HomeMy WebLinkAboutRFP - 8405 TRANSFORT SNOW & ICE REMOVALRFP 8405 Transfort Snow & Ice Removal Page 1 of 63
REQUEST FOR PROPOSAL
8405 TRANSFORT SNOW & ICE REMOVAL
The City of Fort Collins is requesting proposals from qualified firms for a snow removal
contractor to proactively and reactively remove snow and ice from Transfort facilities and
locations. This is a one year agreement with the option to renew for up to four more one-year
periods. This is subject to appropriation of funds year-to-year.
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), November 15, 2016 and referenced as Proposal No.
8405. 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 November 2, 2016 at 2:00 PM at the Transfort
Maintenance Facility, 6570 Portner Rd, Fort Collins, CO. Attendance is highly
recommended.
Questions concerning the scope of the bid should be directed to Kaley Zeisel, Project Manager,
at (970) 224-6067 or kzeisel@fcgov.com.
Questions regarding bid submittal or process should be directed to Elliot Dale, Buyer, at
(970) 221-6777 or edale@fccgov.com.
All questions must be submitted in writing via email to Kaley Zeisel, with a copy to Elliot
Dale, no later than 5:00 PM our clock on November 7, 2016. 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
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.
Financial Services
Purchasing Division
215 N. Mason St. 2nd Floor
PO Box 580
Fort Collins, CO 80522
970.221.6775
970.221.6707
fcgov.com/purchasing
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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
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FOR PROPOSAL
8405 TRANSFORT SNOW & ICE REMOVAL REQUEST
BACKGROUND
The City of Fort Collins is requesting proposals from qualified firms for a snow removal
contractor to proactively and reactively remove snow and ice from Transfort facilities and
locations.
SCOPE OF WORK
1. The work consists of furnishing any equipment and labor deemed necessary, on
call by the Contractor, to proactively (prior to snowfall event) and reactively (after
snowfall event) remove snow and ice hazards from Transfort properties located at
6570 Portner Road, 4915 Fossil Boulevard, all MAX BRT Station Platforms,
designated areas and parking lots, the east and west ramps and overpass at the
Spring Creek Station, 250 N Mason or the Downtown Transit Center, Civic Center
Parking Structure (CCPS) stairwells, Old Town Parking Structure (OTPS) stairwells
and the bridge from CCPS to Opera Galleria. Detailed maps of the required snow
removal areas for each location aside from CCPS and OTPS can be found in
Attachment 1. As conditions and needs change throughout the snow removal
seasons, updates to these maps can be found
at: https://www.google.com/maps/d/u/0/viewer?mid=z6sYnvckZHhc.k0U5_valNoEY.
The Contractor is responsible for removing snow and ice on the stairwells and single
landing of CCPS. CCPS has three sets of stairs up to the fourth level. One set of stairs
is at the northwest end of the structure, the second set of stairs is at the southeast end
of the structure and the third set of stairs is at the southwest end of the structure. The
fifth level of CCPS has one set of outside stairs and a landing. The contractor is also
responsible for clearing the bridge that spans from CCPS to Opera Galleria.
The Contractor is responsible for removing snow and ice on the stairwells of OTPS.
OTPS has a set of stairs and the northwest end of the structure. The second set of
stairs is located in the middle of the structure.
Clearing of snow shall occur 24 hours per day, 7 days per week where snow has/is
falling that there is at least minimal or trace accumulation on the specified areas to
be cleared. The Contractor is responsible for monitoring snow progress, proactively
placing magnesium chloride, deicer, or equivalent and initiating snow removal.
Section titled “Recommendations and Priorities” describes the location, crew size
recommended, equipment needed and the deadline by which snow must be
removed, as well as a priority ranking in the event that the timing of the snowfall
event makes the deadline unreasonable. The “Recommendations and Priorities”
chart should be used for reactive snow removal and does not include equipment or
manpower recommendations for proactive magnesium chloride placement.
2. The Contractor will be required to schedule meetings with Transfort representative(s)
before the first snowfall to determine where snow will be placed when plowed. The
Contractor is required to meet with the Transfort representative as requested
throughout the contract period to discuss changes, issues and/or status updates.
3. The Contractor must haul large amounts of snow buildup from any site to various
dump sites located around the City, as directed by the City Representative.
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4. The Contractor shall provide itemized invoices including: major locations serviced
(Transfort Maintenance Facility, South Transit Center, MAX Guideway, Downtown
Transit Center and Parking Structures), time taken to clear snow at each major location,
equipment used at each major location, and crew size at each major location. At the
Transfort representative’s request, the Contractor is required to provide proof of the
amount invoiced. This can be done through documented photographs, video, tracking
software, timesheets or any other means which accurately justifies the invoiced amount.
The Contractor shall invoice snow removal for OTPS and CCPS separate from the rest
of the snow removal locations.
5. Transfort shall provide access to the gated Transfort Maintenance Facility at 6570
Portner Road, by issuing three fobs to the Contractor. The Contractor is responsible for
the fobs and will not distribute fobs to any person or enter the facility grounds using the
fob for any reason other than the explicit use outlined in this contract. The cost for
replacement of a lost fob is $10.00.
6. In the event that the Contractor fails to clear snow by the removal deadline or the snow is
not sufficiently removed, Transfort reserves the right to either remove the snow
themselves or hire an external vendor to remove the snow. Transfort may bill the
Contractor for the cost of the vendor snow removal plus a 10% administrative fee. In the
event that Transfort staff removes the snow, a charge of $30 per hour per Transfort
employee responsible for snow removal will be charged to the Contractor.
7. The City reserves the right to adjust the scope of the contract to either increase or
decrease service based on the selected firm’s capacity and ability to complete the work.
8. All truck drivers must have a valid CDL and all operators must be qualified to
operate the equipment. Any person (Contractor) who operates a commercial
motor vehicle, as defined in §382.107, in intrastate or interstate commerce and is
subject to the commercial driver's license requirement of 49 CFR part 383 must
be included in an alcohol and controlled substances testing program under the
Federal Highway Administration's rule. Documentation of proof must be
submitted with the proposal prior to performing work for the City of Fort
Collins.
9. All equipment must comply with all DOT, CDL, and any other local/State/Federal
requirements. Trucks must be equipped with an effective load covering tarp if
required by City Representative.
10. All work shall be done in a professional, SAFE, courteous and efficient manner. The
driver or operator shall exercise the utmost courtesy to other drivers and
pedestrians. The City reserves the right to terminate contract with a vendor for not
performing in a professional, SAFE, courteous and efficient manner.
11. The City shall not be responsible for any equipment failures, damage to equipment,
or maintenance required on the equipment. The vendor is responsible for all fuel
required. Failed equipment is not an acceptable reason for failing to adhere to the
scope of work outlined in the contract. The Contractor shall ensure that they have
enough extra equipment to cover the scope of work in the event of an equipment
failure.
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12. Any damage caused by the vendor's equipment or driver shall be the sole
responsibility of the vendor. The vendor shall indemnify and hold harmless the City
for any damage done by the vendor's equipment or driver to any member of the
public, private property, and any part of the right-of-way. If City-owned equipment or
City employees directly cause any damage, the City will assume responsibility for the
damage.
13. At no time whatsoever shall the driver be considered or become a City employee.
14. The City makes no guarantee to the number of work hours requested.
15. Itemized invoices must be submitted to the City representative within 30 days after
the work is performed.
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RECOMMENDATIONS AND PRIORITIES
This chart describes the locations, recommended crew size, recommended equipment
needed, snow removal deadlines and a priority ranking in the event that the start of the
snowfall makes the recommended deadline unreasonable. The priority ranking is 1-3, 1
being the highest priority.
Location Crew Size
Recommended
Equipment
Recommended
Snow Removal
Deadline
Priority
Ranking
Transfort Maintenance Facility
Parking lot, drive isles to
exit gate 2-4 employees
2-4 trucks with
plows 4:00 AM 1
Tarmac 2-4 employees
2-4 trucks with
plows 7:00 AM 3
Sidewalks, ramp and
stairs adjacent to
building 2-3 employees Hand shovel 4:00 AM 1
Exterior sidewalk around
perimeter outside of 1 employee
Skid steer or
equivalent 7:00 AM 3
South Transit Center
Parking lot 1 employee 1 truck with plow 5:00 AM 2
Sidewalks 1 employee
Skid steer or
equivalent 5:00 AM 2
Large middle platform 4 employees Hand shovel 5:00 AM 2
MAX Guideway, approaches & additional lots
MAX approaches
(sidewalks) 2 employees
Skid steer or
equivalent 7:00 AM 2
MAX platforms 6-8 employees Hand shovel 7:00 AM 2
Troutman cul de sac 1 employee Truck with plow 6:00 AM 2
Spring Creek Station
overpass and ramps 2-4 employees Hand shovel 7:30 AM 2
Foothills Assembly of
God parking lot 1 employee Truck with plow 7:00 AM 3
Downtown Transit Center
Sidewalk and platforms 2 employees
Skid Steer or
equivalent with a
broom and hand
shovel 5:00 AM 2
Bus bays 1 employee Truck with plow 5:00 AM 2
Parking Structures
CCPS Stairwell and
Opera Galleria Bridge 1 employee Hand shovel 7:00 AM 3
OTPS Stairwell 1 employee Hand shovel 7:00 AM 3
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CONTRACT PERIOD AND RENEWALS
This agreement is effective for a one year period. At the sole option of the City, the
agreement may be extended for additional one year periods not to exceed four (4)
additional one year periods. Renewals and pricing changes shall be negotiated by and
agreed to by both parties. Contract renewals will be conducted in the summer following the
snow removal season. Written notice of renewal shall be provided to the Service Provider and
mailed no later than thirty (30) days prior to contract end. This Contract is subject to
appropriation of funds year-to-year.
SUBMITTAL REQUIREMENTS
The City of Fort Collins shall not reimburse any firm for costs incurred in the preparation and
presentation of their proposal. Proposals shall be submitted to the City of Fort Collins as
indicated on the Request for Proposal cover letter page. At minimum, the proposal must include
the following information and answer the following questions:
1. Company history and experience providing snow & ice removal services. Contractor shall
provide documentation of at least three (3) years’ prior experience providing services of
similar scope and scale.
2. Documentation of valid CDL for all truck drivers and operators used for these services.
3. References from three or more organizations which have used your company for similar
services within the past five years. References shall include:
a. Project name
b. Project contact person including name, title, phone number, email address
c. Annual project budget
4. Your company’s capacity and ability to perform the scope of work outlined in Scope of Work.
Should your firm be awarded this contract, how many pick-ups with plows do you have that
would be available for each snow storm?
5. Describe how your company prioritizes other contracts or commitments that that currently
exist. How will Transfort’s snow & ice removal contract be prioritized?
6. Based on the recommended crew sizes outlined in section RECOMMENDATIONS AND
PRIORITIES, should your firm be awarded this contract, describe how many crew members
would be deployed each snow storm, where the crew members would be deployed, and
what type of equipment they would use.
7. Describe and list the amount and other types of equipment that your firm would have
available for snow removal under this contract (tandem dump, when loader, skid steer,
tractor, etc.).
8. Please describe the proactive snow and ice removal process that would be used should
your firm be awarded this contract.
9. Describe how your firm will monitor snowfall progress at the various locations to ensure
deadlines are being met and snow accumulation is minimized.
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10. Complete the attached Cost Schedule
11. Complete the Certification Regarding Lobbying
The proposal must be signed by a duly authorized representative of the firm submitting the
proposal. The signature shall include the title of the individual signing the proposal. Proposals
shall not exceed 15 double-sided pages (30 single sided), excluding cover pages, dividers, Cost
Schedule and Certification Regarding Lobbying.
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REVIEW AND ASSESSMENT
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?
1.0 Availability
Can the work be completed in the necessary
timeframe? Can the target start and completion times
be met? Are other qualified personnel available to
assist in meeting the project schedule if required? Is
the project team available to attend meetings as
required by the Scope of Work?
1.0 Sustainability/TBL
Methodology
Does the firm demonstrate a commitment to
Sustainability and incorporate Triple Bottom Line
methodology in both their Scope of Work for the project,
and their day-to-day business operating processes and
procedures?
4.0
Cost and
Work Hours
Does the proposal included detailed cost break-down
for each cost element as applicable and are the line-
item costs competitive? Do the proposed cost and work
hours compare favorably with the Project Manager's
estimate? Are the work hours presented reasonable for
the effort required by each project task or phase?
2.0 Firm Capability
Does the firm have the resources, financial strength,
capacity and support capabilities required to
successfully complete the work on-time and in-budget?
Does the firm have the appropriate crew size and
equipment available to complete the work?
Definitions
Sustainable Purchasing is a process for selecting products or services that have a lesser or
reduced negative effect on human health and the environment when compared with competing
products or services that serve the same purpose. This process is also known as
“Environmentally Preferable Purchasing” (EPP), or “Green Purchasing”.
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The Triple Bottom Line (TBL) is an accounting framework that incorporates three dimensions of
performance: economic, or financial; environmental, and social. The generally accepted
definition for TBL is that it “captures the essence of sustainability by measuring the impact of an
organization’s activities on the world…including both its profitability and shareholders values
and its social, human, and environmental capital.”
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 firm 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 firm responsive to client needs; did the firm
anticipate problems? Were problems solved quickly and
effectively?
Budget Was the original Scope of Work completed within the
project budget?
Job Knowledge
If a study, did it meet the Scope of Work?
If the firm administered a construction contract, was the
project functional upon completion and did it operate
properly? Were problems corrected quickly and
effectively?
SELECTION PROCESS SCHEDULE (ANTICIPATED)
• Pre-proposal Meeting November 2, 2016, 2:00 PM
• Questions deadline November 7, 2016 (5:00 PM, our clock)
• RFP Submittals Due November 15, 2016 (3:00 PM, our clock)
• Conduct Interviews and Selection Week of November 28, 2016
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COST SCHEDULE
Complete the following Cost Schedule and submit with the proposal. Snow removal for this
contract will be completed by the hour. Please provide pricing for the following equipment.
All equipment includes operator:
Service Rate Per Hour
Pickup with Plow…………………….. $______________________________/hr
Hand Shoveling ……………………... $______________________________/hr
Total hourly rate for pickup with plow
and hand shoveling…………………. $______________________________/hr
Tandem Dump……………………….. $______________________________/hr
Wheel Loader………………………… $______________________________/hr
Skid Steer…………………………….. $______________________________/hr
Small Tractor…………………………. $______________________________/hr
Large Tractor………………………… $______________________________/hr
Other (describe)……………………… $______________________________/hr
$______________________________/hr
$______________________________/hr
De-icer (or equivalent), per lb………. $______________________________/lb
Mag-chloride, per lb…………………. $______________________________/lb
Other De-icers (describe)…………… $______________________________/lb
Proposer’s Statement:
I have read and fully understand all the specifications, and requirements set forth herein. I
hereby agree to comply with all said specifications and requirements, as stated or implied.
By:
Printed:
Company:
Address:
City, State, Zip:
Phone:
Email:
Federal funds will be used for this project. In addition to the City of Fort Collins Standard
Terms and Conditions, the Federal Requirements listed will apply to this contract.
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ATTACHMENTS
Attachment 1: Maps of Snow Removal Locations
Attachment 2: Certification Regarding Lobbying
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ATTACHMENT 1 MAPS OF SNOW REMOVAL LOCATIONS
Transfort Maintenance Facility (Contractor responsibility outlined in purple)
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South Transit Center (Contractor responsibility outlined in blue)
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Harmony Station (Contractor responsibility outlined in blue)
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Troutman Station (Contractor responsibility outlined in blue)
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Horsetooth Station (Contractor responsibility outlined in blue)
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Swallow Station (Contractor responsibility outlined in blue)
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Drake Station (Contractor responsibility outlined in blue)
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Spring Creek Station & Overpass (Contractor responsibility outlined in blue)
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Prospect Station (Contractor responsibility outlined in red)
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University Station (Contractor responsibility outlined in red)
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Laurel Stations (Contractor responsibility outlined in red)
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Mulberry Stations (Contractor responsibility outlined in red)
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Olive Stations (Contractor responsibility outlined in red)
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Mountain Stations (Contractor responsibility outlined in red)
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Downtown Transit Center (Contractor responsibility outlined in purple)
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Foothills Assembly of God Parking Lot (Contractor responsibility outlined in red)
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ATTACHMENT 2
CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements
(To be submitted with each bid or offer exceeding $100,000)
The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or employee
of an agency, a Member of Congress, an officer or employee of Congress, or an employee
of a Member of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal, amendment, or
modification of any Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any
person for making lobbying contacts to an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of Congress in
connection with this Federal contract, grant, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form--LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions [as amended by "Government wide Guidance
for New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96). Note: Language in
paragraph (2) herein has been modified in accordance with Section 10 of the Lobbying
Disclosure Act of 1995 (P.L. 104-65, to be codified at 2 U.S.C. 1601, et seq.)]
(3) The undersigned shall require that the language of this certification be included in the award
documents for all subawards at all tiers (including subcontracts, subgrants, and contracts
under grants, loans, and cooperative agreements) and that all subrecipients shall certify and
disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for
making or entering into this transaction imposed by 31, U.S.C. § 1352 (as amended by the
Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such
failure.
[Note: Pursuant to 31 U.S.C. § 1352(c)(1)-(2)(A), any person who makes a prohibited
expenditure or fails to file or amend a required certification or disclosure form shall be subject to
a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure
or failure.]
The Contractor, , certifies or affirms the truthfulness
and accuracy of each statement of its certification and disclosure, if any. In addition, the
Contractor understands and agrees that the provisions of 31 U.S.C. A 3801, et seq., apply to
this certification and disclosure, if any.
__________________________ Signature of Contractor's Authorized Official
__________________________ Name and Title of Contractor's Authorized Official
___________________________ Date
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SERVICES AGREEMENT
THIS AGREEMENT made and entered into the day and year set forth below by and
between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter
referred to as the "City" and , hereinafter referred to as "Service Provider".
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 Service Provider agrees to provide services in accordance with
the scope of services attached hereto as Exhibit "A", consisting of ( )
page and incorporated herein by this reference. Irrespective of references in Exhibit
A to certain named third parties, Service Provider shall be solely responsible for
performance of all duties hereunder.
2. The Work Schedule. [Optional] The services to be performed pursuant to this Agreement
shall be performed in accordance with the Work Schedule attached hereto as Exhibit "B",
consisting of ( ) page , and incorporated herein by this reference.
3. Time of Commencement and Completion of Services. The services to be performed
pursuant to this Agreement shall be initiated within ( ) days following
execution of this Agreement. Services shall be completed no later than . Time is of
the essence. Any extensions of the time limit set forth above must be agreed upon in a
writing signed by the parties.
4. Contract Period. This Agreement shall commence , 200 , and shall continue in
full force and effect until , 200 , 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 Service Provider and mailed no later than thirty (30) days
prior to contract end.
5. Delay. If either party is prevented in whole or in part from performing its obligations by
unforeseeable causes beyond its reasonable control and without its fault or negligence,
then the party so prevented shall be excused from whatever performance is prevented by
such cause. To the extent that the performance is actually prevented, the Service
Provider must provide written notice to the City of such condition within fifteen (15) days
from the onset of such condition.
6. 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 Service Provider. Such notice shall be delivered at least fifteen (15)
days prior to the termination date contained in said notice unless otherwise agreed in
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writing by the parties. All notices provided under this Agreement shall be effective when
mailed, postage prepaid and sent to the following addresses:
Service Provider: City: Copy to:
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 early termination by the City, the Service Provider shall be paid for services
rendered to the date of termination, subject only to the satisfactory performance of the
Service Provider's obligations under this Agreement. Such payment shall be the Service
Provider's sole right and remedy for such termination.
7. Contract Sum. The City shall pay the Service Provider for the performance of this
Contract, subject to additions and deletions provided herein, ($ ) as per the
attached Exhibit " ", consisting of page , and incorporated herein by this
reference.
8. City Representative. The City will designate, prior to commencement of the work, its
representative who shall make, within the scope of his or her authority, all necessary and
proper decisions with reference to the services provided under this agreement. All
requests concerning this agreement shall be directed to the City Representative.
9. Independent Service provider. The services to be performed by Service Provider are
those of an independent service provider and not of an employee of the City of Fort
Collins. The City shall not be responsible for withholding any portion of Service Provider's
compensation hereunder for the payment of FICA, Workmen's Compensation or other
taxes or benefits or for any other purpose.
10. Subcontractors. Service Provider 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 Service Provider.
11. Personal Services. It is understood that the City enters into the Agreement based on the
special abilities of the Service Provider and that this Agreement shall be considered as an
agreement for personal services. Accordingly, the Service Provider shall neither assign
any responsibilities nor delegate any duties arising under the Agreement without the prior
RFP 8405 Transfort Snow & Ice Removal Page 36 of 63
written consent of the City.
12. Acceptance Not Waiver. 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 or cause of action arising out of performance of this
Agreement.
13. Warranty.
a. Service Provider warrants that all work performed hereunder shall be performed with
the highest degree of competence and care in accordance with accepted standards for
work of a similar nature.
b. Unless otherwise provided in the Agreement, all materials and equipment incorporated
into any work shall be new and, where not specified, of the most suitable grade of their
respective kinds for their intended use, and all workmanship shall be acceptable to
City.
c. Service Provider warrants all equipment, materials, labor and other work, provided
under this Agreement, except City-furnished materials, equipment and labor, against
defects and nonconformances in design, materials and workmanship/workwomanship
for a period beginning with the start of the work and ending twelve (12) months from
and after final acceptance under the Agreement, regardless whether the same were
furnished or performed by Service Provider or by any of its subcontractors of any tier.
Upon receipt of written notice from City of any such defect or nonconformances, the
affected item or part thereof shall be redesigned, repaired or replaced by Service
Provider in a manner and at a time acceptable to City.
14. 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 thereof.
15. 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.
16. 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.
17. Indemnity/Insurance.
RFP 8405 Transfort Snow & Ice Removal Page 37 of 63
a. The Service Provider agrees to indemnify and save harmless the City, its officers,
agents and employees against and from any and all actions, suits, claims, demands or
liability of any character whatsoever brought or asserted for injuries to or death of any
person or persons, or damages to property arising out of, result from or occurring in
connection with the performance of any service hereunder.
b. The Service Provider shall take all necessary precautions in performing the work
hereunder to prevent injury to persons and property.
c. Without limiting any of the Service Provider's obligations hereunder, the Service
Provider shall provide and maintain insurance coverage naming the City as an
additional insured under this Agreement of the type and with the limits specified within
Exhibit , consisting of one (1) page, attached hereto and incorporated herein by
this reference. The Service Provider before commencing services hereunder, shall
deliver to the City's Purchasing Director, P. O. Box 580, Fort Collins, Colorado 80522,
one copy of a certificate evidencing the insurance coverage required from an
insurance company acceptable to the City.
18. Entire Agreement. This Agreement, along with all Exhibits and other documents
incorporated herein, shall constitute the entire Agreement of the parties. Covenants or
representations not contained in this Agreement shall not be binding on the 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., Service Provider represents and agrees that:
a. As of the date of this Agreement:
1. Service Provider does not knowingly employ or contract with an illegal alien who
will perform work under this Agreement; and
2. Service Provider 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. Service Provider 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.
RFP 8405 Transfort Snow & Ice Removal Page 38 of 63
c. Service Provider 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 Service Provider obtains actual knowledge that a subcontractor performing work
under this Agreement knowingly employs or contracts with an illegal alien, Service
Provider shall:
1. Notify such subcontractor and the City within three days that Service Provider 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 Service Provider 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. Service Provider 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 Service Provider 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, Service Provider shall be liable for actual and
consequential damages to the City arising out of Service Provider’s violation of
Subsection 8-17.5-102, C.R.S.
g. The City will notify the Office of the Secretary of State if Service Provider 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 " " - Confidentiality,
consisting of one (1) page, attached hereto and incorporated herein by this reference.
RFP 8405 Transfort Snow & Ice Removal Page 39 of 63
THE CITY OF FORT COLLINS, COLORADO
By:
Gerry Paul
Purchasing Director
DATE:
ATTEST:
APPROVED AS TO FORM:
SERVICE PROVIDER'S NAME
By:
Printed:
Title:
CORPORATE PRESIDENT OR VICE PRESIDENT
Date:
RFP 8405 Transfort Snow & Ice Removal Page 40 of 63
EXHIBIT
INSURANCE REQUIREMENTS
1. The Service Provider 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 Service Provider 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 Service Provider, 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 Service Provider under this
Agreement. The City, its officers, agents and employees shall be named as additional
insureds on the Service Provider '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 Service Provider shall
maintain during the life of this Agreement for all of the Service Provider'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 Service Provider 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 Service Provider 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.
RFP 8405 Transfort Snow & Ice Removal Page 41 of 63
EXHIBIT
CONFIDENTIALITY
IN CONNECTION WITH SERVICES provided to the City of Fort Collins (the “City”) pursuant to
this Agreement (the “Agreement”), the Service Provider 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 Service Provider has agreed to perform, the Service Provider
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 Service
Provider 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 Service Provider shall not disclose any such information to any
person not having a legitimate need-to-know for purposes authorized by the City. Further, the
Service Provider 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 Service Provider 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 Service Provider 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 Service Provider ceases to perform services for the City, or the City so
requests for any reason, the Service Provider 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 Service Provider understands and agrees that the City’s remedies at law for a breach of the
Service Provider’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 8405 Transfort Snow & Ice Removal Page 42 of 63
FEDERAL TRANSIT ADMINISTRATION
FEDERALLY REQUIRED AND OTHER MODEL CONTRACT CLAUSES
NO GOVERNMENT OBLIGATION TO THIRD PARTIES
Applicability to Contracts
Applicable to all contracts.
Flow Down
Not required by statute or regulation for either primary contractors or subcontractors, this
concept should flow down to all levels to clarify, to all parties to the contract, that the
Federal Government does not have contractual liability to third parties, absent specific
written consent.
Model Clause/Language
While no specific language is required, FTA has developed the following language.
No Obligation by the Federal Government.
(1) The Purchaser and Contractor acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of
the underlying contract, absent the express written consent by the Federal
Government, the Federal Government is not a party to this contract and shall not be
subject to any obligations or liabilities to the Purchaser, Contractor, or any other party
(whether or not a party to that contract) pertaining to any matter resulting from the
underlying contract.
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED
ACTS
(31 U.S.C. 3801 et seq. 49 CFR Part 31 18 U.S.C. 1001 49 U.S.C. 5307)
Applicability to Contracts
These requirements are applicable to all contracts.
Flow Down
These requirements flow down to contractors and subcontractors who make, present, or
submit covered claims and statements.
Model Clause/Language
These requirements have no specified language, so FTA proffers the following language.
Program Fraud and False or Fraudulent Statements or Related Acts.
(1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies
Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations,
"Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to
this Project. Upon execution of the underlying contract, the Contractor certifies or
affirms the truthfulness and accuracy of any statement it has made, it makes, it may
make, or causes to be made, pertaining to the underlying contract or the FTA assisted
project for which this contract work is being performed. In addition to other penalties
that may be applicable, the Contractor further acknowledges that if it makes, or causes
to be made, a false, fictitious, or fraudulent claim, statement, submission, or
certification, the Federal Government reserves the right to impose the penalties of the
Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal
RFP 8405 Transfort Snow & Ice Removal Page 43 of 63
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.
ACCESS TO RECORDS AND REPORTS
(49 U.S.C. 5325, 18 CFR 18.36 (i), 49 CFR 633.17)
Applicability to Contracts
Reference Chart "Requirements for Access to Records and Reports by Type of Contracts"
Flow Down
FTA does not require the inclusion of these requirements in subcontracts.
Model Clause/Language
The specified language is not mandated by the statutes or regulations referenced, but the
language provided paraphrases the statutory or regulatory language.
Access to Records - The following access to records requirements apply to this Contract:
1. Where the Purchaser is not a State but a local government and is the FTA Recipient or
a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 18.36(i), the
Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller
General of the United States or any of their authorized representatives access to any
books, documents, papers and records of the Contractor which are directly pertinent to
this contract for the purposes of making audits, examinations, excerpts and
transcriptions. Contractor also agrees, pursuant to 49 C.F.R. 633.17 to provide the
FTA Administrator or his authorized representatives including any PMO Contractor
access to Contractor's records and construction sites pertaining to a major capital
project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance
through the programs described at 49 U.S.C. 5307, 5309 or 5311.
2. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA
Recipient in accordance with 49 C.F.R. 633.17, Contractor agrees to provide the
Purchaser, the FTA Administrator or his authorized representatives, including any
PMO Contractor, access to the Contractor's records and construction sites pertaining
to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal
financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311.
By definition, a major capital project excludes contracts of less than the simplified
acquisition threshold currently set at $100,000.
3. Where the Purchaser enters into a negotiated contract for other than a small purchase
or under the simplified acquisition threshold and is an institution of higher education, a
RFP 8405 Transfort Snow & Ice Removal Page 44 of 63
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
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
RFP 8405 Transfort Snow & Ice Removal Page 45 of 63
2 49 CFR 633.17
3 18 CFR 18.36 (i)
FEDERAL CHANGES
(49 CFR Part 18)
Applicability to Contracts
The Federal Changes requirement applies to all contracts.
Flow Down
The Federal Changes requirement flows down appropriately to each applicable changed
requirement.
Model Clause/Language
No specific language is mandated. The following language has been developed by FTA.
Federal Changes - Contractor shall at all times comply with all applicable FTA
regulations, policies, procedures and directives, including without limitation those listed
directly or by reference in the Master Agreement between Purchaser and FTA, as they
may be amended or promulgated from time to time during the term of this contract.
Contractor's failure to so comply shall constitute a material breach of this contract.
CIVIL RIGHTS REQUIREMENTS
(29 U.S.C. § 623, 42 U.S.C. § 2000 42 U.S.C. § 6102, 42 U.S.C. § 12112 42 U.S.C. §
12132, 49 U.S.C. § 5332 29 CFR Part 1630, 41 CFR Parts 60 et seq.)
Applicability to Contracts
The Civil Rights Requirements apply to all contracts.
Flow Down
The Civil Rights requirements flow down to all third party contractors and their contracts at
every tier.
Model Clause/Language
The following clause was predicated on language contained at 49 CFR Part 19, Appendix
A, but FTA has shortened the lengthy text.
Civil Rights - The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42
U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42
U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. §
12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will
not discriminate against any employee or applicant for employment because of race,
color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees
to comply with applicable Federal implementing regulations and other implementing
requirements FTA may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity
requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil
Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C.
§ 5332, the Contractor agrees to comply with all applicable equal employment
opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations,
"Office of Federal Contract Compliance Programs, Equal Employment Opportunity,
RFP 8405 Transfort Snow & Ice Removal Page 46 of 63
Department of Labor," 41 C.F.R. Parts 60 et seq., (which implement Executive
Order No. 11246, "Equal Employment Opportunity," as amended by Executive
Order No. 11375, "Amending Executive Order 11246 Relating to Equal
Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable
Federal statutes, executive orders, regulations, and Federal policies that may in
the future affect construction activities undertaken in the course of the Project. The
Contractor agrees to take affirmative action to ensure that applicants are
employed, and that employees are treated during employment, without regard to
their race, color, creed, national origin, sex, or age. Such action shall include, but
not be limited to, the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising, layoff or termination; rates of pay or other
forms of compensation; and selection for training, including apprenticeship. In
addition, the Contractor agrees to comply with any implementing requirements FTA
may issue.
(b) Age - In accordance with section 4 of the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 5332,
the Contractor agrees to refrain from discrimination against present and
prospective employees for reason of age. In addition, the Contractor agrees to
comply with any implementing requirements FTA may issue.
(c) Disabilities - In accordance with section 102 of the Americans with Disabilities Act,
as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the
requirements of U.S. Equal Employment Opportunity Commission, "Regulations to
Implement the Equal Employment Provisions of the Americans with Disabilities
Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In
addition, the Contractor agrees to comply with any implementing requirements FTA
may issue.
(3) The Contractor also agrees to include these requirements in each subcontract financed
in whole or in part with Federal assistance provided by FTA, modified only if necessary
to identify the affected parties.
INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS
(FTA Circular 4220.1E)
Applicability to Contracts
The incorporation of FTA terms applies to all contracts.
Flow Down
The incorporation of FTA terms has unlimited flow down.
Model Clause/Language
FTA has developed the following incorporation of terms language:
Incorporation of Federal Transit Administration (FTA) Terms - The preceding
provisions include, in part, certain Standard Terms and Conditions required by DOT,
whether or not expressly set forth in the preceding contract provisions. All contractual
provisions required by DOT, as set forth in FTA Circular 4220.1E, are hereby incorporated
by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms
shall be deemed to control in the event of a conflict with other provisions contained in this
Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to
RFP 8405 Transfort Snow & Ice Removal Page 47 of 63
comply with any (name of grantee) requests which would cause (name of grantee) to be in
violation of the FTA terms and conditions.
ENERGY CONSERVATION REQUIREMENTS
(42 U.S.C. 6321 et seq. 49 CFR Part 18)
Applicability to Contracts
The Energy Conservation requirements are applicable to all contracts.
Flow Down
The Energy Conservation requirements extend to all third party contractors and their
contracts at every tier and subrecipients and their subagreements at every tier.
Model Clause/Language
No specific clause is recommended in the regulations because the Energy Conservation
requirements are so dependent on the state energy conservation plan. The following
language has been developed by FTA:
Energy Conservation - The contractor agrees to comply with mandatory standards and
policies relating to energy efficiency which are contained in the state energy conservation
plan issued in compliance with the Energy Policy and Conservation Act.
TERMINATION
(49 U.S.C. Part 18 FTA Circular 4220.1E)
Applicability to Contracts
All contracts (with the exception of contracts with nonprofit organizations and institutions of
higher education,) in excess of $10,000 shall contain suitable provisions for termination by
the grantee including the manner by which it will be effected and the basis for settlement.
(For contracts with nonprofit organizations and institutions of higher education the
threshold is $100,000.) In addition, such contracts shall describe conditions under which
the contract may be terminated for default as well as conditions where the contract may be
terminated because of circumstances beyond the control of the contractor.
Flow Down
The termination requirements flow down to all contracts in excess of $10,000, with the
exception of contracts with nonprofit organizations and institutions of higher learning.
Model Clause/Language
FTA does not prescribe the form or content of such clauses. The following are
suggestions of clauses to be used in different types of contracts:
a. Termination for Convenience (General Provision) The (Recipient) may terminate
this contract, in whole or in part, at any time by written notice to the Contractor when it
is in the Government's best interest. The Contractor shall be paid its costs, including
contract close-out costs, and profit on work performed up to the time of termination.
The Contractor shall promptly submit its termination claim to (Recipient) to be paid the
Contractor. If the Contractor has any property in its possession belonging to the
(Recipient), the Contractor will account for the same, and dispose of it in the manner
the (Recipient) directs.
RFP 8405 Transfort Snow & Ice Removal Page 48 of 63
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
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 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.
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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.
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.
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
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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 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.
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
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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 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.
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
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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.
- 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.
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(2) If any funds other than Federal appropriated funds have been paid or will be paid to
any person for making lobbying contacts to an officer or employee of any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with this Federal contract, grant, loan, or
cooperative agreement, the undersigned shall complete and submit Standard Form--
LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions [as
amended by "Government wide Guidance for New Restrictions on Lobbying," 61 Fed.
Reg. 1413 (1/19/96). Note: Language in paragraph (2) herein has been modified in
accordance with Section 10 of the Lobbying Disclosure Act of 1995 (P.L. 104-65, to be
codified at 2 U.S.C. 1601, et seq.)]
(3) The undersigned shall require that the language of this certification be included in the
award documents for all subawards at all tiers (including subcontracts, subgrants, and
contracts under grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when
this transaction was made or entered into. Submission of this certification is a prerequisite
for making or entering into this transaction imposed by 31, U.S.C. § 1352 (as amended by
the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification
shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for
each such failure.
[Note: Pursuant to 31 U.S.C. § 1352(c)(1)-(2)(A), any person who makes a prohibited
expenditure or fails to file or amend a required certification or disclosure form shall be
subject to a civil penalty of not less than $10,000 and not more than $100,000 for each
such expenditure or failure.]
The Contractor, ________________ ___, certifies or affirms the
truthfulness and accuracy of each statement of its certification and disclosure, if any. In
addition, the Contractor understands and agrees that the provisions of 31 U.S.C. A 3801,
et seq., apply to this certification and disclosure, if any.
__________________________ Signature of Contractor's Authorized Official
__________________________ Name and Title of Contractor's Authorized Official
___________________________ Date
CLEAN AIR
(42 U.S.C. 7401 et seq, 40 CFR 15.61, 49 CFR Part 18)
Applicability to Contracts
The Clean Air requirements apply to all contracts exceeding $100,000, including indefinite
quantities where the amount is expected to exceed $100,000 in any year.
Flow Down
The Clean Air requirements flow down to all subcontracts which exceed $100,000.
Model Clauses/Language
No specific language is required. FTA has proposed the following language.
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.
RFP 8405 Transfort Snow & Ice Removal Page 55 of 63
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.
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.
CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
Background and Application
The Contract Work Hours and Safety Standards Act is codified at 40 USC 3701, et seq.
The Act applies to grantee contracts and subcontracts “financed at least in part by loans or
grants from … the [Federal] Government.” 40 USC 3701(b)(1)(B)(iii) and (b)(2), 29 CFR
5.2(h), 49 CFR 18.36(i)(6). Although the original Act required its application in any
construction contract over $2,000 or non-construction contract to which the Act applied
over $2,500 (and language to that effect is still found in 49 CFR 18.36(i)(6)), the Act no
longer applies to any “contract in an amount that is not greater than $100,000.” 40 USC
3701(b)(3) (A)(iii).
The Act applies to construction contracts and, in very limited circumstances, non-
construction projects that employ “laborers or mechanics on a public work.” These non-
construction applications do not generally apply to transit procurements because transit
procurements (to include rail cars and buses) are deemed “commercial items.” 40 USC
3707, 41 USC 403 (12). A grantee that contemplates entering into a contract to procure a
developmental or unique item should consult counsel to determine if the Act applies to that
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procurement and that additional language required by 29 CFR 5.5(c) must be added to the
basic clause below.
The clause language is drawn directly from 29 CFR 5.5(b) and any deviation from the
model clause below should be coordinated with counsel to ensure the Act’s requirements
are satisfied.
Clause Language
Contract Work Hours and Safety Standards
(1) Overtime requirements - No contractor or subcontractor contracting for any part of
the contract work which may require or involve the employment of laborers or
mechanics shall require or permit any such laborer or mechanic in any workweek in
which he or she is employed on such work to work in excess of forty hours in such
workweek unless such laborer or mechanic receives compensation at a rate not less
than one and one-half times the basic rate of pay for all hours worked in excess of
forty hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages - In the event of any
violation of the clause set forth in paragraph (1) of this section the contractor and any
subcontractor responsible therefor shall be liable for the unpaid wages. In addition,
such contractor and subcontractor shall be liable to the United States for liquidated
damages. Such liquidated damages shall be computed with respect to each individual
laborer or mechanic, including watchmen and guards, employed in violation of the
clause set forth in paragraph (1) of this section, in the sum of $10 for each calendar
day on which such individual was required or permitted to work in excess of the
standard workweek of forty hours without payment of the overtime wages required by
the clause set forth in paragraph (1) of this section.
(3) Withholding for unpaid wages and liquidated damages - The (write in the name of
the grantee) shall upon its own action or upon written request of an authorized
representative of the Department of Labor withhold or cause to be withheld, from any
moneys payable on account of work performed by the contractor or subcontractor
under any such contract or any other Federal contract with the same prime contractor,
or any other federally-assisted contract subject to the Contract Work Hours and Safety
Standards Act, which is held by the same prime contractor, such sums as may be
determined to be necessary to satisfy any liabilities of such contractor or subcontractor
for unpaid wages and liquidated damages as provided in the clause set forth in
paragraph (2) of this section.
(4) Subcontracts - The contractor or subcontractor shall insert in any subcontracts the
clauses set forth in paragraphs (1) through (4) of this section and also a clause requiring
the subcontractors to include these clauses in any lower tier subcontracts. The prime
contractor shall be responsible for compliance by any subcontractor or lower tier
subcontractor with the clauses set forth in paragraphs (1) through (4) of this section.
TRANSIT EMPLOYEE PROTECTIVE AGREEMENTS
(49 U.S.C. § 5310, § 5311, and § 5333 29 CFR Part 215)
Applicability to Contracts
The Transit Employee Protective Provisions apply to each contract for transit operations
performed by employees of a Contractor recognized by FTA to be a transit operator.
(Because transit operations involve many activities apart from directly driving or operating
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transit vehicles, FTA determines which activities constitute transit "operations" for
purposes of this clause.)
Flow Down
These provisions are applicable to all contracts and subcontracts at every tier.
Model Clause/Language
Since no mandatory language is specified, FTA had developed the following language:
Transit Employee Protective Provisions.
(1) The Contractor agrees to the comply with applicable transit employee protective
requirements as follows:
(a) General Transit Employee Protective Requirements - To the extent that FTA
determines that transit operations are involved, the Contractor agrees to carry out
the transit operations work on the underlying contract in compliance with terms and
conditions determined by the U.S. Secretary of Labor to be fair and equitable to
protect the interests of employees employed under this contract and to meet the
employee protective requirements of 49 U.S.C. A 5333(b), and U.S. DOL
guidelines at 29 C.F.R. Part 215, and any amendments thereto. These terms and
conditions are identified in the letter of certification from the U.S. DOL to FTA
applicable to the FTA Recipient's project from which Federal assistance is provided
to support work on the underlying contract. The Contractor agrees to carry out that
work in compliance with the conditions stated in that U.S. DOL letter. The
requirements of this subsection (1), however, do not apply to any contract financed
with Federal assistance provided by FTA either for projects for elderly individuals
and individuals with disabilities authorized by 49 U.S.C. § 5310(a)(2), or for
projects for nonurbanized areas authorized by 49 U.S.C. § 5311. Alternate
provisions for those projects are set forth in subsections (b) and (c) of this clause.
(b) Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C. §
5310(a)(2) for Elderly Individuals and Individuals with Disabilities - If the contract
involves transit operations financed in whole or in part with Federal assistance
authorized by 49 U.S.C. § 5310(a)(2), and if the U.S. Secretary of Transportation
has determined or determines in the future that the employee protective
requirements of 49 U.S.C. § 5333(b) are necessary or appropriate for the state and
the public body subrecipient for which work is performed on the underlying
contract, the Contractor agrees to carry out the Project in compliance with the
terms and conditions determined by the U.S. Secretary of Labor to meet the
requirements of 49 U.S.C. § 5333(b), U.S. DOL guidelines at 29 C.F.R. Part 215,
and any amendments thereto. These terms and conditions are identified in the
U.S. DOL's letter of certification to FTA, the date of which is set forth Grant
Agreement or Cooperative Agreement with the state. The Contractor agrees to
perform transit operations in connection with the underlying contract in compliance
with the conditions stated in that U.S. DOL letter.
(c) Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C. §
5311 in Nonurbanized Areas - If the contract involves transit operations financed in
whole or in part with Federal assistance authorized by 49 U.S.C. § 5311, the
Contractor agrees to comply with the terms and conditions of the Special Warranty
for the Nonurbanized Area Program agreed to by the U.S. Secretaries of
Transportation and Labor, dated May 31, 1979, and the procedures implemented
by U.S. DOL or any revision thereto.
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(2) The Contractor also agrees to include the any applicable requirements in each
subcontract involving transit operations financed in whole or in part with Federal
assistance provided by FTA.
CHARTER BUS REQUIREMENTS
(49 U.S.C. 5323(d), 49 CFR Part 604)
Applicability to Contracts
The Charter Bus requirements apply to the following type of contract: Operational Service
Contracts.
Flow Down Requirements
The Charter Bus requirements flow down from FTA recipients and subrecipients to first tier
service contractors.
Model Clause/Language
The relevant statutes and regulations do not mandate any specific clause or language.
The following clause has been developed by FTA.
Charter Service Operations - The contractor agrees to comply with 49 U.S.C. 5323(d)
and 49 CFR Part 604, which provides that recipients and subrecipients of FTA assistance
are prohibited from providing charter service using federally funded equipment or facilities
if there is at least one private charter operator willing and able to provide the service,
except under one of the exceptions at 49 CFR 604.9. Any charter service provided under
one of the exceptions must be "incidental," i.e., it must not interfere with or detract from the
provision of mass transportation.
SCHOOL BUS REQUIREMENTS
(49 U.S.C. 5323(F), 49 CFR Part 605)
Applicability to Contracts
The School Bus requirements apply to the following type of contract: Operational Service
Contracts.
Flow Down Requirements
The School Bus requirements flow down from FTA recipients and subrecipients to first tier
service contractors.
Model Clause/Language
The relevant statutes and regulations do not mandate any specific clause or language.
The following clause has been developed by FTA.
School Bus Operations - Pursuant to 69 U.S.C. 5323(f) and 49 CFR Part 605, recipients
and subrecipients of FTA assistance may not engage in school bus operations exclusively
for the transportation of students and school personnel in competition with private school
bus operators unless qualified under specified exemptions. When operating exclusive
school bus service under an allowable exemption, recipients and subrecipients may not
use federally funded equipment, vehicles, or facilities.
DRUG AND ALCOHOL TESTING
(49 U.S.C. §5331, 49 CFR Parts 653 and 654)
Applicability to Contracts
RFP 8405 Transfort Snow & Ice Removal Page 59 of 63
The Drug and Alcohol testing provisions apply to Operational Service Contracts.
Flow Down Requirements
Anyone who performs a safety-sensitive function for the recipient or subrecipient is
required to comply with 49 CFR 653 and 654, with certain exceptions for contracts
involving maintenance services. Maintenance contractors for non-urbanized area formula
program grantees are not subject to the rules. Also, the rules do not apply to maintenance
subcontractors.
Model Clause/Language
Introduction
FTA's drug and alcohol rules, 49 CFR 653 and 654, respectively, are unique among the
regulations issued by FTA. First, they require recipients to ensure that any entity
performing a safety-sensitive function on the recipient's behalf (usually subrecipients
and/or contractors) implement a complex drug and alcohol testing program that complies
with Parts 653 and 654. Second, the rules condition the receipt of certain kinds of FTA
funding on the recipient's compliance with the rules; thus, the recipient is not in
compliance with the rules unless every entity that performs a safety-sensitive function on
the recipient's behalf is in compliance with the rules. Third, the rules do not specify how a
recipient ensures that its subrecipients and/or contractors comply with them.
How a recipient does so depends on several factors, including whether the contractor is
covered independently by the drug and alcohol rules of another Department of
Transportation operating administration, the nature of the relationship that the recipient
has with the contractor, and the financial resources available to the recipient to oversee
the contractor's drug and alcohol testing program. In short, there are a variety of ways a
recipient can ensure that its subrecipients and contractors comply with the rules.
Therefore, FTA has developed three model contract provisions for recipients to use "as is"
or to modify to fit their particular situations.
Explanation of Model Contract Clauses
Under Option 1, the recipient ensures the contractor's compliance with the rules by
requiring the contractor to participate in a drug and alcohol program administered by the
recipient. The advantages of doing this are obvious: the recipient maintains total control
over its compliance with 49 CFR 653 and 654. The disadvantage is that the recipient,
which may not directly employ any safety-sensitive employees, has to implement a
complex testing program. Therefore, this may be a practical option only for those
recipients which have a testing program for their employees, and can add the contractor's
safety-sensitive employees to that program.
Under Option 2, the recipient relies on the contractor to implement a drug and alcohol
testing program that complies with 49 CFR 653 and 654, but retains the ability to monitor
the contractor's testing program; thus, the recipient has less control over its compliance
with the drug and alcohol testing rules than it does under option 1. The advantage of this
approach is that it places the responsibility for complying with the rules on the entity that is
actually performing the safety-sensitive function. Moreover, it reserves to the recipient the
power to ensure that the contractor complies with the program. The disadvantage of
Option 2 is that without adequate monitoring of the contractor's program, the recipient may
find itself out of compliance with the rules.
Under option 3, the recipient specifies some or all of the specific features of a contractor's
drug and alcohol compliance program. Thus, it requires the recipient to decide what it
RFP 8405 Transfort Snow & Ice Removal Page 60 of 63
wants to do and how it wants to do it. The advantage of this option is that the recipient
has more control over the contractor's drug and alcohol testing program, yet it is not
actually administering the testing program. The disadvantage is that the recipient has to
specify and understand clearly what it wants to do and why.
Drug and Alcohol Testing
Option 1
The contractor agrees to:
(a) participate in (grantee's or recipient's) drug and alcohol program established in
compliance with 49 CFR 653 and 654.
Drug and Alcohol Testing
Option 2
The contractor agrees to establish and implement a drug and alcohol testing program that
complies with 49 CFR Parts 653 and 654, produce any documentation necessary to
establish its compliance with Parts 653 and 654, and permit any authorized representative
of the United States Department of Transportation or its operating administrations, the
State Oversight Agency of (name of State), or the (insert name of grantee), to inspect the
facilities and records associated with the implementation of the drug and alcohol testing
program as required under 49 CFR Parts 653 and 654 and review the testing process.
The contractor agrees further to certify annually its compliance with Parts 653 and 654
before (insert date) and to submit the Management Information System (MIS) reports
before (insert date before March 15) to (insert title and address of person responsible for
receiving information). To certify compliance the contractor shall use the "Substance
Abuse Certifications" in the "Annual List of Certifications and Assurances for Federal
Transit Administration Grants and Cooperative Agreements," which is published annually
in the Federal Register.
Drug and Alcohol Testing
Option 3
The contractor agrees to establish and implement a drug and alcohol testing program that
complies with 49 CFR Parts 653 and 654, produce any documentation necessary to
establish its compliance with Parts 653 and 654, and permit any authorized representative
of the United States Department of Transportation or its operating administrations, the
State Oversight Agency of (name of State), or the (insert name of grantee), to inspect the
facilities and records associated with the implementation of the drug and alcohol testing
program as required under 49 CFR Parts 653 and 654 and review the testing process.
The contractor agrees further to certify annually its compliance with Parts 653 and 654
before (insert date) and to submit the Management Information System (MIS) reports
before (insert date before March 15) to (insert title and address of person responsible for
receiving information). To certify compliance the contractor shall use the "Substance
Abuse Certifications" in the "Annual List of Certifications and Assurances for Federal
Transit Administration Grants and Cooperative Agreements," which is published annually
in the Federal Register. The Contractor agrees further to [Select a, b, or c] (a) submit
before (insert date or upon request) a copy of the Policy Statement developed to
implement its drug and alcohol testing program; OR (b) adopt (insert title of the Policy
Statement the recipient wishes the contractor to use) as its policy statement as required
under 49 CFR 653 and 654; OR (c) submit for review and approval before (insert date or
upon request) a copy of its Policy Statement developed to implement its drug and alcohol
testing program. In addition, the contractor agrees to: (to be determined by the recipient,
RFP 8405 Transfort Snow & Ice Removal Page 61 of 63
but may address areas such as: the selection of the certified laboratory, substance abuse
professional, or Medical Review Officer, or the use of a consortium).
DISADVANTAGED BUSINESS ENTERPRISE (DBE)
(49 CFR Part 26)
Background and Applicability
The newest version on the Department of Transportation’s Disadvantaged Business
Enterprise (DBE) program became effective July 16, 2003. The rule provides guidance to
grantees on the use of overall and contract goals, requirement to include DBE provisions
in subcontracts, evaluating DBE participation where specific contract goals have been set,
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:
1. The names and addresses of DBE firms that will participate in this contract;
2. A description of the work each DBE will perform;
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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.
RECYCLED PRODUCTS
(42 U.S.C. 6962, 40 CFR Part 247, Executive Order 12873)
Applicability to Contracts
The Recycled Products requirements apply to all contracts for items designated by the
EPA, when the purchaser or contractor procures $10,000 or more of one of these items
during the fiscal year, or has procured $10,000 or more of such items in the previous fiscal
year, using Federal funds. New requirements for "recovered materials" will become
effective May 1, 1996. These new regulations apply to all procurement actions involving
items designated by the EPA, where the procuring agency purchases $10,000 or more of
one of these items in a fiscal year, or when the cost of such items purchased during the
previous fiscal year was $10,000.
Flow Down
These requirements flow down to all to all contractor and subcontractor tiers.
Model Clause/Language
No specific clause is mandated, but FTA has developed the following language.
Recovered Materials - The contractor agrees to comply with all the requirements of
Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42
U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247,
and Executive Order 12873, as they apply to the procurement of the items designated in
Subpart B of 40 CFR Part 247.
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ADA ACCESS
Accessibility. Facilities to be used in public transportation service must comply with 42
U.S.C. Sections 12101 et seq. and DOT regulations, “Transportation Services for
Individuals with Disabilities (ADA),” 49 CFR Part 37; and Joint ATBCB/DOT regulations,
“Americans with Disabilities (ADA) Accessibility Specifications for Transportation
Vehicles,” 36 CFR Part 1192 and 49 CFR Part 38. Notably, DOT incorporated by
reference the ATBCB’s “Americans with Disabilities Act Accessibility Guidelines”
(ADAAG), revised July 2004, which include accessibility guidelines for buildings and
facilities, and are incorporated into Appendix A to 49 CFR Part 37. DOT also added
specific provisions to Appendix A modifying the ADAAG, with the result that buildings and
facilities must comply with both the ADAAG and amendments thereto in Appendix A to 49
CFR Part 37.
CITY OF FORT COLLINS BID PROTEST PROCEDURES
The City of Fort Collins has a protest procedure, covering any phase of solicitation or
award, including but not limited to specification or award. The protest procedures are
available from the Purchasing Department, City of Fort Collins, 215 N. Mason, Street, 2nd
Floor, P. O. Box 580, Fort Collins, CO. 80522. You may also request a copy of the
procedures by emailing: Purchasing@fcgov.com or calling 970-221-6775.
None
None unless
non-
competitive
award
None
None unless
non-
competitive
award
None
None unless
non-
competitive
award
II Non State
Grantees
a. Contracts
below SAT
($100,000)
b. Contracts
above
$100,000/Capital
Projects
Yes3
Yes3
Those imposed
on non-state
Grantee pass
thru to
Contractor
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Sources of Authority:
1 49 USC 5325 (a)