HomeMy WebLinkAboutCORRESPONDENCE - BID - 8562 EQUIPMENT RENTAL 2017July 8, 2019
United Rentals
Attn: Jerry Kemper
1429 E. Mulberry St.
Fort Collins, CO 80524
RE: Renewal, 8562 Equipment Rental 2017
Dear Mr. Kemper:
The City of Fort Collins wishes to extend the agreement term for the above captioned proposal
per the existing terms and conditions and the following:
1) The term will be extended for one (1) additional year, August 1, 2019 through July 31,
2020.
2) Signed Equipment Rental Master Agreement as attached.
If this extension is not agreeable with your firm, we ask that you send us a written notice stating
that you do not wish to renew the contract and state the reason for non-renewal.
Please contact Doug Clapp, CPPB, Senior Buyer at (970) 221-6776 if you have any questions
regarding this matter.
Sincerely,
Gerry S. Paul
Director of Purchasing
__________________________________________ ________________
Signature Date
(Please indicate your desire to renew 8562 by signing this letter and returning it to Purchasing
Division within the next fifteen days.)
GSP:kr
Financial Services
Purchasing Division
215 N. Mason St. 2nd Floor
PO Box 580
Fort Collins, CO 80522
970.221.6775
970.221.6707- fax
fcgov.com/purchasing
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BID 8562 Equipment Rental 2017 Page 1 of 17
City of Fort Collins
Equipment Rental Master Agreement 2017
This lease agreement (the “Agreement”), dated as indicated at the end of the Agreement, is
between (Lessor) and
the City of Fort Collins, Colorado (Lessee), a body corporate and politic existing under the laws
of the State of Colorado, PO Box 580, Fort Collins, Colorado, 80522, is as follows:
1.0. Agreement to Lease
Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, equipment,
when needed, as specified in the current City of Fort Collins annual Equipment Rental Bid.
This Agreement shall remain in effect until cancelled. Either party may cancel by
providing ten (10) days written notice.
2.0 Application of Agreement
This Agreement is required for any individual equipment rented under the Equipment
Rental Bid where the total rental costs exceed $5,000.
3.0 Entire Agreement
This writing, together with the Specifications contained in the current Equipment Rental
Bid and the associated Purchase Order Terms and Conditions, constitutes the entire
agreement between the parties, their officers, employees, agents and assigns and
supersedes all prior agreements, understandings, warranties or promises between the
parties hereto, whether written, spoken or implied from the conduct of the parties hereto.
The Lessor may require a signed receipt, verifying actual delivery of rental equipment.
4.0 Delivery
Delivery terms are FOB: Fort Collins, Fleet Services Equipment Shop at 835 Wood Street,
or, if requested, Streets Shop at 625 9th Street. Delivery to other locations will be
negotiated on an individual basis. At the end of the lease equipment will be returned to
the delivery location for pickup unless other arrangements have been agreed to by the
department representative.
5.0 Commencement and Term
The Agreement will be for one (1) year. In addition, at the option of the City, the
Agreement may be extended for additional one (1) year periods not to exceed two (2)
additional one-year periods. Renewals and pricing changes shall be negotiated by and
agreed to by both parties. Written notice of renewal shall be provided to the Service
Provider and mailed no later than thirty (30) days prior to contract end.
6.0 Rental Payments
Financial Services
Purchasing Division
215 N. Mason St. 2nd Floor
PO Box 580
Fort Collins, CO 80522
970.221.6775
970.221.6707
fcgov.com/purchasing
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United Rentals inc
BID 8562 Equipment Rental 2017 Page 2 of 17
Lessee may not deduct any amount or reduce any payment for any reason except for
failure of the equipment to operate as intended unless the Lessor has agreed to a
reduction. Payments are due within 30 days of receipt of invoice by the City of Fort Collins
Accounting Department. Monthly payment amounts shall be specified in the body of the
City purchase order issued for each rental covered by this Agreement.
7.0 Location and Inspection of Equipment
The equipment will be used in various locations within the City of Fort Collins and the
surrounding area. Lessor's representative may inspect rental equipment, on location, at
any reasonable time and may remove equipment from service, if required, for repair or
maintenance, provided that replacement equipment of similar or greater capability is made
available to the City at no additional charge while the original equipment is being serviced
or repaired. The Lessor shall provide the City at least two (2) business days prior notice
before removing/replacing equipment for service.
8.0 Maintenance and Use of Equipment
The Lessee agrees, at the Lessee's expense, to maintain and return the equipment in the
same condition as when delivered to it by the Lessor, ordinary wear and tear excepted.
The Lessor may require the replacement of certain high-wear parts, such as crusher jaws,
asphalt mill teeth, etc. Such parts shall be clearly identified in writing to the Lessee.
Lessee will include the details of such parts replacement in the body of any applicable
purchase order. Accessories and devices installed on the equipment by the Lessee
become the property of the Lessor unless the accessories or devices are removed and
any damage caused by such installation and removal is repaired at Lessee’s expense
prior to return of equipment to Lessor. Lessee agrees not to permit the equipment to be
abused, overloaded, used beyond its capacity, or used in a negligent manner.
9.0 Additional Rental Charges
Lessee agrees that rental rates quoted in the Equipment Rental Bid are based on eight (8)
hours per day, forty (40) hours per week (seven consecutive days equals one week), and
one-hundred, seventy-six (176) hours per month. Lessee agrees to pay additional rental
prorated at the applicable rate for each hour the rented equipment is used in excess of
such time. Where the rental rate is based on mileage, Lessee agrees to pay the extra
mileage charge specified in Lessor’s response to the applicable Rental Bid.
10.0 Liability
To the extent permitted by law, Lessee assumes all risk and liability for and agrees to hold
Lessor and its assigns harmless from all damages for injuries or death to persons or
property arising out of use, possession, or transportation of the equipment except to the
extent that the same results directly from the negligence of Lessor. Notwithstanding the
foregoing, nothing in this Agreement shall be interpreted as a waiver of any limits or
protections afforded Lessee under the Colorado Governmental Immunity Act.
11.0 Assignment
Lessor may not assign this Rental Agreement or any right, title, or interest of Lessor in any
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equipment rented under this Agreement, or any sums due from Lessee for such rentals
without the written consent of the Lessee. Lessee may not assign this Rental Agreement.
12.0 Ownership
This is a rental agreement. The equipment is and shall remain the property of the Lessor
during the lease period.
13.0 Non-Appropriation of Funds
Lessee reasonably believes that it will have a need for equipment rented for the duration
of lease terms negotiated under this Agreement and that funds will be available and
appropriated to make all rental payments during those terms. Lessee will seek funding
each year as part of its Budget process. If funds to continue the leasing of equipment for
any ensuing term are not legally available for such purpose, Lessee may terminate rentals
under this Agreement with no further liability.
14.0 Disclaimer of Warranties and Exclusion of Remedies
Lessee acknowledges that the Lessor is not the manufacturer of the equipment nor the
manufacturer's or vendor's agent. Accordingly, with the exception of express warranties
made by the Lessor to Lessee, all warranties and remedies, whether they be expressed or
implied, specifically including, but not limited to, the warranties of merchantability and
fitness for a particular purpose, and remedy of incidental and consequential damages, are
excluded.
15.0 Insurance
Lessee is self-insured in accordance with the laws of the State of Colorado up to $50,000
and provides comprehensive general all risk liability insurance for claims over that amount.
Proof of such insurance coverage will be sent to Lessor upon request.
16.0 Choice of Law
This lease shall be considered to have been made in the State of Colorado and shall be
interpreted in accordance with the laws of Colorado. Lessor agrees to jurisdiction in
Colorado, Larimer County in case of any action, suit, or proceeding arising out of this
lease. Lessor acknowledges transacting business in Colorado by entering into this lease,
and that the jurisdiction choice of law and venue provisions of this lease are specifically
terms of this lease.
17.0 Severability
In the event any covenant, condition or provision of this Agreement is held to be invalid by
final judgment of any court of competent jurisdiction, the invalidity of such covenant,
condition or provision shall not in any way affect any of the other covenants, conditions or
provisions of this Agreement, provided that the invalidity of any such covenant, condition
or provision does not materially prejudice either Lessor or Lessee in his or its respective
rights and obligations under the valid covenants, conditions or provisions of this
Agreement.
18.0 Cumulative Rights
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All remedies provided in this Agreement shall be deemed cumulative and additional and
not in lieu of, or exclusive of, each other or of any other remedy available to the City, or
Contractor, at law or in equity, and the exercise of any remedy, or the existence herein of
other remedies or indemnities shall not prevent the exercise of any other remedy.
19.0 Non-Waiver
The failure by either party to exercise any right or rights accruing to it by virtue of the
breach of any covenant, condition or agreement herein by the other party shall not operate
as a waiver of the exercise of such right or rights in the event of any subsequent breach by
such other party, nor shall such other party be relieved thereby from its obligations under
the terms hereof.
20.0 Benefits
This Agreement is made for the sole and exclusive benefit of the Lessee and Lessor, their
successors and assigns, and is not made for the benefit of any third party.
21.0 Construction
In the event of any ambiguity in any of the terms of this Agreement, it shall not be
construed for or against any party hereto on the basis that such party did or did not author
the same.
22.0 Successors and Assigns
All covenants, stipulations and agreements in this Agreement shall extend to and bind
each party hereto, its legal representatives, successors and assigns.
23.0 Notices
Notices permitted or required to be given under this Agreement shall be in writing and
shall be deemed given upon personal delivery or upon deposit in the United States Mail,
certified, return receipt requested, postage fully prepaid, addressed as follows or to such
other address as the parties may designate from time to time by notice given in
accordance with this Section:
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To Lessor:
To the person signing this Agreement on behalf of the Lessor, at the address given below.
To Lessee:
To the attention of Doug Clapp, Senior Buyer, at the address given below.
LESSOR: LESSEE:
Company Name: City of Fort Collins
Street:
City:
Zip:
Phone:
PO Box 580 / 215 N Mason Street, 2nd Floor
Fort Collins, CO
80522
970-221-6775
Email:
By: __________________________________
purchasing@fcgov.com
By: ____________________________
Print Name: ___________________________ Gerry Paul
Title: ________________________________ Purchasing Director
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9704829999
Fort Collins
United Rentals inc
Jerry Kemper
Sales representative
1926 SE Frontage Rd
80525
jkemper1@ur.com
BID 8562 Equipment Rental 2017 Page 6 of 17
FEDERAL TRANSIT ADMINISTRATION
FEDERALLY REQUIRED AND OTHER MODEL CONTRACT CLAUSES
TABLE OF CONTENTS
NO GOVERNMENT OBLIGATION TO THIRD PARTIES .............................................. 7
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED
ACTS ............................................................................................................................ 11
ACCESS TO RECORDS AND REPORTS ................................................................... 12
FEDERAL CHANGES .................................................................................................. 14
CIVIL RIGHTS REQUIREMENTS ................................................................................. 14
INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS ........ 15
ENERGY CONSERVATION REQUIREMENTS ........................................................... 16
TERMINATION ............................................................................................................. 16
GOVERNMENT-WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) .. 18
CARGO PREFERENCE REQUIREMENTS .................................................................. 19
DISADVANTAGED BUSINESS ENTERPRISE (DBE) ................................................. 19
ADA ACCESS .............................................................................................................. 21
CITY OF FORT COLLINS BID PROTEST PROCEDURES ......................................... 21
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NO GOVERNMENT OBLIGATION TO THIRD PARTIES
Applicability to Contracts
Applicable to all contracts.
Flow Down
Not required by statute or regulation for either primary contractors or subcontractors, this
concept should flow down to all levels to clarify, to all parties to the contract, that the
Federal Government does not have contractual liability to third parties, absent specific
written consent.
Model Clause/Language
While no specific language is required, FTA has developed the following language.
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.
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED
ACTS
(31 U.S.C. 3801 et seq. 49 CFR Part 31 18 U.S.C. 1001 49 U.S.C. 5307)
Applicability to Contracts
These requirements are applicable to all contracts.
Flow Down
These requirements flow down to contractors and subcontractors who make, present, or
submit covered claims and statements.
Model Clause/Language
These requirements have no specified language, so FTA proffers the following language.
Program Fraud and False or Fraudulent Statements or Related Acts.
(1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies
Act of 1986, as amended, 31 U.S.C. § 3801 et 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.
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(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.
ACCESS TO RECORDS AND REPORTS
(49 U.S.C. 5325, 18 CFR 18.36 (i), 49 CFR 633.17)
Applicability to Contracts
Reference Chart "Requirements for Access to Records and Reports by Type of Contracts"
Flow Down
FTA does not require the inclusion of these requirements in subcontracts.
Model Clause/Language
The specified language is not mandated by the statutes or regulations referenced, but the
language provided paraphrases the statutory or regulatory language.
Access to Records - The following access to records requirements apply to this Contract:
1. Where the Purchaser is not a State but a local government and is the FTA Recipient or
a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 18.36(i), the
Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller
General of the United States or any of their authorized representatives access to any
books, documents, papers and records of the Contractor which are directly pertinent to
this contract for the purposes of making audits, examinations, excerpts and
transcriptions. Contractor also agrees, pursuant to 49 C.F.R. 633.17 to provide the
FTA Administrator or his authorized representatives including any PMO Contractor
access to Contractor's records and construction sites pertaining to a major capital
project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance
through the programs described at 49 U.S.C. 5307, 5309 or 5311.
2. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA
Recipient in accordance with 49 C.F.R. 633.17, Contractor agrees to provide the
Purchaser, the FTA Administrator or his authorized representatives, including any
PMO Contractor, access to the Contractor's records and construction sites pertaining
to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal
financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311.
By definition, a major capital project excludes contracts of less than the simplified
acquisition threshold currently set at $100,000.
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
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the FTA Recipient in accordance with 49 C.F.R. 19.48, Contractor agrees to provide
the Purchaser, FTA Administrator, the Comptroller General of the United States or any
of their duly authorized representatives with access to any books, documents, papers
and record of the Contractor which are directly pertinent to this contract for the
purposes of making audits, examinations, excerpts and transcriptions.
4. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient
in accordance with 49 U.S.C. 5325(a) enters into a contract for a capital project or
improvement (defined at 49 U.S.C. 5302(a)1) through other than competitive bidding,
the Contractor shall make available records related to the contract to the Purchaser,
the Secretary of Transportation and the Comptroller General or any authorized officer
or employee of any of them for the purposes of conducting an audit and inspection.
5. The Contractor agrees to permit any of the foregoing parties to reproduce by any
means whatsoever or to copy excerpts and transcriptions as reasonably needed.
6. The Contractor agrees to maintain all books, records, accounts and reports required
under this contract for a period of not less than three years after the date of termination
or expiration of this contract, except in the event of litigation or settlement of claims
arising from the performance of this contract, in which case Contractor agrees to
maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or
any of their duly authorized representatives, have disposed of all such litigation,
appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11).
7. FTA does not require the inclusion of these requirements in subcontracts.
Requirements for Access to Records and Reports by Types of Contract
Contract
Characteristics
Operational
Service
Contract
Turnkey Construction
Architectural
Engineering
Acquisition
of Rolling
Stock
Professional
Services
I State Grantees
a. Contracts
below SAT
($100,000)
b. Contracts
above
$100,000/Capital
Projects
None
None
unless1 non-
competitive
award
Those imposed
on state pass
thru to
Contractor
None
Yes, if non-
competitive
award or if
funded thru2
5307/5309/53
11
BID 8562 Equipment Rental 2017 Page 10 of 17
3
18 CFR 18.36 (i)
FEDERAL CHANGES
(49 CFR Part 18)
Applicability to Contracts
The Federal Changes requirement applies to all contracts.
Flow Down
The Federal Changes requirement flows down appropriately to each applicable changed
requirement.
Model Clause/Language
No specific language is mandated. The following language has been developed by FTA.
Federal Changes - Contractor shall at all times comply with all applicable FTA
regulations, policies, procedures and directives, including without limitation those listed
directly or by reference in the Master Agreement between Purchaser and FTA, as they
may be amended or promulgated from time to time during the term of this contract.
Contractor's failure to so comply shall constitute a material breach of this contract.
CIVIL RIGHTS REQUIREMENTS
(29 U.S.C. § 623, 42 U.S.C. § 2000 42 U.S.C. § 6102, 42 U.S.C. § 12112 42 U.S.C. §
12132, 49 U.S.C. § 5332 29 CFR Part 1630, 41 CFR Parts 60 et seq.)
Applicability to Contracts
The Civil Rights Requirements apply to all contracts.
Flow Down
The Civil Rights requirements flow down to all third party contractors and their contracts at
every tier.
Model Clause/Language
The following clause was predicated on language contained at 49 CFR Part 19, Appendix
A, but FTA has shortened the lengthy text.
Civil Rights - The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42
U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42
U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. §
12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will
not discriminate against any employee or applicant for employment because of race,
color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees
to comply with applicable Federal implementing regulations and other implementing
requirements FTA may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity
requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil
Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C.
§ 5332, the Contractor agrees to comply with all applicable equal employment
opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations,
"Office of Federal Contract Compliance Programs, Equal Employment Opportunity,
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Department of Labor," 41 C.F.R. Parts 60 et seq., (which implement Executive
Order No. 11246, "Equal Employment Opportunity," as amended by Executive
Order No. 11375, "Amending Executive Order 11246 Relating to Equal
Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable
Federal statutes, executive orders, regulations, and Federal policies that may in
the future affect construction activities undertaken in the course of the Project. The
Contractor agrees to take affirmative action to ensure that applicants are
employed, and that employees are treated during employment, without regard to
their race, color, creed, national origin, sex, or age. Such action shall include, but
not be limited to, the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising, layoff or termination; rates of pay or other
forms of compensation; and selection for training, including apprenticeship. In
addition, the Contractor agrees to comply with any implementing requirements FTA
may issue.
(b) 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.
INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS
(FTA Circular 4220.1E)
Applicability to Contracts
The incorporation of FTA terms applies to all contracts.
Flow Down
The incorporation of FTA terms has unlimited flow down.
Model Clause/Language
FTA has developed the following incorporation of terms language:
Incorporation of Federal Transit Administration (FTA) Terms - The preceding
provisions include, in part, certain Standard Terms and Conditions required by DOT,
whether or not expressly set forth in the preceding contract provisions. All contractual
provisions required by DOT, as set forth in FTA Circular 4220.1E, are hereby incorporated
by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms
shall be deemed to control in the event of a conflict with other provisions contained in this
Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to
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comply with any (name of grantee) requests which would cause (name of grantee) to be in
violation of the FTA terms and conditions.
ENERGY CONSERVATION REQUIREMENTS
(42 U.S.C. 6321 et seq. 49 CFR Part 18)
Applicability to Contracts
The Energy Conservation requirements are applicable to all contracts.
Flow Down
The Energy Conservation requirements extend to all third party contractors and their
contracts at every tier and subrecipients and their subagreements at every tier.
Model Clause/Language
No specific clause is recommended in the regulations because the Energy Conservation
requirements are so dependent on the state energy conservation plan. The following
language has been developed by FTA:
Energy Conservation - The contractor agrees to comply with mandatory standards and
policies relating to energy efficiency which are contained in the state energy conservation
plan issued in compliance with the Energy Policy and Conservation Act.
TERMINATION
(49 U.S.C. Part 18 FTA Circular 4220.1E)
Applicability to Contracts
All contracts (with the exception of contracts with nonprofit organizations and institutions of
higher education,) in excess of $10,000 shall contain suitable provisions for termination by
the grantee including the manner by which it will be effected and the basis for settlement.
(For contracts with nonprofit organizations and institutions of higher education the
threshold is $100,000.) In addition, such contracts shall describe conditions under which
the contract may be terminated for default as well as conditions where the contract may be
terminated because of circumstances beyond the control of the contractor.
Flow Down
The termination requirements flow down to all contracts in excess of $10,000, with the
exception of contracts with nonprofit organizations and institutions of higher learning.
Model Clause/Language
FTA does not prescribe the form or content of such clauses. The following are
suggestions of clauses to be used in different types of contracts:
a. Termination for Convenience (General Provision) The (Recipient) may terminate
this contract, in whole or in part, at any time by written notice to the Contractor when it
is in the Government's best interest. The Contractor shall be paid its costs, including
contract close-out costs, and profit on work performed up to the time of termination.
The Contractor shall promptly submit its termination claim to (Recipient) to be paid the
Contractor. If the Contractor has any property in its possession belonging to the
(Recipient), the Contractor will account for the same, and dispose of it in the manner
the (Recipient) directs.
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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 (Recipient) 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 (Recipient) 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 (Recipient), 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 (Recipient) in its sole discretion may, in
the case of a termination for breach or default, allow the Contractor [an appropriately
short period of time] in which to cure the defect. In such case, the notice of termination
will state the time period in which cure is permitted and other appropriate conditions
If Contractor fails to remedy to (Recipient)'s satisfaction the breach or default of any of
the terms, covenants, or conditions of this Contract within [ten (10) days] after receipt
by Contractor of written notice from (Recipient) setting forth the nature of said breach
or default, (Recipient) shall have the right to terminate the Contract without any further
obligation to Contractor. Any such termination for default shall not in any way operate
to preclude (Recipient) from also pursuing all available remedies against Contractor
and its sureties for said breach or default.
d. Waiver of Remedies for any Breach In the event that (Recipient) elects to waive its
remedies for any breach by Contractor of any covenant, term or condition of this
Contract, such waiver by (Recipient) shall not limit (Recipient)'s remedies for any
succeeding breach of that or of any other term, covenant, or condition of this Contract.
e. Termination for Default (Supplies and Service) If the Contractor fails to deliver
supplies or to perform the services within the time specified in this contract or any
extension or if the Contractor fails to comply with any other provisions of this contract,
the (Recipient) may terminate this contract for default. The (Recipient) shall terminate
by delivering to the Contractor a Notice of Termination specifying the nature of the
default. The Contractor will only be paid the contract price for supplies delivered and
accepted, or services performed in accordance with the manner or performance set
forth in this contract.
If, after termination for failure to fulfill contract obligations, it is determined that the
Contractor was not in default, the rights and obligations of the parties shall be the
same as if the termination had been issued for the convenience of the Recipient.
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 (Recipient) may terminate this contract for default.
The (Recipient) shall terminate by delivering to the Contractor a Notice of Termination
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specifying the nature of default. The Contractor will only be paid the contract price for
services performed in accordance with the manner of performance set forth in this
contract.
If this contract is terminated while the Contractor has possession of Recipient goods,
the Contractor shall, upon direction of the (Recipient), protect and preserve the goods
until surrendered to the Recipient or its agent. The Contractor and (Recipient) shall
agree on payment for the preservation and protection of goods. Failure to agree on an
amount will be resolved under the Dispute clause.
If, after termination for failure to fulfill contract obligations, it is determined that the
Contractor was not in default, the rights and obligations of the parties shall be the
same as if the termination had been issued for the convenience of the (Recipient).
GOVERNMENT-WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Background and Applicability
In conjunction with the Office of Management and Budget and other affected Federal
agencies, DOT published an update to 49 CFR Part 29 on November 26, 2003. This
government-wide regulation implements Executive Order 12549, Debarment and
Suspension, Executive Order 12689, Debarment and Suspension, and 31 U.S.C. 6101
note (Section 2455, Public Law 103-355, 108 Stat. 3327).
The provisions of Part 29 apply to all grantee contracts and subcontracts at any level
expected to equal or exceed $25,000 as well as any contract or subcontract (at any level)
for Federally required auditing services. 49 CFR 29.220(b). This represents a change
from prior practice in that the dollar threshold for application of these rules has been
lowered from $100,000 to $25,000. These are contracts and subcontracts referred to in
the regulation as “covered transactions.”
Grantees, contractors, and subcontractors (at any level) that enter into covered
transactions are required to verify that the entity (as well as its principals and affiliates)
they propose to contract or subcontract with is not excluded or disqualified. They do this
by (a) Checking the Excluded Parties List System, (b) Collecting a certification from that
person, or (c) Adding a clause or condition to the contract or subcontract. This represents
a change from prior practice in that certification is still acceptable but is no longer required.
49 CFR 29.300.
Grantees, contractors, and subcontractors who enter into covered transactions also must
require the entities they contract with to comply with 49 CFR 29, subpart C and include
this requirement in their own subsequent covered transactions (i.e., the requirement flows
down to subcontracts at all levels).
Clause Language
The following clause language is suggested, not mandatory. It incorporates the optional
method of verifying that contractors are not excluded or disqualified by certification.
Suspension and Debarment
This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the
contractor is required to verify that none of the contractor, its principals, as defined at 49
CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as
defined at 49 CFR 29.940 and 29.945.
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The contractor is required to comply with 49 CFR 29, Subpart C and must include the
requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it
enters into.
By signing and submitting its bid or proposal, the bidder or proposer certifies as follows:
The certification in this clause is a material representation of fact relied upon by the City of
Fort Collins. If it is later determined that the bidder or proposer knowingly rendered an
erroneous certification, in addition to remedies available to the City of Fort Collins, the
Federal Government may pursue available remedies, including but not limited to
suspension and/or debarment. The bidder or proposer agrees to comply with the
requirements of 49 CFR 29, Subpart C while this offer is valid and throughout the period of
any contract that may arise from this offer. The bidder or proposer further agrees to
include a provision requiring such compliance in its lower tier covered transactions.
CARGO PREFERENCE REQUIREMENTS
(46 U.S.C. 1241 , 46 CFR Part 381)
Applicability to Contracts
The Cargo Preference requirements apply to all contracts involving equipment, materials,
or commodities which may be transported by ocean vessels.
Flow Down
The Cargo Preference requirements apply to all subcontracts when the subcontract may
be involved with the transport of equipment, material, or commodities by ocean vessel.
Model Clause/Language
The MARAD regulations at 46 CFR 381.7 contain suggested contract clauses. The
following language is proffered by FTA.
Cargo Preference - Use of United States-Flag Vessels - The contractor agrees: a. to
use privately owned United States-Flag commercial vessels to ship at least 50 percent of
the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and
tankers) involved, whenever shipping any equipment, material, or commodities pursuant to
the underlying contract to the extent such vessels are available at fair and reasonable
rates for United States-Flag commercial vessels; b. to furnish within 20 working days
following the date of loading for shipments originating within the United States or within 30
working days following the date of leading for shipments originating outside the United
States, a legible copy of a rated, "on-board" commercial ocean bill-of -lading in English for
each shipment of cargo described in the preceding paragraph to the Division of National
Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590
and to the FTA recipient (through the contractor in the case of a subcontractor's bill-of-
lading.) c. to include these requirements in all subcontracts issued pursuant to this
contract when the subcontract may involve the transport of equipment, material, or
commodities by ocean vessel.
DISADVANTAGED BUSINESS ENTERPRISE (DBE)
(49 CFR Part 26)
Background and Applicability
The newest version on the Department of Transportation’s Disadvantaged Business
Enterprise (DBE) program became effective July 16, 2003. The rule provides guidance to
grantees on the use of overall and contract goals, requirement to include DBE provisions
in subcontracts, evaluating DBE participation where specific contract goals have been set,
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reporting requirements, and replacement of DBE subcontractors. Additionally, the DBE
program dictates payment terms and conditions (including limitations on retainage)
applicable to all subcontractors regardless of whether they are DBE firms or not.
The DBE program applies to all DOT-assisted contracting activities. A formal clause such
as that below must be included in all contracts above the micro-purchase level. The
requirements of clause subsection b flow down to subcontracts.
A substantial change to the payment provisions in this newest version of Part 26 concerns
retainage (see section 26.29). Grantee choices concerning retainage should be reflected
in the language choices in clause subsection d.
Clause Language
The following clause language is suggested, not mandatory. It incorporates the payment
terms and conditions applicable to all subcontractors based in Part 26 as well as those
related only to DBE subcontractors. The suggested language allows for the options
available to grantees concerning retainage, specific contract goals, and evaluation of DBE
subcontracting participation when specific contract goals have been established.
Disadvantaged Business Enterprises
a. This contract is subject to the requirements of Title 49, Code of Federal Regulations,
Part 26, Participation by Disadvantaged Business Enterprises in Department of
Transportation Financial Assistance Programs. The national goal for participation of
Disadvantaged Business Enterprises (DBE) is 10%. The agency’s overall goal for
DBE participation is 5 %. A contract goal of 5 % DBE participation has been
established for this procurement.
b. The contractor shall not discriminate on the basis of race, color, national origin, or sex
in the performance of this contract. The contractor shall carry out applicable
requirements of 49 CFR Part 26 in the award and administration of this DOT-assisted
contract. Failure by the contractor to carry out these requirements is a material breach
of this contract, which may result in the termination of this contract or such other
remedy as the City of Fort Collins deems appropriate. Each subcontract the contractor
signs with a subcontractor must include the assurance in this paragraph (see 49 CFR
26.13(b)).
c. Bidders/offerors are required to document sufficient DBE participation to meet these
goals or, alternatively, document adequate good faith efforts to do so, as provided for
in 49 CFR 26.53. Award of this contract is conditioned on submission of the
following concurrent with and accompanying sealed bid:
1. The names and addresses of DBE firms that will participate in this contract;
2. A description of the work each DBE will perform;
3. The dollar amount of the participation of each DBE firm participating;
4. Written documentation of the bidder/offeror’s commitment to use a DBE
subcontractor whose participation it submits to meet the contract goal;
5. Written confirmation from the DBE that it is participating in the contract as provided
in the prime contractor’s commitment; and
6. If the contract goal is not met, evidence of good faith efforts to do so.
Bidders must present the information required above as a matter of responsiveness
(see 49 CFR 26.53(3)).
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{If no separate contract goal has been established, use the following} The
successful bidder/offeror will be required to report its DBE participation obtained
through race-neutral means throughout the period of performance.
d. The contractor is required to pay its subcontractors performing work related to this
contract for satisfactory performance of that work no later than 30 days after the
contractor’s receipt of payment for that work from the City of Fort Collins. In addition,
the contractor may not hold retainage from its subcontractors and is required to return
any retainage payments to those subcontractors within 30 days after the
subcontractor's work related to this contract is satisfactorily completed.
e. The contractor must promptly notify the City of Fort Collins whenever a DBE
subcontractor performing work related to this contract is terminated or fails to complete
its work, and must make good faith efforts to engage another DBE subcontractor to
perform at least the same amount of work. The contractor may not terminate any DBE
subcontractor and perform that work through its own forces or those of an affiliate
without prior written consent of the City of Fort Collins.
ADA ACCESS
Accessibility. Facilities to be used in public transportation service must comply with 42
U.S.C. Sections 12101 et seq. and DOT regulations, “Transportation Services for
Individuals with Disabilities (ADA),” 49 CFR Part 37; and Joint ATBCB/DOT regulations,
“Americans with Disabilities (ADA) Accessibility Specifications for Transportation
Vehicles,” 36 CFR Part 1192 and 49 CFR Part 38. Notably, DOT incorporated by
reference the ATBCB’s “Americans with Disabilities Act Accessibility Guidelines”
(ADAAG), revised July 2004, which include accessibility guidelines for buildings and
facilities, and are incorporated into Appendix A to 49 CFR Part 37. DOT also added
specific provisions to Appendix A modifying the ADAAG, with the result that buildings and
facilities must comply with both the ADAAG and amendments thereto in Appendix A to 49
CFR Part 37.
CITY OF FORT COLLINS BID PROTEST PROCEDURES
The City of Fort Collins has a protest procedure, covering any phase of solicitation or
award, including but not limited to specification or award. The protest procedures are
available from the Purchasing Department, City of Fort Collins, 215 N. Mason, Street, 2nd
Floor, P. O. Box 580, Fort Collins, CO. 80522. You may also request a copy of the
procedures by emailing: Purchasing@fcgov.com or calling 970-221-6775.
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None
None unless
non-
competitive
award
None
None unless
non-
competitive
award
None
None unless
non-
competitive
award
II Non State
Grantees
a. Contracts
below SAT
($100,000)
b. Contracts
above
$100,000/Capital
Projects
Yes3
Yes3
Those imposed
on non-state
Grantee pass
thru to
Contractor
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Sources of Authority:
1
49 USC 5325 (a)
2
49 CFR 633.17
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