheld, from any moneys payable on account of work performed by the contractor or
subcontractor under any such contract or any other Federal contract with the same prime contractor,
or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act,
which is held by the same prime contractor, such sums as may be determined to be necessary to
satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as
provided in the clause set forth in paragraph (2) of this section.
(4) Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses set forth
in this section and also a clause requiring the subcontractors to include these clauses in any lower tier
subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower
tier subcontractor with the clauses set forth in this section.
(5) Payrolls and basic records - (i) Payrolls and basic records relating thereto shall be maintained by
the contractor during the course of the work and preserved for a period of three years thereafter for all
laborers and mechanics working at the site of the work (or under the United States Housing Act of
1937, or under the Housing Act of 1949, in the construction or development of the project). Such
records shall contain the name, address, and social security number of each such worker, his or her
correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated
for bona fide fringe benefits or cash equivalents thereof of the types described in section 1 (b)(2)(B) of
the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages
paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any
laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits
under a plan or program described in section 1 (b)(2)(B) of the Davis-Bacon Act, the contractor shall
maintain records which show that the commitment to provide such benefits is enforceable, that the plan
or program is financially responsible, and that the plan or program has been communicated in writing
to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost
incurred in providing such benefits. Contractors employing apprentices or trainees under approved
programs shall maintain written evidence of the registration of apprenticeship programs and
certification of trainee programs, the registration of the apprentices and trainees, and the ratios and
wage rates prescribed in the applicable programs.
Section 107 (OSHA):
Contract Work Hours and Safety Standards Act
(i) The Contractor agrees to comply with section 107 of the Contract t Work Hours and Safety
Standards Act, 40 U.S.C. section 333, and applicable DOL regulations, " Safety and Health
Regulations for Construction " 29 C.F.R. Part 1926. Among other things, the Contractor agrees that it
will not require any laborer or mechanic to work in unsanitary, hazardous, or dangerous surroundings
or working conditions.
(ii) Subcontracts - The Contractor also agrees to include the requirements of this section in each
subcontract. The term "subcontract" under this section is considered to refer to a person who agrees
to perform any part of the labor or material requirements of a contract for construction, alteration or
repair. A person who undertakes to perform a portion of a contract involving the furnishing of supplies
or materials will be considered a "subcontractor" under this section if the work in question involves the
performance of construction work and is to be performed: (1) directly on or near the construction site,
or (2) by the employer for the specific project on a customized basis. Thus, a supplier of materials
which will become an integral part of the construction is a "subcontractor' if the supplier fabricates or
assembles the goods or materials in question specifically for the construction project and the work
involved may be said to be construction activity. If the goods or materials in question are ordinarily
sold to other customers from regular inventory, the supplier is not a "subcontractor." The requirements
of this section do not apply to contracts or subcontracts for the purchase of supplies or materials or
Page 15
articles normally available on the open market.
COPELAND ANTI-KICKBACK ACT
40 U.S.C. ? 276c (1995)
29 C.F.R. ? 3 (1995)
29 C.F.R. ? 5 (1995)
3.1 of the Copeland Act makes it clear that the purpose of the Act is to assist in "the enforcement of the
minimum wage provisions of the Davis- Bacon Act." In keeping with this intent DOL has included a
section on the Copeland Act in the mandatory language of the Davis-Bacon provisions. The language
can be found at ?5.5(a)(5) of the Davis-Bacon model clauses and reads as follows:
NO GOVERNMENT OBLIGATION TO THIRD PARTIES No Obligation by the Federal Government.
(1) The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence by the
Federal Government in or approval of the solicitation or award of the underlying contract, absent the
express written consent by the Federal Government, the Federal Government is not a party to this
contract and shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or any
other party (whether or not a party to that contract) pertaining to any matter resulting from the
underlying contract.
(2) The Contractor agrees to include the above clause in each subcontract financed in whole or in part
with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified,
except to identify the subcontractor who will be subject to its provisions.
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS
AND RELATED ACTS
31 U.S.C. 3801 et seq.
49 CFR Part 31 18 U.S.C. 1001
49 U.S.C. 5307
Program Fraud and False or Fraudulent Statements or Related Acts.
(1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as
amended, 31 U.S.C.? 3801 et seq. and U.S. DOT regulations, "Program Fraud Civil Remedies," 49
C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying
contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made,
it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted
project for which this contract work is being performed. In addition to other penalties that may be
applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false,
fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves
the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to
the extent the Federal Government deems appropriate.
(2) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or
fraudulent claim, statement, submission, or certification to the Federal Government under a contract
connected with a project that is financed in whole or in part with Federal assistance originally awarded
by FTA under the authority of 49 U.S.C.? 5307, the Government reserves the right to impose the
penalties of 18 U.S.C.? 1001 and 49 U.S.C.? 5307(n)(1) on the Contractor, to the extent the Federal
Government deems appropriate.
(3) The Contractor agrees to include the above two clauses in each subcontract financed in whole or in
part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be
modified, except to identify the subcontractor who will be subject to the provisions.
TERMINATION
49 U.S.C. Part 18
FTA Circular 4220.1 D
Page 16
a. Termination for Convenience (General Provision) The City of Fort Collins may terminate this
contract, in whole or in part, at any time by written notice to the Contractor when it is in the
Government's best interest. The Contractor shall be paid its costs, including contract close-out costs,
and profit on work performed up to the time of termination. The Contractor shall promptly submit its
termination claim to the City of Fort Collins to be paid the Contractor. If the Contractor has any
property in its possession belonging to the City of Fort Collins, the Contractor will account for the
same, and dispose of it in the manner the City of Fort Collins directs.
b. Termination for Default [Breach or Cause] (General Provision) If the Contractor does not deliver
supplies in accordance with the contract delivery schedule, or, if the contract is for services, the
Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to comply
with any other provisions of the contract, the City of Fort Collins may terminate this contract for default.
Termination shall be effected by serving a notice of termination on the contractor setting forth the
manner in which the Contractor is in default. The contractor will only be paid the contract price for
supplies delivered and accepted, or services performed in accordance with the manner of performance
set forth in the contract.
If it is later determined by the City of Fort Collins that the Contractor had an excusable reason for not
performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the control of
the Contractor, the City of Fort Collins, after setting up a new delivery of performance schedule, may
allow the Contractor to continue work, or treat the termination as a termination for convenience.
c. Opportunity to Cure (General Provision) The City of Fort Collins in its sole discretion may, in the
case of a termination for breach or default, allow the Contractor [an appropriately short period of time]
in which to cure the defect. In such case, the notice of termination will state the time period in which
cure is permitted and other appropriate conditions.
If Contractor fails to remedy to the City of Fort Collins' satisfaction the breach or default or any of
the terms, covenants, or conditions of this Contract within [ten (1 0) days] after receipt by Contractor or
written notice from the City of Fort Collins setting forth the nature of said breach or default, the City of
Fort Collins shall have the right to terminate the Contract without any further obligation to Contractor.
Any such termination for default shall not in any way operate to preclude the City of Fort Collins from
also pursuing all available remedies against Contractor and its sureties for said breach or default.
d. Waiver of Remedies for any Breach In the event that the City of Fort Collins elects to waive its
remedies for any breach by Contractor of any covenant, term or condition of this Contract, such waiver
by the City of Fort Collins shall not limit the City of Fort Collins's remedies for any succeeding breach of
that or of any other term, covenant, or condition of this Contract.
e. Termination for Default (Supplies and Service) If the Contractor fails to deliver supplies or to
perform the services within the time specified in this contract or any extension or if the Contractor fails
to comply with any other provisions of this contract, the City of Fort Collins may terminate this contract
for default. The City of Fort Collins shall terminate by delivering to the Contractor a Notice of
Termination specifying the nature of the default. The Contractor will only be paid the contract price for
supplies delivered and accepted, or services performed in accordance with the manner or performance
set forth in this contract.
If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in
default, the rights and obligations of the parties shall be the same as if the termination had been issued
for the convenience of the Recipient.
f. Termination for Default (Transportation Services) If the Contractor fails to pick up the
commodities or to perform the services, including delivery services, within the time specified in this
contract or any extension or if the Contractor fails to comply with any other provisions of this contract,
the City of Fort Collins may terminate this contract for default. The City of Fort Collins shall terminate
by delivering to the Contractor a Notice of Termination specifying the nature of default. The Contractor
will only be paid the contract price for services performed in accordance with the manner of
Page 17
performance set forth in this contract.
If this contract is terminated while the Contractor has possession of Recipient goods, the Contractor
shall, upon direction of the City of Fort Collins, protect and preserve the goods until surrendered to the
Recipient or its agent. The Contractor and the City of Fort Collins shall agree on payment for the
Preservation and protection of goods. Failure to agree on an amount will be resolved under the
Dispute clause.
If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in
default, the rights and obligations of the parties shall be the same as if the termination had been issued
for the convenience of the City of Fort Collins.
g. Termination for Default (Construction) If the Contractor refuses or fails to prosecute the work or
any separable part, with the diligence that will insure its completion within the time specified in this
contract or any extension or fails to complete the work within this time, or if the Contractor fails to
comply with any other provisions of this contract, the City of Fort Collins may terminate this contract for
default. The City of Fort Collins shall terminate by delivering to the Contractor a Notice of Termination
specifying the nature of the default. In this event, the Recipient may take over the work and compete it
by contract or otherwise, and may take possession of and use any materials, appliances, and plant on
the work site necessary for completing the work. The Contractor and its sureties shall be liable for any
damage to the Recipient resulting from the Contractor's refusal or failure to complete the work within
specified time, whether or not the Contractor's right to proceed with the work is terminated. This
liability includes any increased costs incurred by the Recipient in completing the work.
The Contractor's right to proceed shall not be terminated nor the Contractor changed with damages under
this clause if-
1. the delay in completing the work arises from unforeseeable causes beyond the control and without
the fault or negligence of the Contractor. Examples of such causes include: acts of God, acts of the
Recipient, acts of another Contractor in the performance of a contract with the Recipient, epidemics,
quarantine restrictions, strikes, freight embargoes; and
2. the contractor, within [1 0] days from the beginning of any delay, notifies the City of Fort Collins in
writing of the causes of delay. If in the judgment of the City of Fort Collins, the delay is excusable, the
time for completing the work shall be extended. The judgment of the City of Fort Collins shall be final
and conclusive on the parties, but subject to appeal under the Disputes clauses.
If, after termination of the Contractor's right to proceed, it is determined that the Contractor was not in
default, or that the delay was excusable, the rights and obligations of the parties will be the same as if
the termination had been issued for the convenience of the Recipient.
h. Termination for Convenience or Default (Architect and Engineering) The City of Fort Collins
may terminate this contract in whole or in part, for the Recipient's convenience or because of the
failure of the Contractor to fulfill the contract obligations. The City of Fort Collins shall terminate by
delivering to the Contractor a Notice of Termination specifying the nature, extent, and effective date of
the termination. Upon receipt of the notice, the Contractor shall
(1) immediately discontinue all services affected (unless -the notice directs otherwise),
and
(2) deliver to the Contracting Officer all data, drawings, specifications, reports, estimates,
summaries, and other information and materials accumulated in performing this
contract, whether completed or in process.
If the termination is for the convenience of the Recipient, the Contracting Officer shall make an
Equitable adjustment in the contract price but shall allow no anticipated profit on unperformed services.
If the termination is for failure of the Contractor to fulfill the contract obligations, the Recipient may
Page 18
complete the work by contact or otherwise and the Contractor shall be liable for any additional cost
incurred by the Recipient.
If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in
default, the rights and obligations of the parties shall be the same as if the termination had been issued
for the convenience of the Recipient.
i. Termination for Convenience of Default (Cost-Type Contracts) The City of Fort Collins may
terminate this contract, or any portion of it, by serving a notice or termination on the Contractor. The
notice shall state whether the termination is for convenience of the City of Fort Collins or for the default
of the Contractor. If the termination is for default, the notice shall state the manner in which the
contractor has failed to perform the requirements of the contract. The Contractor shall account for any
property in its possession paid for from funds received from the City of Fort Collins, or property
supplied to the Contractor by the City of Fort Collins. If the termination is for default, the City of Fort
Collins may fix the fee, if the contract provides for a fee, to be paid the contractor in proportion to the
value, if any, of work performed up to the time of termination. The Contractor shall promptly submit its
termination claim to the City of Fort Collins and the parties shall negotiate the termination settlement to
be paid the Contractor.
If the termination is for the convenience of the City of Fort Collins, the Contractor shall be paid its
Contract close-out costs, and a fee, if the contract provided for payment of a fee, in proportion to the
Work performed up to the time of termination.
If, after serving a notice of termination for default, the City of Fort Collins determines that the Contractor
has an excusable reason for not performing, such as strike, fire, flood, events which are not the fault of
and are beyond the control of the contractor, the City of Fort Collins, after setting up a new work
schedule, may allow the Contractor to continue work, or treat the termination as a termination for
convenience.
GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) 49 CFR Part 29
Executive Order 12549
Instructions for Certification
1. By signing and submitting this bid or proposal, the prospective lower tier participant is
providing the signed certification set out below .
2. The certification in this clause is a material representation of fact upon which reliance was placed when
this transaction was entered into. If it is later determined that the prospective lower tier participant
knowingly rendered an erroneous certification, in addition to other remedies available to the Federal
Government, the City of Fort Collins may pursue available remedies, including suspension and/or
debarment.
3. The prospective lower tier participant shall provide immediate written notice to the City of Fort Collins if
at any time the prospective lower tier participant learns that its certification was erroneous when
submitted or has become erroneous by reason of changed circumstances.
4. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction,"
:"participant," "persons," "lower tier covered transaction," "principal," "proposal," and "voluntarily
excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections
of rules implementing Executive Order 12549 [49 CFR Part 29]. You may contact the City of Fort
Collins for assistance in obtaining a copy of those regulations.
5. The prospective lower tier participant agrees by submitting this proposal that, should the proposed
covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction
with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from
participation in this covered transaction, unless authorized in writing by the City of Fort Collins.
Page 19
6. The prospective lower tier participant further agrees by submitting this proposal that it will include the
clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -
Lower Tier Covered Transaction", without modification, in all lower tier covered transactions and in all
solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective participant in a
lower tier covered transaction that it is not debarred, suspended, ineligible, or voluntarily excluded from
the covered transaction, unless it knows that the certification is erroneous, A participant may decide
the method and frequency by which it determines the eligibility of its principals. Each participant may,
but is not required to, check the Nonprocurement List issued by U.S. General Service Administration.
8. Nothing contained in the foregoing shall be construed to require establishment of system of records in
order to render in good faith the certification required by this clause. The knowledge and information
of a participant is not required to exceed that which is normally possessed by a prudent person in the
ordinary course of business dealings.
9. Except for transactions authorized under Paragraph 5 of these instructions, if a participant in a covered
transaction knowingly enters into a lower tier covered transaction with a person who is suspended,
debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to all
remedies available to the Federal Government, the City of Fort Collins may pursue available remedies
including suspension and/or debarment.
"Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier
Covered Transaction"
(1) The prospective lower tier participant certifies, by submission of this bid or proposal, that neither it nor
its "principals" [as defined at 49 C.F.R.? 29.105(p)] is presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any
Federal department or agency.
(2) When the prospective lower tier participant is unable to certify to the statements in this certification,
such prospective participant shall attach an explanation to this proposal.
PRIVACY ACT
5 U.S.C. 552
When a grantee maintains files on drug and alcohol enforcement activities for FTA, and those files are
organized so that information could be retrieved by personal identifier, the Privacy Act requirements
apply to all contracts. The Federal Privacy Act requirements flow down to each third party contractor
and their contracts at every tier.
(1) The Contractor agrees to comply with, and assures the compliance of its employees with, the
information restrictions and other applicable requirements of the Privacy Act of 1974, 5 U.S.C.? 552a.
Among other things, the Contractor agrees to obtain the express consent of the Federal Government
before the Contractor or its employees operate a system of records on behalf of the Federal
Government. The Contractor understands that the requirements of the Privacy Act, including the civil
and criminal penalties for violation of that Act, apply to those individuals involved, and that failure to
comply with the terms of the Privacy Act may result in termination of the underlying contract.
(2) The Contractor also agrees to include these requirements in each subcontract to administer any
system of records on behalf of the Federal Government financed in whole or in part with Federal
assistance provided by FTA.
CIVIL RIGHTS REQUIREMENTS
29 U.S.C.? 623, 42 U.S.C.? 2000
42 U.S.C.? 6102, 42 U.S.C.? 12112
42 U.S.C.? 12132, 49 U.S.C.? 5332
Page 20
29 CFR Part 1630, 41 CFR Parts 60 et seq.
Civil Rights - The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C.? 2000d,
section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. ? 6102, section 202 of the
Americans with Disabilities Act of 1990, 42 U.S.C.? 12132, and Federal transit law at 49 U.S.C.? 5332,
the Contractor agrees that it will not discriminate against any employee or applicant for employment
because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees
to comply with applicable Federal implementing regulations and other implementing requirements FTA
may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity requirements apply to
the underlying contract:
(a) Race, Color, Creed,. National Origin, Sex - In accordance with Title VI I of the Civil Rights Act, as
amended, 42 U.S.C.? 2000e, and Federal transit laws at 49 U.S.C.? 5332, the Contractor agrees to
comply with all applicable equal employment opportunity requirements of U.S. Department of Labor
(U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor," 41 C.F.R. Parts 60 et = ., (which implement Executive Order No.
11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending
Executive Order 1 1 246 Relating to Equal Employment Opportunity," 42 U.S.C.? 2000e note), and with
any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the
future affect construction activities undertaken in the course of the Project. The Contractor agrees to
take affirmative action to ensure that applicants are employed, and that employees are treated during
employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall
include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment
or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any
implementing requirements FTA may issue.
(b) Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C.? 623 and Federal transit law at 49 U.S.C.? 5332, the Contractor agrees to refrain
from discrimination against present and prospective employees for reason of age. In addition, the
Contractor agrees to comply with any implementing requirements FTA may issue.
(c) Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42
U.S.C.? 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal
Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of
the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with
disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may
issue.
(3) The Contractor also agrees to include these requirements in each subcontract financed in whole
or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected
parties.
BREACHES AND DISPUTE RESOLUTION. 49 CFR Part 18
FTA Circular 4220.1 D
Pick applicable clause:
Disputes - Disputes arising in the performance of this Contract which are not resolved by agreement
of the parties shall be decided in writing by the authorized representative of the City of Fort Collins's
[title of employee]. This decision shall be final and conclusive unless within [ten (10)] days from the
date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the [title of
employee]. In connection with any such appeal, the Contractor shall be afforded an opportunity to be
heard and to offer evidence in support of its position. The decision of the [title of employee] shall be
Page 21
binding upon the Contractor and the Contractor shall abide be the decision.
Performance During Dispute - Unless otherwise directed by the City of Fort Collins, Contractor shall
continue performance under this Contract while matters in dispute are being resolved.
Claims for Damages - Should either party to the Contract suffer injury or damage to person or
property because of any act or omission of the party or of any of his employees, agents or others for
whose acts he is legally liable, a claim for damages 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 of Fort Collins and the Contractor arising out of or relating to this
agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of
competent jurisdiction within the State in which the City of Fort Collins is located. and remedies
available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and
remedies otherwise imposed or available by law. No action or failure to act by the City of Fort Collins,
(Architect) or Contractor shall constitute a waiver of any right or duty afforded any of them under the
Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any
breach thereunder, except as may be specifically agreed in writing.
PATENT AND RIGHTS IN DATA
37 CFR Part 401
49 CFR Parts 18 and 19
The FTA patent clause is substantially similar to the text of 49 C.F.R. Part 19, Appendix A, Section 5, but the
rights in data clause reflects FTA objectives. For patent rights, FT/k is governed by Federal law and
regulation. For data rights, the text on copyrights is insufficient to meet FTA's purposes for awarding
research grants. This model clause, with larger rights ,as a standard, is proposed with the
understanding that this standard could be modified to FTA's needs.
CONTRACTS INVOLVING EXPERIMENTAL, DEVELOPMENTAL, OR RESEARCH WORK.
A. Rights in Data - This following requirements apply to each contract involving experimental,
developmental or research work:
(1) The term "subject data" used in this clause means recorded information, whether or not
copyrighted, that is delivered or specified to be delivered under the contract. The term includes
graphic or pictorial delineation in media such as drawings or photographs; text in specifications or
related performance or design-type documents; machine forms such as punched cards, magnetic tape,
or computer memory printouts; and information retained in computer memory. Examples include, but
are not limited to: computer software, engineering drawings and associated lists, specifications,
standards, process sheets, manuals, technical reports, catalog item identifications, and related
information. The term "subject data" does not include financial reports, cost analyses, and similar
information incidental to contract administration.
(2) The following restrictions apply to all subject data first produced in the performance of the
contract to which this Attachment has been added:
(a) Except for its own internal use, the Purchaser or Contractor may not publish or reproduce
subject data in whole or in part, or in any manner or form, nor may the Purchaser or Contractor
authorize others to do so, without the written consent of the Federal Government, until such time as
the Federal Government may have either released or approved the release of such data to the
public; this restriction on publication, however, does not apply to any contract with an academic
institution. (b) In accordance with 49 C.F.R.? 18.34 and 49 C.F.R.? 19.36, the Federal Government
reserves a royalty-free, non-exclusive and irrevocable license to reproduce, publish, or otherwise
use, and to authorize others to use, for "Federal Government purposes," any subject data or
copyright described in subsections (2)(b)l and (2)(b)2 of this clause below. As used in the previous
sentence, "for Federal Government purposes," means use only for the direct purposes of the Federal
Page 22
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.
(c) When FTA awards Federal assistance for experimental, developmental, or research work, it is
FTA's general intention to increase transportation knowledge available to the public, rather than to
restrict the benefits resulting from the work to participants in that work. Therefore, unless FTA
determines otherwise, the Purchaser and the Contractor performing experimental, developmental, or
research work required by the underlying contract to which this Attachment is added agrees to permit
FTA to make available to the public, either FTA's license in the copyright to any subject data
developed in the course of that contract, or a copy of the subject data first produced under the
contract for which a copyright has not been obtained. If the experimental, developmental, or
research work, which is the subject of the underlying contract, is not completed for any reason
whatsoever, all data developed under that contract shall become subject data as defined in
subsection (a) of this clause and shall be delivered as the Federal Government may direct. This
subsection (c) , however, does not apply to adaptations of automatic data processing equipment or
programs for the Purchaser or Contractor's use whose costs are financed in whole or in part with
Federal assistance provided by FTA for transportation capital projects.
(d) Unless prohibited by state law, upon request by the Federal Government, the Purchaser and
the Contractor agree to indemnify, save, and hold harmless the Federal Government, its officers,
agents, and employees acting within the scope of their official duties against any liability, including
costs and expenses, resulting from any willful or intentional violation by the Purchaser or Contractor
of proprietary rights, copyrights, or right of privacy, arising out of the publication, translation,
reproduction, delivery, use, or disposition of any data furnished under that contract. Neither the
Purchaser nor the Contractor shall be required to indemnify the Federal Government for any such
liability arising out of the wrongful act of any employee, official, or agents of the Federal Government.
(e) Nothing contained in this clause on rights in data shall imply a license to the Federal
Government under any patent or be construed as affecting the scope of any license or other right
otherwise granted to the Federal Government under any patent.
(f) Data developed by the Purchaser or Contractor and financed entirely without using Federal
assistance provided by the Federal Government that has been incorporated into work required by
the underlying contract to which this Attachment has been added is exempt from the requirements of
subsections (b), (c), and (d) of this clause , provided that the Purchaser or Contractor identifies that
data in writing at the time of delivery of the contract work.
(g) Unless FTA determines otherwise, the Contractor agrees to include these requirements in each
subcontract for experimental, developmental, or research work financed in whole or in part with
Federal assistance provided by FTA.
(3) Unless the Federal Government later makes a contrary determination in writing, irrespective of
the Contractor's status (i.e. , a large business, small business, state government or state
instrumentality, local government, nonprofit organization, institution of higher education, individual,
etc.), the Purchaser and the Contractor agree to take the necessary actions to provide, through FTA,
those rights in that invention due the Federal Government as described in U.S. 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.
Page 23
B. Patent Rights - This following requirements apply to each contract involving experimental,
developmental, or research work:
(1) General - If any invention, improvement, or discovery is conceived or first actually reduced to
practice in the course of or under the contract to which this Attachment has been added, and
that invention, improvement, or discovery is patentable under the laws of the United States of
America or any foreign country, the Purchaser and Contractor agree to take actions necessary
to provide immediate notice and a detailed report to the party at a higher tier until FTA is
ultimately notified.
(2) Unless the Federal Government later makes a contrary determination in writing, irrespective of
the Contractor's status (a large business, small business, state government or state
instrumentality, local government, nonprofit organization, institution of higher education,
individual), the Purchaser and the Contractor agree to take the necessary actions to provide,
through FTA, those rights in that invention due the Federal Government as described in U.S.
Department of Commerce regulations, "Rights to Inventions Made by Nonprofit Organizations
and Small Business Firms Under Government Grants, Contracts and Cooperative
Agreements," 37 C.F.R. Part 401.
(3) The Contractor also agrees to include the requirements of this clause in each subcontract for
experimental, developmental, or research work financed in whole or in part with Federal
assistance provided by FTA.
DISADVANTAGED BUSINESS ENTERPRISE (DBE) 49 CFR Part 23
DBE Policy- It is the policy of the Department of Transportation, hereinafter referred to as DOT that
Disadvantaged Business Enterprises, as defined in 49 CFR Part 23, shall have the maximum
opportunity to participate in the performance of contracts financed in whole or in part with Federal
funds under this Agreement. Consequently, the DBE requirements of 49 CFR Part 23 apply to this
agreement.
DBE Obligation - The grantees and its vendors agree to ensure that DBEs as defined in 409 CFR Part
23, have the maximum opportunity to participate in the performance of contracts and subcontracts
financed in whole or in part with Federal funds provided under this Agreement. In this regard, all
grantees and vendors shall take all necessary and reasonable steps in accordance with 49 CFR Part
23 to ensure that the DBE have the maximum opportunity and shall not discriminate on the basis of
race, color, national origin, or sex in the award and performance of DOT-assisted contracts.
Disadvantaged Business Enterprise Provision
1. The Federal Fiscal Year goal has been set by the City of Fort Collins in an attempt to match projected
procurements with available qualified disadvantaged businesses. the City of Fort Collins goals for
budgeted service contracts, bus parts, and other material and supplies for Disadvantaged Business
Enterprises have been established by the City of Fort Collins as set forth by the Department of
Transportation Regulations 49 C.F.R. Part 23, March 31, 1980, and amended by Section 106(c) of the
Surface Transportation Assistance Act of 1987, and is considered pertinent to any contract resulting
from this request for proposal.
If a specific DBE goal is assigned to this contract, it will be clearly stated in the Special Specifications,
and if the contractor is found to have failed to exert sufficient, reasonable, and good faith efforts to
involve DBEs in the work provided, the City of Fort Collins may declare the Contractor noncompliant
and in breach of contract. If a goal is not stated in the Special Specifications, it will be understood that
no specific goal is assigned to this contract.
(a) Policy - It is the policy of the Department of Transportation and the City of Fort Collins that
Disadvantaged Business Enterprises, as defined in 49 CFR Part 23, and as amended in
Section 106(c) of the Surface Transportation and Uniform Relocation Assistance Act of 1987,
Page 24
shall have the maximum opportunity to participate in the performance of Contract financed in
whole or in part with federal funds under this Agreement. Consequently, the DBE
requirements of 49 CFR Part 23 and Section 106(c) of the STURAA of 1987, apply to this
Contract.
The Contractor agrees to ensure that DBEs as defined in 49 CFR Part 23 and Section 106(c) of the
STURAA of 1987, have the maximum opportunity to participate in the whole or in part with federal funds
provided under this Agreement. In this regard, the Contractor shall take all necessary and reasonable
steps in accordance with the regulations to ensure that DBEs have the maximum opportunity to
compete for and perform subcontracts. The Contractor shall not discriminate on the basis of race,
color, national origin, religion, sex, age or physical handicap in the award and performance of
subcontracts.
It is further the policy of the City of Fort Collins to promote the development and increase the
participation of businesses owned and controlled by disadvantaged. DBE involvement in all phases of
the City of Fort Collins procurement activities are encouraged.
(b) DBE obligation - The Contractor and its subcontractors agree to ensure that disadvantaged
businesses have the maximum opportunity to participate in the performance of contracts and
subcontracts financed in whole or in part with federal funds provided under the Agreement. In that
regard, all Contractors and subcontractors shall take all necessary and reasonable steps in
accordance with 49 CFR Part 23 as amended, to ensure that minority business enterprises have the
maximum opportunity to compete for and perform contracts.
(c) Where the Contractor is found to have failed to exert sufficient reasonable and good faith
efforts to involve DBEs in the work provided, the City of Fort Collins may declare the contractor
noncompliant and in breach of contract.
(d) The Contractor will keep records and documents for a reasonable time following performance
of this contract to indicate compliance with the City of Fort Collins DBE program. These records and
documents will be made available at reasonable times and places for inspection by any authorized
representative of the City of Fort Collins and will be submitted to the City of Fort Collins upon request.
(e) the City of Fort Collins will provide affirmative assistance as may be reasonable and necessary
to assist the prime contractor in implementing their programs for DBE participation. The assistance
may include the following upon request:
* Identification of qualified DBE
* Available listing of Minority Assistance Agencies
* Holding bid conferences to emphasize requirements
2. DBE Program Definitions, as used in the contract:
(a) Disadvantaged business "means a small business concern":
i. Which is at least 51 percent owned by one or more socially and economically
disadvantaged individuals, or, in the case of any publicly owned business, at least 51 percent
of the stock of which is owned by one or more socially and economically disadvantaged
individuals; and
ii. Whose management and daily business operations are controlled by one or more of
the socially and economically disadvantaged individuals who own it. or
iii. Which is at least 51 percent owned by one or more women individuals, or in the case of
any publicly owned business, at least 51 % of the stock of which is owned by one or more
women individuals; and
iv. Whose management and daily business operations are controlled by one or more
Page 25
women individuals who own it.
(b) "Small business concern" means a small business as defined by Section 3 of the Small Business Act
and Appendix B - (Section 106(c)) Determinations of Business Size.
(c) "Socially and economically disadvantaged individuals" means those individuals who are citizens of the
United States (or lawfully admitted permanent residents) and States (or lawfully admitted permanent
residents) and who are black Americans, Hispanic Americans, Native Americans, Asian-Pacific
Americans, Asian-Indian Americans, or women, and any other minorities or individuals found to be
disadvantaged by the Small Business Administration pursuant to section 8(a) of the Small Business
Act.
i. "Black Americans", which includes persons having origins in any of the Black racial groups of
Africa;
ii. "Hispanic Americans", which includes persons of Mexican, Puerto Rican, Cuba, Central or South
American, or other Spanish or Portuguese culture or origin, regardless of race;
iii. "Native Americans', which includes persons who are American Indians, Eskimos, Aleuts, or
Native Hawaiians;
iv. "Asian-Pacific Americans", which includes persons whose origins are from Japan, China,
Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the U.S. Trust
Territories of Pacific, and the Northern Marianas;
v. "Asian-Indian Americans", which includes persons whose origins are from India, Pakistan, and
Bangladesh.
INTERESTS OF MEMBERS OF OR DELEGATES TO CONGRESS
No member of or delegate to the Congress of the United States shall be admitted to any share or part
of this Agreement or to any benefit arising therefrom.
PROHIBITED INTEREST
No employee, officer, or agent of the grantee shall participate in selection, or in the award or
administration of a contract if a conflict of interest, real or apparent, would be involved. Such conflict
would arise when:
The employee, officer or agent; any member of his immediate family; his or her partner; or an
organization which employs, or is about to employ, has a financial or other interest in the firm selected
for award. The grantee's officers, employees, or agents shall neither solicit nor accept gratuities,
favors or anything of monetary value from contractors, potential contractors, or parties of
subagreements.
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Attachment 1
BUY AMERICA REQUIREMENTS -49 U.S.C. 5323(j) - 49 CFR Part 661
Certification requirement for procurement of steel, iron, or manufactured products.
Certificate of Compliance with 49 U.S.C. 5323(j)(1)
The bidder or offeror hereby certifies that it will meet the requirements of 49 U.S.C. 5323(j)(1) and the
applicable regulations in 49 CFR Part 661.
Date ________________________________________________________________________
Signature____________________________________________________________________
Company Name_______________________________________________________________
Title ________________________________________________________________________
Page 27
Attachment 1
BUY AMERICA REQUIREMENTS -49 U.S.C. 5323(j) - 49 CFR Part 661
A bidder or offeror must submit to the FTA recipient the appropriate Buy America certification with all
Bids 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 Non-Compliance with 49 U.S.C. 5323(j)(1)
The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C.
5323(j)(1), but it may qualify for an exception pursuant to 49 U.S.C. 5323(j)(2)(B) or (j)(2)(D) and the
regulations in 49 CFR 661.7.
Date ________________________________________________________________________
Signature ____________________________________________________________________
Company Name ______________________________________________________________
Title ________________________________________________________________________
Page 28
Attachment 4
Certification Regarding Lobbying
Certification for Contracts, Grants, Loans, and Cooperative Agreements
(To be submitted with each bid or offer exceeding $100,000)
The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to
any person for influencing or attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection
with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal
loan, the entering into of any cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for
making lobbying contacts to an officer or employee of any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in connection with this Federal
contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit
Standard Form--LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions
[as amended by "Government wide Guidance for New Restrictions on Lobbying," 61 Fed. Reg.
1413 (1/19/96). Note: Language in paragraph (2) herein has been modified in accordance with
Section 10 of the Lobbying Disclosure Act of 1995 (P.L. 104-65, to be codified at 2 U.S.C. 1601,
et seq .)]
(3) The undersigned shall require that the language of this certification be included in the
award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts
under grants, loans, and cooperative agreements) and that all subrecipients shall certify and
disclose accordingly. This certification is a material representation of fact upon which reliance
was placed when this transaction was made or entered into. Submission of this certification is a
prerequisite for making or entering into this transaction imposed by 31, U.S.C.? 1352 (as amended by
the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
[Note: Pursuant to 31 U.S.C.1352(c)(1)-(2)(A), any person who makes a prohibited expenditure or fails
to file or amend a required certification or disclosure form shall be subject to a civil penalty of not less
than $10,000 and not more than $100,000 for each such expenditure or failure.]
The Contractor, ___________________________________________, 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