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HomeMy WebLinkAboutRFP - 8134 VINE LEMAY BNSF IMPROVEMENTS PROJECTRFP 8134 Vine / Lemay / BNSF Improvements Project Page 1 of 33 REQUEST FOR PROPOSAL 8134 VINE / LEMAY / BNSF IMPROVEMENTS PROJECT The City of Fort Collins is requesting proposals from qualified firms to provide the City with preliminary engineering design, public outreach and railroad coordination for the Vine / Lemay / BNSF Improvements Project. The successful candidate will identify and address all of the tasks, issues and deliverables in their proposal. Prospective teams must possess the expertise and experience necessary to complete the project on time and within the established budget, and be motivated to work with City staff, the Burlington Northern Santa Fe Railway (BNSF), the Public Utilities Commission (PUC), impacted property owners and all other affected interests to accomplish the goals and objectives associated with this project. As part of the City’s commitment to Sustainable Purchasing, proposals submission via email is preferred. Proposals shall be submitted in a single Microsoft Word or PDF file under 20MB and e-mailed to: purchasing@fcgov.com. If electing to submit hard copy proposals instead, five (5) copies, will be received at the City of Fort Collins' Purchasing Division, 215 North Mason St., 2nd floor, Fort Collins, Colorado 80524. Proposals must be received before 3:00 p.m. (our clock), July 8, 2015 and referenced as Proposal No. 8134. 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. Please note, additional time is required for bids mailed to the PO Box to be received at the Purchasing Office. The City encourages all Disadvantaged Business Enterprises (DBEs) to submit proposals in response to all requests for proposals. No individual or business will be discriminated against on the grounds of race, color, sex, or national origin. It is the City’s policy to create a level playing field on which DBEs can compete fairly and to ensure nondiscrimination in the award and administration of all contracts. A pre-proposal meeting will be held June 24, 2015 at 10:00 am in the Community Room at 215 N Mason, Fort Collins. Questions concerning the scope of the bid should be directed to Tim Kemp, Capital Projects Engineer, at (970) 416-2719 or tkemp@fcgov.com. Questions regarding bid submittal or process should be directed to John Stephen, CPPO, LEED AP, Senior Buyer at (970) 221-6777 or jstephen@fcgov.com. All questions must be submitted in writing via email to Tim Kemp , with a copy to John Stephen, no later than 5:00 PM our clock on June 30, 2015. Questions received after this deadline will not be answered. A copy of the RFP may be obtained at www.rockymountainbidsystem.com. The City of Fort Collins is subject to public information laws, which permit access to most records and documents. Proprietary information in your response must be clearly identified and 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 RFP 8134 Vine / Lemay / BNSF Improvements Project Page 2 of 33 will be protected to the extent legally permissible. Proposals may not be marked ‘Proprietary’ in their entirety. All provisions of any contract resulting from this request for proposal will be public information. New Vendors: The City requires new vendors receiving awards from the City to fill out and submit an IRS form W-9 and to register for Direct Deposit (Electronic) payment. If needed, the W-9 form and the Vendor Direct Deposit Authorization Form can be found on the City’s Purchasing website at www.fcgov.com/purchasing under Vendor Reference Documents. 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. The City of Fort Collins reserves the right to reject any and all proposals and to waive any irregularities or informalities. Utilization of Award by Other Agencies: The City of Fort Collins reserves the right to allow other state and local governmental agencies, political subdivisions, and/or school districts to utilize the resulting award under all terms and conditions specified and upon agreement by all parties. Usage by any other entity shall not have a negative impact on the City of Fort Collins in the current term or in any future terms. Sustainability: Consulting firms/teams participating in the proposal are to provide an overview of the organization’s philosophy and approach to Sustainability. In no more than two (2) pages please describe how your organization strives to be sustainable in the use of materials, equipment, vehicles, fuel, recycling, office practices, etc. The City of Fort Collins incorporates the Triple Bottom Line into our decision process by including economic (or financial), environmental, and social factors in our evaluation. The selected Service Provider shall be expected to sign the City’s standard Agreement without revision prior to commencing Services (see sample attached to this Proposal). Sincerely, Gerry S. Paul Purchasing Director RFP 8134 Vine / Lemay / BNSF Improvements Project Page 3 of 33 REQUEST FOR PROPOSAL 8134 VINE / LEMAY / BNSF IMPROVEMENTS PROJECT The City of Fort Collins Engineering Department is requesting proposals from a consulting firm or team to provide the City with preliminary engineering design, public outreach and railroad coordination for the Vine / Lemay / BNSF Improvements Project. The successful candidate will identify and address all of the tasks, issues and deliverables in their proposal. Prospective teams must possess the expertise and experience necessary to complete the project on time and within the established budget, and be motivated to work with City staff, the Burlington Northern Santa Fe Railway (BNSF), the Public Utilities Commission (PUC), impacted property owners and all other affected interests to accomplish the goals and objectives associated with this project. At the time of this RFP, the project budget contains only “local” funding. The City has an overall City Disadvantaged Business Enterprise (DBE) goal of 5%. The City is actively pursuing final design and construction funding through federal grant resources. Due to the potential for federal funding sources for this project, the contract will be required to meet all applicable Federal Requirements. DBE goals will be established for subsequent phases as more information becomes available with respect to future funding sources. Consultant costs / fees will not be considered when evaluating the proposals. Consultants will be disqualified if fees are included in the RFP. The executed design contract will be set up so that the City may, at our discretion, extend the contract for final design and construction support services via a negotiated agreement; as additional project funding becomes available. The City reserves the right to complete a new RFP if desired. Tasks to complete this phase of the project include, but are not limited to, those outlined in the attached preliminary Scope of Work (Section III). Please limit the total length of your proposal to a maximum of twenty-five (25) pages total (excluding covers and dividers). I. Introduction The City of Fort Collins is seeking professional consulting services for preliminary design, right- of-way needs verification and public outreach for the Vine / Lemay / BNSF Improvements Project. Due to continual increases in vehicle and train traffic, accidents and city growth; the City of Fort Collins has prioritized this project as its #1 Transportation Capital Improvement Project. The Vine and Lemay intersection footprint is constrained by existing houses, BNSF infrastructure and the Dry Creek Bridge. Currently, the Average Daily Traffic (ADT) is at 22,000 vehicles per day. Traffic modeling and forecasts have assumed a 2% per year traffic growth rate in this area. The existing intersection is close to “failing” and pushing the limits of our Adequate Public Facilities (APF) Ordinance. Presently, we are seeing 8 to 10 trains per day at this crossing and 20-30 minutes for traffic queues to clear per train crossing. Given the constraints and potential impacts, the City has determined that it will not be feasible to construct four-lane Arterial streets at the existing intersection. RFP 8134 Vine / Lemay / BNSF Improvements Project Page 4 of 33 Improvement of the intersection has become a safety issue for BNSF, emergency services and the travelling public. The City has been working in partnership with BNSF, area businesses and local neighborhood groups to determine the best plan to appropriately serve the project area and increase safety and vitality of the affected neighborhoods. The general framework for the improvements has been identified as a result of 30 years of community planning. This project is a major infrastructure component of the Mountain Vista Subarea Plan, developed by the City’s Planning Department (Adopted in 1999 and Updated in 2009), and a key element for enhancing multi-modal transportation for the northeast quadrant of Fort Collins. The Mountain Vista Subarea Plan (http://www.fcgov.com/planning/pdf/mvsp- doc.pdf) is a robust land use and economic development plan encompassing the intersection of Vine and Lemay; along with the proposed Lemay realignment and Suniga Drive. A brief summary of the long-range vision calls for:  Downgrading existing Lemay Avenue and Vine Drive to Local Streets  Eliminating the existing at-grade crossing of Lemay Avenue and the BNSF  Realigning Lemay Avenue as a four-lane Arterial (east of the existing intersection)  Obtaining approval for a new (relocated) crossing of the BNSF  Constructing Suniga Drive as a four-lane Arterial (approx.. ¼ mile north of Vine Drive)  Yet to be determined, best solutions for handling localized traffic adjacent to the existing Vine and Lemay intersection; with an emphasis on bicycle and pedestrian connectivity Along with improved safety, additional benefits stemming from this project include: multi-modal and transit infrastructure, increased reliability in freight movement, revitalization of the underserved neighborhoods (Alta Vista and Andersonville) adjacent to the project area, and increased access to business and educational services for the citizens of Fort Collins. The City has a $1M appropriation for this budget cycle (2015-2016) available for the design, right-of-way acquisition, public outreach and staff time. The City currently owns the proposed right-of-way for realigned Lemay Avenue between Lincoln Avenue and Vine Drive. The City is actively pursuing the proposed right-of-way for realigned Lemay Avenue between Vine Drive and Conifer Street. Our expectation is to be able to purchase the required right-of-way, north of Vine Drive, in this budget cycle. Required elements for the Vine / Lemay / BNSF Improvements Project:  Close coordination with BNSF regarding financial contribution to the project and meeting all applicable railroad design standards for the proposed improvements  Alternatives Analysis process (at-grade or grade separation) of realigned Lemay Avenue at the BNSF and existing Vine Drive crossings o See the attached Project Development Report for alternatives o We have three viable alternatives, each with pros and cons  Public Outreach with neighborhoods / local businesses for the Alternatives Analysis  Verify existing and proposed right-of-way alignments for realigned Lemay Avenue  Preliminary design plans (30%) for realigned Lemay Avenue RFP 8134 Vine / Lemay / BNSF Improvements Project Page 5 of 33  National Environmental Policy Act (NEPA) Clearances  Identification of funding sources for Final Design and Construction  Public Outreach, Renderings, Exhibits for the proposed improvements  Project approach to create a vision which balances the environmental, social and economic needs of the City, adjacent land owners and stakeholders Prospective teams must possess the expertise and experience necessary to complete the project on time and within the established budget, and be motivated to work with City staff, the Burlington Northern Santa Fe Railway (BNSF), the Public Utilities Commission (PUC), impacted property owners and all other affected interests to accomplish the goals and objectives associated with this project. The Consultant team must work together in partnership with the City, BSNF and impacted property owners to coordinate and conduct joint reviews at critical milestones throughout the project. In addition to addressing the vehicle and train traffic, the project team will offer an extensive public outreach and engagement process with the many project area stakeholders to ensure the pedestrian, bicycle, and transit improvements meet the immediate needs of the area, as well as, to serve the long-range vision. II. Consultant Selection Process and Project Schedule It is the City’s intent to hire a single Consultant Team capable of handling the following duties: Planning, Urban Design, Landscaping, Hydraulics Engineering, Public and Stakeholder Involvement, Railroad and Public Utilities Commission Experience, Roadway Design, Structural Engineering, ROW Plan Production and Design Support during Construction. Consultants should make sure to address their capabilities, experience and expertise in all of these areas. Traffic Engineering was previously completed with the Alternatives Analysis study. Consultant teams do not need to include Traffic Engineering (traffic volumes, turning movements and traffic count projections) with their Proposals. The City will provide this data to the selected Consultant. The Consultant Team will be expected to be familiar with the Larimer County Urban Area Street Standards (LCUASS) and the Colorado Department of Transportation (CDOT) Standard Specifications for Road and Bridge Construction. On time delivery is imperative for this project. Proposing teams must explain their approach and innovative delivery strategy to ensure an efficient schedule. Consultants shall submit a detailed project schedule outlining all phases of the project including critical, milestone dates. The City has listed anticipated dates for the Consultant Selection and Project Schedule as noted below.  Consultant Selection Process:  Pre-Proposal Meeting June 24, 2015  RFP Submittal Deadline July 8, 2015  Conduct Interviews July 20, 2015  Select and Notify Consultant Week of July 27, 2015 RFP 8134 Vine / Lemay / BNSF Improvements Project Page 6 of 33  Project Schedule: o It is the City’s goal to prudently spend the $1M appropriation for this budget cycle (2015-2016) available for the preliminary design, right-of-way acquisition, public outreach and staff time. Below are a few major task items, identified to help us meet our goals. We are interested in your proven ability to responsibly allocate the funding and to create a schedule through 2016; along with expected deliverables at the end of 2016:  BNSF Coordination  Lemay Avenue Realignment (Horizontal and Vertical)  Right-of-Way Acquisition  Project Clearances  Local Street Options and Connections (Existing Vine and Lemay)  Renderings and Exhibits  Neighborhood Meetings, Listening Sessions, Open Houses  Construction Phasing Alternatives and Funding Options Due to the potential for Federal funding sources for this project, Consultant costs / fees will not be considered when evaluating the proposals. The City will negotiate the costs / fees with the successful Consultant after the evaluation process has been completed. The Contract will be set up in a “Cost Plus Fixed Fee” format. The executed design contract will be set up in a manner so that the City may, at our discretion, extend the contract for final design and construction support services via a negotiated agreement; as additional project funding becomes available. The Consultant will be tasked with creating a unique “identity” for this project with respect to urban design and landscape architecture to create a sense of place. The design must be sensitive to the needs of the existing neighborhoods (Andersonville and Alta Vista) and will require creative solutions to improve connectivity and services for these residents. III. Scope of Work The following is an outline of a general scope of work. The Consultant shall expand each of the tasks listed below. Additional tasks, if deemed necessary by the Consultant, shall be added to the list to ensure a good product.  Project Kick-Off Phase: City Tasks  Provide Aerial Maps  Provide Existing Topographic Survey - per the High Accuracy Reference Network (HARN), tied to the City of Fort Collins Groundmaster Coordinate System (Horizontal) and the City of Fort Collins Vertical Control Network (NGVD 1929 - Unadjusted Vertical) – Expected Fall of 2015  Provide a Digital Copy (CAD Format) of the Existing Surface and Point Files RFP 8134 Vine / Lemay / BNSF Improvements Project Page 7 of 33  Provide Property Analysis Map – Ownership, Property Lines, Relevant Easements and Current Tenants based upon Title Commitments Consultant Tasks  Complete a Survey Request Form to the City of Fort Collins Survey Department  Produce Mapping based upon information provided by the City  Follow Up with Utility Companies to ensure accurate information is presented  Preliminary Engineering Phase: This Phase entails development of a preliminary engineering plan set or Field Inspection Review (FIR) 30% level design. The following design considerations shall be addressed:  BNSF Railway and the Public Utilities Commission  Safety and Drive Access Improvements  Public vetting of the Alternatives Analysis, Feedback and Preferred Alternative  Proposed Property Impacts  Proposed Floodplain Impacts  Thorough Utility Design, including storm sewer, water quality and outfall location(s)  Pedestrian, Bicycle and Transit Facilities  Pavement Design and Geotechnical Engineering Report – To Be Determined  Conceptual Urban Design, Landscaping and Irrigation  Thorough Plan for obtaining Clearances (Federalized and non-Federalized) The following activities shall be completed within this phase of the project. Work items are identified according to City and Consultant tasks. City Tasks  Coordination with impacted businesses and residents regarding proposed improvements  Provide Legal Descriptions and Exhibits for right-of-way (ROW), temporary construction easements (TCE) and permanent easement acquisitions. City Staff will handle all property negotiations; including value finding, appraisals, offers, negotiations and closings. Consultant Tasks  All tasks necessary to deliver Preliminary Engineering Design (Field Inspection Review - FIR) Plans, Construction Specifications (including Standard Special Provisions and Project Specific Special Provisions), Quantity Take-Offs, Bid Tabulations and Cost Estimates. Plans must be produced in accordance with all Colorado Department of Transportation (CDOT) and Larimer County Urban Area Street Standards (LCUASS). Plans, specs, quantity take-offs, bid tabulations, and cost estimates will be submitted to the City both as hard copies and electronically. The Consultant is fully responsible for the Quality Assurance and Quality Control (QA / QC) of the plan set. RFP 8134 Vine / Lemay / BNSF Improvements Project Page 8 of 33  Development of two (2) urban design and landscape concept plans. One plan will be selected and developed during the Final Engineering Phase. o Urban design elements may include the following:  Treatment of Bicycle and Pedestrian Facilities  Landscaping and Irrigation  Pedestrian Lighting  Median and Parkway Aesthetics  Coordination with Art in Public Places (separate Contract for Artist) o Historical / Cultural Interpretation of the Project Area  Identify property impacts and extent of ROW and TCE needed. The Consultant will provide a digital copy (CAD format) of the line work to the City of Fort Collins Survey Department for all proposed acquisition areas (temporary and permanent).  Development of Preliminary Drainage Report o Include identification of any proposed floodplain work o If requested by the Consultant, the City will provide floodplain cross sections at the time of initial topographic survey work. Cross section locations must be included on the Survey Request Form.  Multi-Modal Analysis o Examine interaction of all modes of transportation (vehicular, bicycle, pedestrian, and transit) within the project area o Adequately size lanes, access points and crossing locations  Thorough Utility Design o Coordinate with City Utilities Departments, including but not limited to: Water/Wastewater, Stormwater, Light & Power, Fiber Optic and Traffic o Coordinate with all private utilities potentially impacted by the improvements o Determine extent and location of any utility relocations o Develop preliminary level storm water improvement plans o Incorporate Master Plan documents for all public and private utilities  Development of a Pavement Design and Geotechnical Engineering Report o To include subsurface exploration (borings) with laboratory test results o The City will provide 20-year and 30-year Equivalent Single Axle Loads (ESAL’s) for the Consultants pavement design calculations o To include recommendations for Hot Mix Asphalt (HMA) and Portland Cement Concrete (PCC) pavement sections  Preliminary Engineering Phase Deliverables:  Preliminary Engineering Project Schedule RFP 8134 Vine / Lemay / BNSF Improvements Project Page 9 of 33  Meeting Minutes (see Public and Stake Holder Involvement Section for anticipated meetings)  Preliminary Drainage Report  Alternatives Analysis Report highlighting pros / cons and Recommended Alternative  Pavement Design and Geotechnical Engineering Report  Two (2) Urban Design and Landscape Concept Alternatives  Four (4) Preliminary plan sets (Black and White, 11x17)  One (1) .pdf file of the plan set  One (1) Digital copy of the design drawings (AutoCAD format)  One (1) Electronic copy of Preliminary Project Specification Book  Project Bid Tab and Opinion of Probable Cost  Renderings and Exhibits  Consultants plan for Obtaining all Clearances  Meeting Minutes and comment responses  Summary of Open Houses, Neighborhood Meetings, Design Charrettes, etc. All work shall be based upon the requirements and guidelines found in the following reports:  Larimer County Urban Area Street Standards (LCUASS) April 1, 2007 o www.larimer.org/engineering/GMARdStds/UrbanSt.htm  City of Fort Collins “Master Street Plan” December 18, 2011 o www.fcgov.com/transportationplanning/msp.php  City of Fort Collins “Multimodal Transportation Level of Service Criteria” 1997 o www.larimer.org/engineering/GMARdStds/ApdxH_04_01_2007.pdf  City of Fort Collins “Pedestrian Plan” (2011) o www.fcgov.com/transportationplanning/pedplan.php  City of Fort Collins “2014 Bicycle Master Plan” December 2014 o www.fcgov.com/bicycling/pdf/2014BicycleMasterPlan_adopted_final.pdf  City of Fort Collins “Transfort Strategic Plan 2009” o www.ridetransfort.com/abouttransfort/plans-and-projects/transfort-strategic-plan  Mountain Vista Subarea Plan – Referenced Above  Colorado Department of Transportation Standard Specifications for Road and Bridge Construction 2011  Colorado Department of Transportation Standard Plans, M&S Standards April, 2012 IV. Public and Stakeholder Involvement The Consultant will develop and implement an Outreach and Communication Plan which addresses public involvement and stakeholder coordination. The process will include potentially affected interests such as City Council, multiple City departments, BNSF Railway, area property and business owners and advocacy groups. RFP 8134 Vine / Lemay / BNSF Improvements Project Page 10 of 33 Consultant tasks to support the City’s public and stakeholder involvement process include:  Graphics production / reproduction  Public mailing preparation  Attendance / participation at property owner meetings and project open house events  Preparation of presentation materials  Development of press releases / media materials  Attendance at public meetings For proposal purposes please plan on attending and providing graphical support for the following:  Preliminary Engineering Phase: o Three (3) Public Open House / Neighborhood Meetings o One (1) City Council Work Session o Six (6) Project Coordination Meetings o Two (2) Utility Coordination Meetings o Two (2) BNSF / PUC Coordination Meetings V. National Environmental Policy Act (NEPA) Special Requirements The Consultant will be responsible for preparing documents in accordance with the National Environmental Policy Act of 1969 (NEPA); along with all federal, state and local environmental regulations. Most local agency projects will be covered by a Categorical Exclusion (CAT-EX). All applicable documents will be in CDOT format and presented to CDOT / FHWA as required. History The Consultant will be asked to assist the City with completing the Section 106 survey work. The consultant will submit Colorado Office of Archaeology and Historic Preservation (OAHP) site forms, topographic and sketch maps, photographs, any relevant documentation of each site recorded and a cultural resources report including determination of eligibility and effects for each recorded site for this project to the CDOT Historian. The report will provide a history of the project corridor’s commercial and social development. The report will conform to the standards set by the OAHP. These determinations will be included in the cover letter, forms, and report submitted to the State Historic Preservation Office (SHPO) by the CDOT Historian. For proposal purposes, please plan on surveying, researching, and documenting three (3) possible historic properties within the Area of Potential Effect as required for compliance with Section 106 of the National Historic Preservation Act, as amended. VI. Contact Information Engineering Department Contact: Tim Kemp, PE, LEED AP Capital Projects Engineer RFP 8134 Vine / Lemay / BNSF Improvements Project Page 11 of 33 970.416.2719 tkemp@fcgov.com City of Fort Collins Engineering Department 215 North Mason PO Box 580 Fort Collins, CO 80522-0580 VII. Attachments 1. East Vine / Lemay Intersection Realignment Project Development Report 2. 30% Design Plans for East Vine Drive Relocation (Suniga Drive) 3. Suniga / Lemay Multi-Modal and Freight Connectivity Project o 2015 TIGER Grant Application Narrative o 2015 TIGER Grant Appendix C – Benefit / Cost Analysis o 2015 TIGER Grant Appendix D – Letters of Support VIII. REVIEW AND ASSESSMENT Professional firms will be evaluated on the following criteria. These criteria will be the basis for review and assessment of the written proposals and optional interview session. At the discretion of the City, interviews of the top rated firms may be conducted. 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 address all elements of the RFP? Does the proposal show an understanding of the project objectives, methodology to be used and results/outcomes required by the project? Are there any exceptions to the specifications, Scope of Work, or agreement? 2.0 Assigned Personnel Do the persons who will be working on the project have the necessary skills and qualifications? Are sufficient people of the requisite skills and qualifications 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? RFP 8134 Vine / Lemay / BNSF Improvements Project Page 12 of 33 1.0 Motivation Is the firm interested and are they capable of doing the work in the required time frame? 3.0 Firm Capability Does the firm have the resources, financial strength, capacity and support capabilities required to successfully complete the project on-time and in- budget? Has the firm successfully completed previous projects of this type and scope? 1.0 UDBE Is the primary firm a UDBE or has the primary firm submitted UDBE participation that meets or exceeds UDBE goal for the project? 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? RFP 8134 Vine / Lemay / BNSF Improvements Project Page 13 of 33 PROFESSIONAL SERVICES AGREEMENT WORK ORDER TYPE 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 , 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 any project Work Orders for , issued by the City. A blank sample of a work order is attached hereto as Exhibit "A", consisting of ( ) pages and is incorporated herein by this reference. A general scope of services is attached hereto as Exhibit “B", consisting of ( ) pages and is incorporated herein by this reference. The City reserves the right to independently bid any project rather than issuing a Work Order to the Professional for the same pursuant to this Agreement. Irrespective of references in Exhibit A to certain named third parties, Professional shall be solely responsible for performance of all duties hereunder. 2. The Work Schedule. The services to be performed pursuant to this Agreement shall be performed in accordance with the Work Schedule stated on each Work Order. 3. Time of Commencement and Completion of Services. The services to be performed pursuant to this Agreement shall be initiated as specified on each Work Order. Time is of the essence. Any extensions of any time limit must be agreed upon in writing by the parties hereto. 4. Contract Period. This Agreement shall commence , 20 , and shall continue in full force and effect until , 20 , unless sooner terminated as herein provided. In addition, at the option of the City, the Agreement may be extended for additional one year periods not to exceed ( ) 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 Professional and mailed no later than thirty (30) days prior to contract end. 5. Early Termination by City/Notice. Notwithstanding the time periods contained herein, the City may terminate this Agreement at any time without cause by providing written notice of termination to the Professional. Such notice shall be delivered at least fifteen (15) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties. All notices provided under this agreement shall be effective when mailed, postage prepaid and sent to the following address: Professional: City: Copy to: RFP 8134 Vine / Lemay / BNSF Improvements Project Page 14 of 33 Attn: City of Fort Collins Attn: PO Box 580 Fort Collins, CO 80522 City of Fort Collins Attn: Purchasing Dept. PO Box 580 Fort Collins, CO 80522 In the event of any such early termination by the City, the Professional shall be paid for services rendered prior to the date of termination subject only to the satisfactory performance of the Professional's obligations under this Agreement. Such payment shall be the Professional's sole right and remedy for such termination. 6. Design, Project Insurance 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 attorney’s 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 insurance in accordance with Exhibit , consisting of one (1) page, attached hereto and incorporated herein. 7. Compensation. In consideration of services to be performed pursuant to this Agreement, the City agrees to pay Professional on a time and reimbursable direct cost basis designated in Exhibit "B", consisting of ( ) page(s), attached hereto and incorporated herein by this reference. At the election of the City, each Work Order may contain a maximum fee, which shall be negotiated by the parties hereto for each such Work Order. 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 to the Work Order and upon approval of the Professional's direct 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. 8. 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. 9. Project Drawings. 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, prepared on stable mylar base material using a non-fading process to provide for long RFP 8134 Vine / Lemay / BNSF Improvements Project Page 15 of 33 storage and high quality reproduction. "CD" disc of the as-built drawings shall also be submitted to the owner in and AutoCAD version no older then the established city standard. 10. Monthly Report. Commencing thirty (30) days after Notice to Proceed is given on any Work Order and every thirty days thereafter, Professional is required to provide the City Representative with a written report of the status of the work with respect to the Work Order, 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. 11. 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. 12. Subcontractors. Professional may not subcontract any of the Work set forth in the Exhibit A, Statement of Work without the prior written consent of the city, which shall not be unreasonably withheld. If any of the Work is subcontracted hereunder (with the consent of the City), then the following provisions shall apply: (a) the subcontractor must be a reputable, qualified firm with an established record of successful performance in its respective trade performing identical or substantially similar work, (b) the subcontractor will be required to comply with all applicable terms of this Agreement, (c) the subcontract will not create any contractual relationship between any such subcontractor and the City, nor will it obligate the City to pay or see to the payment of any subcontractor, and (d) the work of the subcontractor will be subject to inspection by the City to the same extent as the work of the Professional. 13. 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. 14. 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. 15. 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. RFP 8134 Vine / Lemay / BNSF Improvements Project Page 16 of 33 16. 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. 17. 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. 18. Law/Severability. The laws of the State of Colorado shall govern the construction, interpretation, execution and enforcement of this Agreement. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement. 19. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et. seq., Professional represents and agrees that: a. As of the date of this Agreement: 1. Professional does not knowingly employ or contract with an illegal alien who will perform work under this Agreement; and 2. Professional will participate in either the e-Verify program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, administered by the United States Department of Homeland Security (the “e-Verify Program”) or the Department Program (the “Department Program”), an employment verification program established pursuant to Section 8-17.5- 102(5)(c) C.R.S. in order to confirm the employment eligibility of all newly hired employees to perform work under this Agreement. b. Professional shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or knowingly enter into a contract with a subcontractor that knowingly employs or contracts with an illegal alien to perform work under this Agreement. c. Professional is prohibited from using the e-Verify Program or Department Program procedures to undertake pre-employment screening of job applicants while this Agreement is being performed. RFP 8134 Vine / Lemay / BNSF Improvements Project Page 17 of 33 d. If Professional obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, Professional shall: 1. Notify such subcontractor and the City within three days that Professional has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and 2. Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Professional shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. e. Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment (the “Department”) made in the course of an investigation that the Department undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. f. If Professional violates any provision of this Agreement pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this Agreement is so terminated, Professional shall be liable for actual and consequential damages to the City arising out of Professional’s violation of Subsection 8-17.5-102, C.R.S. g. The City will notify the Office of the Secretary of State if Professional violates this provision of this Agreement and the City terminates the Agreement for such breach. 20. Special Provisions. Special provisions or conditions relating to the services to be performed pursuant to this Agreement are set forth in Exhibit " " - Confidentiality, consisting of one (1) pages, attached hereto and incorporated herein by this reference. RFP 8134 Vine / Lemay / BNSF Improvements Project Page 18 of 33 THE CITY OF FORT COLLINS, COLORADO By: Gerry Paul Purchasing Director DATE: ATTEST: City Clerk APPROVED AS TO FORM: Assistant City Attorney PROFESSIONAL'S NAME By: Printed: Title: CORPORATE PRESIDENT OR VICE PRESIDENT Date: RFP 8134 Vine / Lemay / BNSF Improvements Project Page 19 of 33 EXHIBIT A WORK ORDER FORM PURSUANT TO AN AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND DATED: Work Order Number: Purchase Order Number: Project Title: Commencement Date: Completion Date: Maximum Fee: (time and reimbursable direct costs): Project Description: Scope of Services: Professional agrees to perform the services identified above and on the attached forms in accordance with the terms and conditions contained herein and in the Professional Services Agreement between the parties. In the event of a conflict between or ambiguity in the terms of the Professional Services Agreement and this work order (including the attached forms) the Professional Services Agreement shall control. The attached forms consisting of ___ (_) pages are hereby accepted and incorporated herein, by this reference, and Notice to Proceed is hereby given. PROFESSIONAL By:_______________________________ Date:_____________________________ CITY OF FORT COLLINS By:_________________________________ Project Manager Date: ______________________________ By: _______________________________ Gerry Paul Purchasing Director (over $60,000.00) Date: ____________________________ RFP 8134 Vine / Lemay / BNSF Improvements Project Page 20 of 33 EXHIBIT INSURANCE REQUIREMENTS 1. The Professional will provide, from insurance companies acceptable to the City, the insurance coverage designated hereinafter and pay all costs. Before commencing work under this bid, the Professional shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies, and containing substantially the following statement: “The insurance evidenced by this Certificate will not reduce coverage or limits and will not be cancelled, except after thirty (30) days written notice has been received by the City of Fort Collins.” In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and maintain, at the expense of the Professional, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Professional under this Agreement. The City, its officers, agents and employees shall be named as additional insureds on the Professional 's general liability and automobile liability insurance policies for any claims arising out of work performed under this Agreement. 2. Insurance coverages shall be as follows: A. Workers' Compensation & Employer's Liability. The Professional shall maintain during the life of this Agreement for all of the Professional's employees engaged in work performed under this agreement: 1. Workers' Compensation insurance with statutory limits as required by Colorado law. 2. Employer's Liability insurance with limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease each employee. B. Commercial General & Vehicle Liability. The Professional shall maintain during the life of this Agreement such commercial general liability and automobile liability insurance as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for each coverage, Commercial General and Vehicle, shall not be less than $1,000,000 combined single limits for bodily injury and property damage. In the event any work is performed by a subcontractor, the Professional shall be responsible for any liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which liability is not covered by the subcontractor's insurance. C. Errors & Omissions. The Professional shall maintain errors and omissions insurance in the amount of $1,000,000. RFP 8134 Vine / Lemay / BNSF Improvements Project Page 21 of 33 EXHIBIT CONFIDENTIALITY IN CONNECTION WITH SERVICES provided to the City of Fort Collins (the “City”) pursuant to this Agreement (the “Agreement”), the Professional hereby acknowledges that it has been informed that the City has established policies and procedures with regard to the handling of confidential information and other sensitive materials. In consideration of access to certain information, data and material (hereinafter individually and collectively, regardless of nature, referred to as “information”) that are the property of and/or relate to the City or its employees, customers or suppliers, which access is related to the performance of services that the Professional has agreed to perform, the Professional hereby acknowledges and agrees as follows: That information that has or will come into its possession or knowledge in connection with the performance of services for the City may be confidential and/or proprietary. The Professional agrees to treat as confidential (a) all information that is owned by the City, or that relates to the business of the City, or that is used by the City in carrying on business, and (b) all information that is proprietary to a third party (including but not limited to customers and suppliers of the City). The Professional shall not disclose any such information to any person not having a legitimate need-to-know for purposes authorized by the City. Further, the Professional shall not use such information to obtain any economic or other benefit for itself, or any third party, except as specifically authorized by the City. The foregoing to the contrary notwithstanding, the Professional understands that it shall have no obligation under this Agreement with respect to information and material that (a) becomes generally known to the public by publication or some means other than a breach of duty of this Agreement, or (b) is required by law, regulation or court order to be disclosed, provided that the request for such disclosure is proper and the disclosure does not exceed that which is required. In the event of any disclosure under (b) above, the Professional shall furnish a copy of this Agreement to anyone to whom it is required to make such disclosure and shall promptly advise the City in writing of each such disclosure. In the event that the Professional ceases to perform services for the City, or the City so requests for any reason, the Professional shall promptly return to the City any and all information described hereinabove, including all copies, notes and/or summaries (handwritten or mechanically produced) thereof, in its possession or control or as to which it otherwise has access. The Professional understands and agrees that the City’s remedies at law for a breach of the Professional’s obligations under this Confidentiality Agreement may be inadequate and that the City shall, in the event of any such breach, be entitled to seek equitable relief (including without limitation preliminary and permanent injunctive relief and specific performance) in addition to all other remedies provided hereunder or available at law. RFP 8134 Vine / Lemay / BNSF Improvements Project Page 22 of 33 EXHIBIT FEDERAL TRANSIT ADMINISTRATION TERMS & CONDITIONS 1. NO GOVERNMENT OBLIGATION TO THIRD PARTIES No Obligation by the Federal Government. (1) The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. (2) The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. 2. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS Program Fraud and False or Fraudulent Statements or Related Acts. (1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et 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. 3. ACCESS TO RECORDS AND REPORTS Access to Records - The following access to records requirements apply to this Contract: A. Where the Purchaser is not a State but a local government and is the FTA Recipient RFP 8134 Vine / Lemay / BNSF Improvements Project Page 23 of 33 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. B. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. C. The Contractor agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11). D. FTA does not require the inclusion of these requirements in subcontracts. Requirements for Access to Records and Reports by Types of Contract Contract Characteristics Operationa l Service Contract Turnkey Constructio n Architectural Engineering Acquisitio n 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 RFP 8134 Vine / Lemay / BNSF Improvements Project Page 24 of 33 4. FEDERAL CHANGES Federal Changes - Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract. 5. TERMINATION A. Termination for Convenience (General Provision) The (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. 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 Convenience (Professional or Transit Service Contracts) The (Recipient), by written notice, may terminate this contract, in whole or in part, when it is RFP 8134 Vine / Lemay / BNSF Improvements Project Page 25 of 33 in the Government's interest. If this contract is terminated, the Recipient shall be liable only for payment under the payment provisions of this contract for services rendered before the effective date of termination. F. Termination for Default (Supplies and Service) If the Contractor fails to deliver supplies or to perform the services within the time specified in this contract or any extension or if the Contractor fails to comply with any other provisions of this contract, the (Recipient) may terminate this contract for default. The (Recipient) shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default. The Contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner or performance set forth in this contract. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Recipient. G. Termination for Default (Transportation Services) If the Contractor fails to pick up the commodities or to perform the services, including delivery services, within the time specified in this contract or any extension or if the Contractor fails to comply with any other provisions of this contract, the (Recipient) may terminate this contract for default. The (Recipient) shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of default. The Contractor will only be paid the contract price for services performed in accordance with the manner of performance set forth in this contract. If this contract is terminated while the Contractor has possession of Recipient goods, the Contractor shall, upon direction of the (Recipient), protect and preserve the goods until surrendered to the Recipient or its agent. The Contractor and (Recipient) shall agree on payment for the preservation and protection of goods. Failure to agree on an amount will be resolved under the Dispute clause. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the (Recipient). H. Termination for Default (Construction) If the Contractor refuses or fails to prosecute the work or any separable part, with the diligence that will insure its completion within the time specified in this contract or any extension or fails to complete the work within this time, or if the Contractor fails to comply with any other provisions of this contract, the (Recipient) may terminate this contract for default. The (Recipient) shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default. In this event, the Recipient may take over the work and compete it by contract or otherwise, and may take possession of and use any materials, appliances, and plant on the work site necessary for completing the work. The Contractor and its sureties shall be liable for any damage to the Recipient resulting from the Contractor's refusal or failure to complete the work within specified time, whether or not the Contractor's right to proceed with the work is terminated. This liability includes any increased costs incurred by the Recipient in completing the work. The Contractor's right to proceed shall not be terminated nor the Contractor charged with damages under this clause if- 1. the delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor. Examples of such RFP 8134 Vine / Lemay / BNSF Improvements Project Page 26 of 33 causes include: acts of God, acts of the Recipient, acts of another Contractor in the performance of a contract with the Recipient, epidemics, quarantine restrictions, strikes, freight embargoes; and 2. the contractor, within [10] days from the beginning of any delay, notifies the (Recipient) in writing of the causes of delay. If in the judgment of the (Recipient), the delay is excusable, the time for completing the work shall be extended. The judgment of the (Recipient) shall be final and conclusive on the parties, but subject to appeal under the Disputes clauses. If, after termination of the Contractor's right to proceed, it is determined that the Contractor was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the Recipient. I. Termination for Convenience or Default (Architect and Engineering) The (Recipient) may terminate this contract in whole or in part, for the Recipient's convenience or because of the failure of the Contractor to fulfill the contract obligations. The (Recipient) shall terminate by delivering to the Contractor a Notice of Termination specifying the nature, extent, and effective date of the termination. Upon receipt of the notice, the Contractor shall (1) immediately discontinue all services affected (unless the notice directs otherwise), and (2) deliver to the Contracting Officer all data, drawings, specifications, reports, estimates, summaries, and other information and materials accumulated in performing this contract, whether completed or in process. If the termination is for the convenience of the Recipient, the Contracting Officer shall make an equitable adjustment in the contract price but shall allow no anticipated profit on unperformed services. If the termination is for failure of the Contractor to fulfill the contract obligations, the Recipient may complete the work by contact or otherwise and the Contractor shall be liable for any additional cost incurred by the Recipient. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Recipient. J. Termination for Convenience of Default (Cost-Type Contracts) The (Recipient) may terminate this contract, or any portion of it, by serving a notice or termination on the Contractor. The notice shall state whether the termination is for convenience of the (Recipient) or for the default of the Contractor. If the termination is for default, the notice shall state the manner in which the contractor has failed to perform the requirements of the contract. The Contractor shall account for any property in its possession paid for from funds received from the (Recipient), or property supplied to the Contractor by the (Recipient). If the termination is for default, the (Recipient) may fix the fee, if the contract provides for a fee, to be paid the contractor in proportion to the value, if any, of work performed up to the time of termination. The Contractor shall promptly submit its termination claim to the (Recipient) and the parties shall negotiate the termination settlement to be paid the Contractor. If the termination is for the convenience of the (Recipient), the Contractor shall be paid its contract close-out costs, and a fee, if the contract provided for payment of a fee, in proportion to the work performed up to the time of termination. RFP 8134 Vine / Lemay / BNSF Improvements Project Page 27 of 33 If, after serving a notice of termination for default, the (Recipient) determines that the Contractor has an excusable reason for not performing, such as strike, fire, flood, events which are not the fault of and are beyond the control of the contractor, the (Recipient), after setting up a new work schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience. 6. CIVIL RIGHTS REQUIREMENTS Civil Rights - The following requirements apply to the underlying contract: (1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. (2) Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: (a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (b) 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 RFP 8134 Vine / Lemay / BNSF Improvements Project Page 28 of 33 addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (3) The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. 7. DISADVANTAGED BUSINESS ENTERPRISE (DBE) a. This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The national goal for participation of Disadvantaged Business Enterprises (DBE) is 10%. The agency’s overall goal for DBE participation is 5 %. A separate contract goal [has not] been established for this procurement. b. The contractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of this DOT-assisted contract. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as 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. {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 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 City of Fort Collins whenever a DBE subcontractor performing work related to this contract is terminated or fails to complete its work, and must make good faith efforts to engage another DBE subcontractor to perform at least the same amount of work. The contractor may not terminate any DBE subcontractor and perform that work through its own forces or those of an affiliate without prior written consent of City of Fort Collins. 8. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1E, 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 comply with any (name of grantee) requests which would cause (name of grantee) to be in violation of the FTA terms and conditions. RFP 8134 Vine / Lemay / BNSF Improvements Project Page 29 of 33 9. GOVERNMENT-WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) Background and Applicability In conjunction with the Office of Management and Budget and other affected Federal agencies, DOT published an update to 49 CFR Part 29 on November 26, 2003. This government-wide regulation implements Executive Order 12549, Debarment and Suspension, Executive Order 12689, Debarment and Suspension, and 31 U.S.C. 6101 note (Section 2455, Public Law 103-355, 108 Stat. 3327). The provisions of Part 29 apply to all grantee contracts and subcontracts at any level expected to equal or exceed $25,000 as well as any contract or subcontract (at any level) for Federally required auditing services. 49 CFR 29.220(b). This represents a change from prior practice in that the dollar threshold for application of these rules has been lowered from $100,000 to $25,000. These are contracts and subcontracts referred to in the regulation as “covered transactions.” Grantees, contractors, and subcontractors (at any level) that enter into covered transactions are required to verify that the entity (as well as its principals and affiliates) they propose to contract or subcontract with is not excluded or disqualified. They do this by (a) Checking the Excluded Parties List System, (b) Collecting a certification from that person, or (c) Adding a clause or condition to the contract or subcontract. This represents a change from prior practice in that certification is still acceptable but is no longer required. 49 CFR 29.300. Grantees, contractors, and subcontractors who enter into covered transactions also must require the entities they contract with to comply with 49 CFR 29, subpart C and include this requirement in their own subsequent covered transactions (i.e., the requirement flows down to subcontracts at all levels). Clause Language The following clause language is suggested, not mandatory. It incorporates the optional method of verifying that contractors are not excluded or disqualified by certification. Suspension and Debarment This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is required to verify that none of the contractor, its principals, as defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29.945. The contractor is required to comply with 49 CFR 29, Subpart C and must include the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into. By signing and submitting its bid or proposal, the bidder or proposer certifies as follows: The certification in this clause is a material representation of fact relied upon by {insert agency name}. If it is later determined that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to {insert agency name}, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 49 CFR 29, Subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. RFP 8134 Vine / Lemay / BNSF Improvements Project Page 30 of 33 10. BREACHES AND DISPUTE RESOLUTION Disputes - Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of City's [title of employee]. This decision shall be final and conclusive unless within [ten (10)] days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the [title of employee]. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the [title of employee] shall be binding upon the Contractor and the Contractor shall abide be the decision. Performance During Dispute - Unless otherwise directed by City, Contractor shall continue performance under this Contract while matters in dispute are being resolved. Claims for Damages - Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of his employees, agents or others for whose acts he is legally liable, a claim for damages therefor shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage. Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other matters in question between the City and the Contractor arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of competent jurisdiction within the State in which the City is located. Rights and Remedies - The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by the City, (Architect) or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. 11. LOBBYING Modifications have been made to the Clause pursuant to Section 10 of the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - Lobbying Certification and Disclosure of Lobbying Activities for third party contractors are mandated by 31 U.S.C. 1352(b)(5), as amended by Section 10 of the Lobbying Disclosure Act of 1995, and DOT implementing regulation, "New Restrictions on Lobbying," at 49 CFR § 20.110(d) - Language in Lobbying Certification is mandated by 49 CFR Part 19, Appendix A, Section 7, which provides that contractors file the certification required by 49 CFR Part 20, Appendix A. Modifications have been made to the Lobbying Certification pursuant to Section 10 of the Lobbying Disclosure Act of 1995. - Use of "Disclosure of Lobbying Activities," Standard Form-LLL set forth in Appendix B of 49 CFR Part 20, as amended by "Government wide Guidance For New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96) is mandated by 49 CFR Part 20, Appendix A. Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.] - RFP 8134 Vine / Lemay / BNSF Improvements Project Page 31 of 33 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 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.] RFP 8134 Vine / Lemay / BNSF Improvements Project Page 32 of 33 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 12. CLEAN AIR Clean Air – (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 13. CLEAN WATER REQUIREMENTS Clean Water – (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 14. FLY AMERICA REQUIREMENTS The Contractor agrees to comply with 49 U.S.C. 40118 (the “Fly America” Act) in accordance with the General Services Administration’s regulations at 41 CFR Part 301-10, which provide that recipients and subrecipients of Federal funds and their contractors are required to use U.S. Flag air carriers for U.S Government-financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation. 15. SEISMIC SAFETY REQUIREMENTS RFP 8134 Vine / Lemay / BNSF Improvements Project Page 33 of 33 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. 16. ENERGY CONSERVATION REQUIREMENTS Energy Conservation - The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. 17. 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. 5307/5309/5 311 None None unless non- competitive award None None unless non- competitiv e 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 3 18 CFR 18.36 (i)