HomeMy WebLinkAbout466828 AECOM TECHNICAL SERVICES INC - CONTRACT - RFP - 8475 CIVIL ENGINEERING PROFESSIONAL ON-CALLPROFESSIONAL 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 AECOM TECHNICAL SERVICES, INC., hereinafter referred to as
the "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 8475 Civil Engineering Professional On-Call, issued by the City. A
blank sample of a work order is attached hereto as Exhibit A, consisting of one (1) page
and is incorporated herein by this reference. A general scope of services is attached
hereto as Exhibit B, consisting of three (3) 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, the Professional shall be solely
responsible for performance of all duties hereunder. The term “Work” as used in this
Agreement shall include the services and deliverables contained in Exhibit A and any
Work Orders issued by the City.
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 June 1, 2017, and shall continue in full
force and effect until May 31, 2018, unless sooner terminated as herein provided. In
addition, at the option of the City, the Agreement may be extended for additional one year
periods not to exceed four (4) additional one year periods. Renewals, pricing changes and
amendments to the Agreement shall be negotiated by and agreed to by both parties at the
time of renewal. 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,
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postage prepaid and sent to the following address:
Professional: City: Copy to:
AECOM Technical Services, Inc.
Attn: Alan Eckman
6200 South Quebec St.
Greenwood Village, CO 80111
City of Fort Collins
Attn: Caleb Feaver
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 is responsible for and shall ensure the design Work under any Work
Order complies with the most recent revision of the Americans with Disabilities Act of 1990
(“ADA”) Standards for Accessible Design, separate from and in addition to compliance
with applicable building codes. Professional shall ensure that any change orders or other
changes to the Work comply with the ADA Standards for Accessible Design. Professional
shall be responsible for any necessary redesign due to failure to comply with ADA
requirements, including any costs for such redesign. 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 C,
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 the Professional on a time and reimbursable direct cost basis
designated in Exhibit D, consisting of nine (9) pages, 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.
Each work order will be limited to $150,000 unless otherwise authorized by the Director of
Purchasing. 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.
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8. License. Upon execution of this Agreement, the Professional grants to the City an
irrevocable license to use any and all sketches, drawings, specifications, designs,
blueprints, data files, calculations, studies, analysis, renderings, models and other Work
Order deliverables (the “Instruments of Service”), in any form whatsoever and in any
medium expressed, for purposes of constructing, using, maintaining, altering and adding
to the project, provided that the City substantially performs its obligations under the
Agreement. The license granted hereunder permits the City and third parties reasonably
authorized by the City to reproduce applicable portions of the Instruments of Service for
use in performing services or construction for the project. In addition, the license granted
hereunder shall permit the City and third parties reasonably authorized by the City to
reproduce and utilize the Instruments of Service for similar projects, provided however, in
such event the Professional shall not be held responsible for the design to the extent the
City deviates from the Instruments of Service. This license shall survive termination of the
Agreement by default or otherwise.
9. City Representative. The City will designate, prior to commencement of the 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.
10. Project Drawings. Upon request and before final payment, the Professional shall provide
the City with reproducible drawings of the project containing accurate information on the
project as constructed. "CD" disc of the as-built drawings shall also be submitted to the
owner in pdf and AutoCAD format in a version no older then the established City standard.
The Professional acknowledges the City is a governmental entity subject to the Colorado
Open Records Act, C.R.S. §§ 24-72-200.1, et seq. (the “CORA”), and documents in the
City’s possession may be considered public records subject to disclosure under the
CORA.
11. Monthly Report. Commencing thirty (30) days after Notice to Proceed is given on any
Work Order and every thirty days thereafter, the 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.
12. Independent Contractor. The services to be performed by the 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 the Professional's compensation
hereunder for the payment of FICA, Workers' Compensation, other taxes or benefits or for
any other purpose.
13. Subcontractors. The 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
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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.
The Professional shall require all subcontractors performing Work hereunder to maintain
insurance coverage naming the City as an additional insured under this Agreement of the
type and with the limits specified within Exhibit C, consisting of one (1) page attached
hereto and incorporated herein by this reference. The Professional shall maintain a copy
of each subcontract’s certificate evidencing the required insurance. Upon request, the
Professional shall promptly provide the City with a copy of such certificate(s).
14. 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.
15. 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.
16. 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.
17. 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.
18. 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,
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employees, agents and assigns and shall inure to the benefit of the respective survivors,
heirs, personal representatives, successors and assigns of said parties.
19. 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.
20. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et.
seq., the Professional represents and agrees that:
a. As of the date of this Agreement:
1. The Professional does not knowingly employ or contract with an illegal alien who
will perform work under this Agreement; and
2. The 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. The 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. The Professional is prohibited from using the e-Verify Program or Department Program
procedures to undertake pre-employment screening of job applicants while this
Agreement is being performed.
d. If the Professional obtains actual knowledge that a subcontractor performing work
under this Agreement knowingly employs or contracts with an illegal alien, the
Professional shall:
1. Notify such subcontractor and the City within three days that the 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 the 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. The Professional shall comply with any reasonable request by the Colorado
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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 the 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, the Professional shall be liable for actual and
consequential damages to the City arising out of the 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.
21. Special Provisions. Special provisions or conditions relating to the services to be
performed pursuant to this Agreement are set forth in Exhibit E - Confidentiality, consisting
of one (1) page, attached hereto and incorporated herein by this reference.
22. Federal Requirements. Special provisions or conditions relating to the services to be
performed pursuant to this Agreement are set forth in Exhibit F – Federal Terms and
Conditions, consisting of twenty-four (24) pages, attached hereto and incorporated herein
by this reference. In the event of a conflict between the terms of the Agreement, Work
Order or Federal Terms, the order of precedence shall be Federal Terms, Work Order,
Agreement.
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THE CITY OF FORT COLLINS, COLORADO
By:
Gerry Paul
Purchasing Director
DATE:
ATTEST:
APPROVED AS TO FORM:
AECOM TECHNICAL SERVICES, INC.
By:
Printed:
Title:
CORPORATE PRESIDENT OR VICE PRESIDENT
Date:
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Alan Eckman
6/6/2017
Vice President
Assistant City Attorney
6/8/2017
City Clerk
EXHIBIT A
WORK ORDER FORM
PURSUANT TO AN AGREEMENT BETWEEN
THE CITY OF FORT COLLINS
AND
AECOM Technical Services, Inc.
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:
The 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: ____________________________
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EXHIBIT B
SCOPE OF SERVICES
The following disciplines must be included by the Professional:
• Roadway and transportation engineering
• Traffic engineering
• Structural engineering
• Wet utility engineering
• Surveying
• CAD drafting
• Geotechnical engineering
• Landscape and irrigation design
• Environmental services
• Historic services
• Property acquisition services
• Property appraisal services
The Professional will work closely with City project managers to design and/or draft
conceptual, preliminary, and final improvement plans. Project-specific surveying may also be
required on some projects. The Professional will be responsible for producing plan
documents under the direction of a City project manager. The plan documents will typically
include, but not be limited to, the following:
• General notes
• Summary of quantities
• Removals
• Plan views
• Profile views
• Cross sections
• Specifications
• Construction notes
• Construction details
• Right-of-Way plans
The City funds, or partially funds, many projects using grants on a regular basis. The City
may ask the Professional to assist in the grant acquisition process, including the following
tasks:
• Assist with the securing of grant funding including the following:
o Traffic engineering and traffic studies
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o Identification of current problems
o Preparation of exhibits
o Preparation of narratives
o Recommended improvements to mitigate identified problems
o Conceptual cost estimates for recommended improvements
o Other grant application and administration support
The City may also ask the Professional to assist in all aspects of the project design,
calculation of plan quantities, plans required for right-of-way acquisition, and other work
related to producing construction documents. It is essential that the successful Professional
be familiar with the Larimer County Urban Area Street Standards (LCUASS) and Colorado
Department of Transportation (CDOT) standards, requirements, and procedures. Additional
requirements may include:
• Research existing parcel and right-of-way boundaries, legal descriptions,
easements, water rights, and similar information
• Property appraisals
• Property acquisition assistance
• Analyze, interpret, and present traffic engineering data including intersection
design, roundabout design, accident analysis, and pedestrian, bicycle, and
transit-specific design
• Create displays and graphic representations of various design project elements
for meetings, project web sites, public presentations, and City board and City
commission meetings
• Attend coordination and review meetings, public meetings, and property owner
meetings
• Coordinate with other consultants
• Perform environmental assessments in compliance with City and CDOT
standards
• Perform historic resource investigations and impact reports in compliance with
City and CDOT standards
The Professional may be required to provide design, drafting, and surveying services. The
Professional will work closely with a City Project Manager to produce the best possible
design within the budget constraints associated with the project. Survey data is often
collected by City crews; however there may be instances where the Professional will be
required to collect their own survey data because of City staff workload. The City does not
require specific design software be used, but final drawings shall be submitted to the City in
AutoCAD and PDF. Draft and final drawings shall become the sole property of the City.
Teams shall include personnel qualified by CDOT to complete the Federal acquisition
process. This includes, but is not limited to, appraisals, right-of-way plan preparation, and
negotiations. The City anticipates that in most cases City Real Estate Services will perform
negotiations on parcels not affected by Federal funds.
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The City is seeking a consultant that can excel at delivering projects with complex
requirements including City and CDOT standards, federal funding including CDOT oversight,
and publicly controversial projects. It is equally important that the Professional be able to
complete small, straightforward projects quickly, efficiently and cost-effectively.
The City’s intent is to use this Contract with a variety of funding sources, depending on the
project. For Federally funded projects, including CDOT and the Federal Transportation
Administration (FTA), the funding agency may establish a Disadvantaged Business
Enterprise (DBE) goal.
FIRM CEILING PRICE
The firm ceiling price for one year will not exceed $600,000 when totaled on Federal funded
projects. This firm ceiling price may be adjusted each year in the annual renewal process.
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EXHIBIT C
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.
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EXHIBIT D
COMPENSATION
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EXHIBIT E
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.
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EXHIBIT F
FEDERAL TERMS & CONDITIONS
FEDERAL TRANSIT ADMINISTRATION
FEDERALLY REQUIRED AND OTHER MODEL CONTRACT CLAUSES
1. 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.
2. 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
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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
(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
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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 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
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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
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
Applicability to Contracts
The Civil Rights Requirements apply to all contracts.
Flow Down
The Civil Rights requirements flow down to all third party contractors and their
contracts at every tier.
Model Clause/Language
The following clause was predicated on language contained at 49 CFR Part 19,
Appendix A, but FTA has shortened the lengthy text.
Civil Rights - The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as
amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of
1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49
U.S.C. § 5332, the Contractor agrees that it will not discriminate against any
employee or applicant for employment because of race, color, creed, national
origin, sex, age, or disability. In addition, the Contractor agrees to comply with
applicable Federal implementing regulations and other implementing
requirements FTA may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity
requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of
the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit
laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all
applicable equal employment opportunity requirements of U.S. Department
of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance
Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R.
Parts 60 et 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
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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.
6. 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 comply with any (name of grantee)
requests which would cause (name of grantee) to be in violation of the FTA terms
and conditions.
7. 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.
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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.
8. 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.
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.
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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 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.
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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 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
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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.
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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.
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.
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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.
10. BREACHES AND DISPUTE RESOLUTION
(49 CFR Part 18FTA Circular 4220.1E)
Applicability to Contracts
All contracts in excess of $100,000 shall contain provisions or conditions which will
allow for administrative, contractual, or legal remedies in instances where
contractors violate or breach contract terms, and provide for such sanctions and
penalties as may be appropriate. This may include provisions for bonding,
penalties for late or inadequate performance, retained earnings, liquidated
damages or other appropriate measures.
Flow Down
The Breaches and Dispute Resolutions requirements flow down to all tiers.
Model Clauses/Language
FTA does not prescribe the form or content of such provisions. What provisions
are developed will depend on the circumstances and the type of contract.
Recipients should consult legal counsel in developing appropriate clauses. The
following clauses are examples of provisions from various FTA third party
contracts.
Disputes - Disputes arising in the performance of this Contract which are not
resolved by agreement of the parties shall be decided in writing by the authorized
representative of (Recipient)'s [title of employee]. This decision shall be final and
conclusive unless within [ten (10)] days from the date of receipt of its copy, the
Contractor mails or otherwise furnishes a written appeal to the [title of employee].
In connection with any such appeal, the Contractor shall be afforded an opportunity
to be heard and to offer evidence in support of its position. The decision of the
[title of employee] shall be binding upon the Contractor and the Contractor shall
abide be the decision.
Performance During Dispute - Unless otherwise directed by (Recipient),
Contractor shall continue performance under this Contract while matters in dispute
are being resolved.
Claims for Damages - Should either party to the Contract suffer injury or damage
to person or property because of any act or omission of the party or of any of his
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employees, agents or others for whose acts he is legally liable, a claim for
damages therefor shall be made in writing to such other party within a reasonable
time after the first observance of such injury of damage.
Remedies - Unless this contract provides otherwise, all claims, counterclaims,
disputes and other matters in question between the (Recipient) and the Contractor
arising out of or relating to this agreement or its breach will be decided by
arbitration if the parties mutually agree, or in a court of competent jurisdiction within
the State in which the (Recipient) is located.
Rights and Remedies - The duties and obligations imposed by the Contract
Documents and the rights and remedies available thereunder shall be in addition to
and not a limitation of any duties, obligations, rights and remedies otherwise
imposed or available by law. No action or failure to act by the (Recipient),
(Architect) or Contractor shall constitute a waiver of any right or duty afforded any
of them under the Contract, nor shall any such action or failure to act constitute an
approval of or acquiescence in any breach thereunder, except as may be
specifically agreed in writing.
11. LOBBYING
(31 U.S.C. 1352 49 CFR Part 19 49 CFR Part 20)
Applicability to Contracts
The Lobbying requirements apply to Construction/Architectural and
Engineering/Acquisition of Rolling Stock/Professional Service Contract/Operational
Service Contract/Turnkey contracts.
Flow Down
The Lobbying requirements mandate the maximum flow down, pursuant to Byrd
Anti-Lobbying Amendment, 31 U.S.C. § 1352(b)(5) and 49 C.F.R. Part 19,
Appendix A, Section 7.
Mandatory Clause/Language
Clause and specific language therein are mandated by 49 CFR Part 19, Appendix
A.
Modifications have been made to the Clause pursuant to Section 10 of the
Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et
seq.]
- Lobbying Certification and Disclosure of Lobbying Activities for third party
contractors are mandated by 31 U.S.C. 1352(b)(5), as amended by Section 10
of the Lobbying Disclosure Act of 1995, and DOT implementing regulation,
"New Restrictions on Lobbying," at 49 CFR § 20.110(d)
- Language in Lobbying Certification is mandated by 49 CFR Part 19, Appendix
A, Section 7, which provides that contractors file the certification required by 49
CFR Part 20, Appendix A.
Modifications have been made to the Lobbying Certification pursuant to Section 10
of the Lobbying Disclosure Act of 1995.
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- Use of "Disclosure of Lobbying Activities," Standard Form-LLL set forth in
Appendix B of 49 CFR Part 20, as amended by "Government wide Guidance
For New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96) is mandated
by 49 CFR Part 20, Appendix A.
Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the
Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. §
1601, et seq.] - Contractors who apply or bid for an award of $100,000 or more
shall file the certification required by 49 CFR part 20, "New Restrictions on
Lobbying." Each tier certifies to the tier above that it will not and has not used
Federal appropriated funds to pay any person or organization for influencing or
attempting to influence an officer or employee of any agency, a member of
Congress, officer or employee of Congress, or an employee of a member of
Congress in connection with obtaining any Federal contract, grant or any other
award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any
registrant under the Lobbying Disclosure Act of 1995 who has made lobbying
contacts on its behalf with non-Federal funds with respect to that Federal contract,
grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from
tier to tier up to the recipient.
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.)]
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13. CLEAN WATER REQUIREMENTS
(33 U.S.C. 1251)
Applicability to Contracts
The Clean Water requirements apply to each contract and subcontract which
exceeds $100,000.
Flow Down
The Clean Water requirements flow down to FTA recipients and subrecipients at
every tier.
Model Clause/Language
While no mandatory clause is contained in the Federal Water Pollution Control Act,
as amended, the following language developed by FTA contains all the mandatory
requirements:
Clean Water - (1) The Contractor agrees to comply with all applicable standards,
orders or regulations issued pursuant to the Federal Water Pollution Control Act,
as amended, 33 U.S.C. 1251 et seq. The Contractor agrees to report each
violation to the Purchaser and understands and agrees that the Purchaser will, in
turn, report each violation as required to assure notification to FTA and the
appropriate EPA Regional Office.
(2) The Contractor also agrees to include these requirements in each subcontract
exceeding $100,000 financed in whole or in part with Federal assistance
provided by FTA.
14. SEISMIC SAFETY REQUIREMENTS
(42 U.S.C. 7701 et seq., 49 CFR Part 41)
Applicability to Contracts
The Seismic Safety requirements apply only to contracts for the construction of
new buildings or additions to existing buildings.
Flow Down
The Seismic Safety requirements flow down from FTA recipients and subrecipients
to first tier contractors to assure compliance, with the applicable building standards
for Seismic Safety, including the work performed by all subcontractors.
Model Clauses/Language
The regulations do not provide suggested language for third-party contract
clauses. The following language has been developed by FTA.
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
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compliance with the standards required by the Seismic Safety Regulations and the
certification of compliance issued on the project.
15. PATENT AND RIGHTS IN DATA
(37 CFR Part 401, 49 CFR Parts 18 and 19)
Applicability to Contracts
Patent and rights in data requirements for federally assisted projects ONLY apply
to research projects in which FTA finances the purpose of the grant is to finance
the development of a product or information. These patent and data rights
requirements do not apply to capital projects or operating projects, even though a
small portion of the sales price may cover the cost of product development or
writing the user's manual.
Flow Down
The Patent and Rights in Data requirements apply to all contractors and their
contracts at every tier.
Model Clause/Language
The FTA patent clause is substantially similar to the text of 49 C.F.R. Part 19,
Appendix A, Section 5, but the rights in data clause reflects FTA objectives. For
patent rights, FTA is governed by Federal law and regulation. For data rights, the
text on copyrights is insufficient to meet FTA's purposes for awarding research
grants. This model clause, with larger rights as a standard, is proposed with the
understanding that this standard could be modified to FTA's needs.
CONTRACTS INVOLVING EXPERIMENTAL, DEVELOPMENTAL, OR
RESEARCH WORK.
A. Rights in Data - This following requirements apply to each contract involving
experimental, developmental or research work:
(1) The term "subject data" used in this clause means recorded information,
whether or not copyrighted, that is delivered or specified to be delivered
under the contract. The term includes graphic or pictorial delineation in
media such as drawings or photographs; text in specifications or related
performance or design-type documents; machine forms such as punched
cards, magnetic tape, or computer memory printouts; and information
retained in computer memory. Examples include, but are not limited to:
computer software, engineering drawings and associated lists,
specifications, standards, process sheets, manuals, technical reports,
catalog item identifications, and related information. The term "subject data"
does not include financial reports, cost analyses, and similar information
incidental to contract administration.
(2) The following restrictions apply to all subject data first produced in the
performance of the contract to which this Attachment has been added:
(a) Except for its own internal use, the Purchaser or Contractor may not
publish or reproduce subject data in whole or in part, or in any manner or
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form, nor may the Purchaser or Contractor authorize others to do so,
without the written consent of the Federal Government, until such time
as the Federal Government may have either released or approved the
release of such data to the public; this restriction on publication,
however, does not apply to any contract with an academic institution.
(b) In accordance with 49 C.F.R. § 18.34 and 49 C.F.R. § 19.36, the Federal
Government reserves a royalty-free, non-exclusive and irrevocable
license to reproduce, publish, or otherwise use, and to authorize others
to use, for "Federal Government purposes," any subject data or
copyright described in subsections (2)(b)1 and (2)(b)2 of this clause
below. As used in the previous sentence, "for Federal Government
purposes," means use only for the direct purposes of the Federal
Government. Without the copyright owner's consent, the Federal
Government may not extend its Federal license to any other party.
1. Any subject data developed under that contract, whether or not a
copyright has been obtained; and
2. Any rights of copyright purchased by the Purchaser or Contractor
using Federal assistance in whole or in part provided by FTA.
(c) When FTA awards Federal assistance for experimental, developmental,
or research work, it is FTA's general intention to increase transportation
knowledge available to the public, rather than to restrict the benefits
resulting from the work to participants in that work. Therefore, unless
FTA determines otherwise, the Purchaser and the Contractor performing
experimental, developmental, or research work required by the
underlying contract to which this Attachment is added agrees to permit
FTA to make available to the public, either FTA's license in the copyright
to any subject data developed in the course of that contract, or a copy of
the subject data first produced under the contract for which a copyright
has not been obtained. If the experimental, developmental, or research
work, which is the subject of the underlying contract, is not completed for
any reason whatsoever, all data developed under that contract shall
become subject data as defined in subsection (a) of this clause and shall
be delivered as the Federal Government may direct. This subsection (c)
, however, does not apply to adaptations of automatic data processing
equipment or programs for the Purchaser or Contractor's use whose
costs are financed in whole or in part with Federal assistance provided
by FTA for transportation capital projects.
(d) Unless prohibited by state law, upon request by the Federal
Government, the Purchaser and the Contractor agree to indemnify,
save, and hold harmless the Federal Government, its officers, agents,
and employees acting within the scope of their official duties against any
liability, including costs and expenses, resulting from any willful or
intentional violation by the Purchaser or Contractor of proprietary rights,
copyrights, or right of privacy, arising out of the publication, translation,
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reproduction, delivery, use, or disposition of any data furnished under
that contract. Neither the Purchaser nor the Contractor shall be required
to indemnify the Federal Government for any such liability arising out of
the wrongful act of any employee, official, or agents of the Federal
Government.
(e) Nothing contained in this clause on rights in data shall imply a license to
the Federal Government under any patent or be construed as affecting
the scope of any license or other right otherwise granted to the Federal
Government under any patent.
(f) Data developed by the Purchaser or Contractor and financed entirely
without using Federal assistance provided by the Federal Government
that has been incorporated into work required by the underlying contract
to which this Attachment has been added is exempt from the
requirements of subsections (b), (c), and (d) of this clause, provided that
the Purchaser or Contractor identifies that data in writing at the time of
delivery of the contract work.
(g) Unless FTA determines otherwise, the Contractor agrees to include
these requirements in each subcontract for experimental,
developmental, or research work financed in whole or in part with
Federal assistance provided by FTA.
(3) Unless the Federal Government later makes a contrary determination in
writing, irrespective of the Contractor's status (i.e., a large business, small
business, state government or state instrumentality, local government,
nonprofit organization, institution of higher education, individual, etc.), the
Purchaser and the Contractor agree to take the necessary actions to
provide, through FTA, those rights in that invention due the Federal
Government as described in
U.S. Department of Commerce regulations, "Rights to Inventions Made by
Nonprofit Organizations and Small Business Firms Under Government
Grants, Contracts and Cooperative Agreements," 37 C.F.R. Part 401.
(4) The Contractor also agrees to include these requirements in each
subcontract for experimental, developmental, or research work financed in
whole or in part with Federal assistance provided by FTA.
B. Patent Rights - The following requirements apply to each contract involving
experimental, developmental, or research work:
(1) General - If any invention, improvement, or discovery is conceived or first
actually reduced to practice in the course of or under the contract to which
this Attachment has been added, and that invention, improvement, or
discovery is patentable under the laws of the United States of America or
any foreign country, the Purchaser and Contractor agree to take actions
necessary to provide immediate notice and a detailed report to the party at a
higher tier until FTA is ultimately notified.
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(2) Unless the Federal Government later makes a contrary determination in
writing, irrespective of the Contractor's status (a large business, small
business, state government or state instrumentality, local government,
nonprofit organization, institution of higher education, individual), the
Purchaser and the Contractor agree to take the necessary actions to
provide, through FTA, those rights in that invention due the Federal
Government as described in U.S. Department of Commerce regulations,
"Rights to Inventions Made by Nonprofit Organizations and Small Business
Firms Under Government Grants, Contracts and Cooperative Agreements,"
37 C.F.R. Part 401.
(3) The Contractor also agrees to include the requirements of this clause in
each subcontract for experimental, developmental, or research work
financed in whole or in part with Federal assistance provided by FTA.
16. 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
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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 addition, the Contractor agrees
to comply with any implementing requirements FTA may issue.
(d) Special DOL EEO Clause - In addition to the foregoing, when undertaking
“construction” as recognized by the U.S. Department of Labor (U.S. DOL),
the Recipient agrees to comply, and assures that each Third Party
Participant will comply, with: (a) U.S. DOL regulations, “Office of Federal
Contract Compliance Programs, Equal Employment Opportunity,
Department of Labor,” 41 C.F.R. chapter 60, and (b) Executive Order
11246, “Equal Employment Opportunity,” as amended by Executive Order
11375, “Amending Executive Order 11246, Relating to Equal Employment
Opportunity,” 42 U.S.C. § 2000e note.
(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.
17. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
(49 CFR Part 26)
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Background and Applicability
The newest version on the Department of Transportation’s Disadvantaged
Business Enterprise (DBE) program became effective July 16, 2003. The rule
provides guidance to grantees on the use of overall and contract goals,
requirement to include DBE provisions in subcontracts, evaluating DBE
participation where specific contract goals have been set, reporting requirements,
and replacement of DBE subcontractors. Additionally, the DBE program dictates
payment terms and conditions (including limitations on retainage) applicable to all
subcontractors regardless of whether they are DBE firms or not.
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
N/A 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:
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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)).
{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.
18. ADA ACCESS
Accessibility. Facilities to be used in public transportation service must comply with
42 U.S.C. Sections 12101 et seq. and DOT regulations, “Transportation Services
for Individuals with Disabilities (ADA),” 49 CFR Part 37; and Joint ATBCB/DOT
regulations, “Americans with Disabilities (ADA) Accessibility Specifications for
Transportation Vehicles,” 36 CFR Part 1192 and 49 CFR Part 38. Notably, DOT
incorporated by reference the ATBCB’s “Americans with Disabilities Act
Accessibility Guidelines” (ADAAG), revised July 2004, which include accessibility
guidelines for buildings and facilities, and are incorporated into Appendix A to 49
CFR Part 37. DOT also added specific provisions to Appendix A modifying the
ADAAG, with the result that buildings and facilities must comply with both the
ADAAG and amendments thereto in Appendix A to 49 CFR Part 37.
19. CITY OF FORT COLLINS BID PROTEST PROCEDURES
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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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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)
4. 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.
5. 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.)
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