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HomeMy WebLinkAboutPR 14781: SOUTHEAST TX BUILDING SERVICE - JANITORIAL SERVICES (TRANSIT) MEMORANDUM CITY OF PORT ARTHUR, TEXAS TRANSIT DEPARTMENT TO: Steve Fitzgibbons, City Manager - Colleen Russell, Director ofPlanning ~~~~~ FROM.: Tom Kestranek, Transit Manager ~~- DATE.: June 19, 2008 SUBJECT• Proposed Resolution: No. 14781 COMMENTS RECOMMENDATION We are requesting that the City Council authorize the contract for Janitorial Services at the Transit Department Complex with Southeast Texas Building Service of Nederland, Texas in the amount of $12, 960.00 per year. BACKGROUND The contract is for three (3) years beginning the date of award of the bid by City Council. This will be the first year of a three year contract. Presently, Southeast Texas Building Service is providing janitorial service to the Port Arthur Police Department complex. Purchasing solicited bids from various vendors advertised in the Port Arthur News from May 2d'' and June 1, 2008. Bid Packets were mailed or E-Mailed to sixteen (16) vendors; only three (3) bid packets were received. Bids were received and opened on June 11, 2008, from the following three (3) bidders: Southeast Texas Building Services of Nederland, TX ................ $ 12,960.00 World Tech Services of San Antonio, TX ......:.......................... $ 16, 715.16 Northstar Unlimited of Beaumont, TX .....................................$ 33,024.00 BUDGETING AND FISCAL EFFECT The proposed bid award to Southeast Texas Building Services ($12,960.00) represents a 72% increase [$5;416.44] in the yearly cost of over the current vendor, Sanserve Building Services yearly cost of $7,543.56. SanserVe Building Services of Beaumont; Texas did not attend the Pre-Bid Meeting nor did they submit a new bid proposal .Funding is available in Accounts 401-1503-561.32-00 and 401-1505-561.32-00. ~.~> , -`-` -. .. v~- 4 ~ P. R. NO. 14781 06/20/2008 STAFFING EFFECT None SUMMARY- We are requesting that the City Council authorize the Janitorial Services contract for the Transit Department Complex with Southeast Texas Building Services of Nederland, Texas in the amount of $12,960.00. Southeast Texas Building Services was the lowest responsible bid received. ...:: ~tm •.-~ .~', ..r r RESOLUTION NO. P. R. No. 14781 06/27/0.8 A RESOLUTION AUTHORIZING THE EXECUTION OF A THREE (3) YEAR CONTRACT FOR JANITORIAL SERVICES AT THE TRANSIT SERVICE CENTER AND TRANSIT TERMINAL TO SOUTHEAST TEXAS BUILDING SERVICE OF NEDERLAND, TX IN THE AMOUNT OF $12,960.00 PER YEAR WHEREAS, the City advertised for bids in the Port Arthur News on May 20 and June 1, 2008 for janitorial. services at the Transit Department Complex;. and WHEREAS, bids were solicited from various vendors and three (3) bids were received, as delineated in Exhibit "A"; and WHEREAS, it is determined to be in the public interest to award the bid to Southeast Texas Building Services of Nederland, Texas, in the amount of $12,960, said bid being the lowest and responsible bid received. BE RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the City Council of the City of Port Arthur hereby awards a three (3) year contract for Janitorial Services for. the Transit Service Center and the Z.pY14791 e Transit Terminal to the lowest responsible bidder, to wit: Southeast Texas Building Service of Nederland, Texas, effective July 1, 2008. Section 3. That the Mayor and City Manager of the City of Port Arthur are hereby authorized and directed to execute on behalf of the City of Port Arthur a contract; copy of which is attached hereto as Exhibit."B", between the City of Port Arthur and Southeast Texas Building Service of Nederland, Texas for the. contract price of Twelve Thousand, Nine Hundred, Sixty and 00/100 ($12,960.00) dollars, payable in monthly installments of $1,080.00. ection 4. That this agreement can be terminated if funds are not available in any fiscal year within ten (10) days notice being given to Southeast Texas Building Service of Nederland, Texas. Section 5. That Southeast Texas Building Service of Nederland, Texas shall sign this Resolution agreeing to the terms thereof. Section 6. That a copy of the caption of this Resolution is spread upon the minutes of the City Council. READ, ADOPTED AND APPROVED this day of A.D. 2008 at a Meeting of the City Council z-.pr14791 of the City of Port Arthur, Texas, by the following vote: AYES: MAYOR COUNCILMEMBERS: NOES: MAYOR ATTEST: Acting Terri Hanks, City Secretary APPROVED AS TO FORM: Mark SokoMw, ~ty .Attorney / ~n APPROVED FOR ADMINISTRATION: ~1C1Q.~ ~~ Steve Fitzgibbons, City Manager Colleen. Russell, Director of Planning Shawna Tubbs, Purchasing Manager Tom Kestranek, Transit Manager z.pr14791 . .t... APPROVED AS TO AVAILABILITY OF FUNDS: Rebecca Underhill, CPA, Finance Director AGREEDED TO: SOUTHEAST TEXAS BIIILDING SERVICE' BY: Z.p114791 . •a..° '.~ ~® ®® { i. CITY OF PORT ARTHUR TEXAS ~ `" ~k, BID SHEET ~ ms's: °ti`. i llESCRIPTION: JANITORIAL SERVICES FOR TRANSIT DATE: JUNE 11, 2008 I ~ NAME OF BIDDER NAME OF BIDDER NAME OF BIDDER SOUTHEAST TEXAS WORLD TECH NORTHSTAR ~.' BUILDING SERVICE SERVICES UNLIMITED ITEM QUAN UOM ITEM UNIT TOTAL UNIT TOTAL UNIT TOTAL ~ COST COST COST COST COST COST i 36 MTHS JAI;VITORIAL SE DICE ~ $550.00 $ 19,800.00 $511.27 $ 18,405.72 $1,376.00 $ 49,536.00 FO Z' TRANSIT.: TERMINAL 2 36 MTHS JAI~IITORIAL SEVICE $530.00 $19,080.00 $881.66 $31,739.76 $ 1,376.00 $ 49,536.00 PO SERVICE CE .TER TOTAL $1,080.00 $ 38,880.00 $1,392.93 $ 50,145.48 $2,752.00 $ 99,072.00 ,; LOCATION NEDERLAND SAN ANTONIO BEAUMONT ~, EXHIBIT "B" JANITORIAL SERVICES CONTRACT FOR TRANSIT THIS AGREEMENT, made this day of , 2008 by and between the City of Port Arthur, a municipal corporation organized under the laws of the State ofI'exas, hereinafter called "OWNER" or "CITY" and Southeast Texas Buildin¢ Service herein acting by and through .hereinafter called "CONTRACTOR" agrees as follows: WITNESSETH: That for and in consideration of the payments, terms, conditions, and agreements set forth herein, OWNER and CONTRACTOR agree as follows: 1. The term of this Contract shall from July 1, 2008 to July 1, 2011 The City can terminate this contract at its convenience which includes, but is not limited to,_ funding not being available in any budget cycle with ten (I) days written notice. 2. The Contractor agrees to perform all the work described in the specifications; and contract documents and comply with the terms therein for the sum of $ 12 960.00 Annually; 3. The term "Contract Documents" means and includes the following: (A) Agreement (B) Advertisement for BIDS (C) Information for BIDDERS (D) BID (E) BID BOND (F) General Conditions (G) Specifications. 4. This agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors and assigns. 5. 1NWITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in (2 copies) each of which shall be .deemed an original on the date first written above. ' >v t k . - - ~ ~ ,. ~~ ~_ Signed on the day of , 2008. ATTEST CITY OF PORT ARTHUR BY . Signed on the day of 2008. ATTEST CONTRACTOR BY °ri , CITY OF PORT ARTHUR. ADVERTISEMENT FOR BIDS JANITORIAL SERVICE AT TRANSIT BUILDING MAY 25, 2008 ' JUNE 1, 2008 ,..,a i.r uF PoRr . _: ~.~ .ARTHUR, TEXAS,. c.. ADVERTISEMENT FOR:: - `. BIDS NOTICE-IS HEREBY j GIVEN ';THAT sealetl?_... -._ _-..-.... - BMS,. add7eeseGao- Oie~-` City of._POrt~Adhur. "wi11 he~-~.- br 1r-<.'.. na.`-= qe.'. `:' ie at - 1, `, '"JANR'OAIAL SERVICE '".~~- AT TRANSRBUILDING ~-. MANDATORY PRE-BID .~ iMEETING 'IS'~SCHEO- ~~~ULED`FOR"9:00 A.M.-.-_ -'JUNE>3, ".`y008, :~~.-AT"'~:, 'TRANIST~LOCATED AT-:-- 3200 DALLAS AVENUE ' . BWs received a0er.dos- ; ing Ome m71 be returned' .. unopened. ` Copies at..tfie SpeaFica\"~ bans -arid; ~otAer; ContraG .. Documents: ere. one file in"':% - x ~ ..,.. s.-~~' - BID OPENING DATE: June 11, 2008 Bid Proposal For: JANITORIAL SERVICE TRANSIT DEPARTMENT The undersigned Robert L. Bodin doing. -- ' business in the City/Town of Nederland _ , submits herewith, in conformity with. the General Insllvctions, Conditions, znd Specifications for the following Bid: - OUTLINE OF BID DATA: ITF..M QUAN UOM llESCRIPTION UNIT COST' TO'T'AL COST P 36 MTH JANITOR.[AL SERVICE FOR TKANSITTERMINAL $ 550.00 $ 191800.00 _ 2 36 MTH .TANITORIAL SERVICE FOR. - - - - SERVICE.CENTER $ 530.00 $ 19; 080.00_ Receipt of addenda is.acknowledged: No. 1 Dated Received Southeast Texas Building Service 3304 Spur-lock Road COMPANY NAME STREET ADDRESS -L"" ~ ~ _ P.O. B~1~62 _ SIGNATURE OF BIDDER PO. BOX Robert L. Bo__din (PRINT OR TYPE NAME) PresidentJOwner TITLE Nederland, TX 77627 CITY S':CATE ZIP (409) 722-4900 (409) 724-0900 AREA CODE BID PROPOSAL PAGE TELEPHONE NO. AFFIDAVIT All pages in the offerer's bid proposal containing statements, letters; etc., shall he sighed by a duly authorized officer of the company, whose signature is binding on the bid proposal. The undersigned offers and agrees to one of the following xx I hereby certify that I do not have outstanding debts with the City of Port Arthur. Further, 1 agree to pay succeeding debts as they become due during this agreement. l hereby certify that I do have outstanding debts with the City of Porf Arthur and agree to pay said debts prior to execution of this agreement I further agree to pay succeeding debts as they become due. _..__....._ I hereb}~ certify that I do have outstanding debts with the City of Port Arthur and agree to enter into an agreement for the payment of said debts. I further agree to pay succeeding debts as they become due. NAME OF OFFERER,: -Joyce . A. Bodin. 'T'ITLE Secretary/Treasurer ADDRESS C1T.Y/STATE/Z [P TELEPHONE NUM.CiER S [GIJATURE P.O. Box 1562 Nederland, TX 77627 (409) 722-4900 - ~ Win. SUBSCRIBED AND SWORN to before me by the above Warned Joyce A. Bodin on this the 11th day of .Tnn a _> 20Qg_. Notary Public in and for the State of Texas __ ~~----- RETURN THIS AFFIDAVIT AS PART OF THE BID PROPOSAI. gRRRORlOR4000OtrARtr4ACGdORR»OCRQO>R4Aa °~ =o~Pn;P~B~~TARNo[aryCPub iGAN§ A~~;tr_ STATE OF TEXAS g oj~,,,..• ~ My Commission- a °~~~~` Expires 06/O6/20f2 aeoeoaaeeaaaaabsesaaaaasoseiaeitloeee e~ `. s ~rg.• . BID OPENING DATE: June 11, 2008 CITY OP PORT ARTHUR INSTRUCT[ONS TO BIDDER Bidders are requested to famish their complete REMI'P TO ADDRESS and I TAX IDENTIFICATION NUMBER as indicated below: REMIT PAYMENT TO: COMPANY Southeast Texas Building Service ADDRESS P.0. Box 1562 CITY/STATE/7,IP Nederland, TX 77627 SEND PURCHASE ORDER'fO: COMPANY Southeast Texas Building Service ADDRESS P.0. Box 1562 CITY/STATE/ZIP Nederland, TX 77627 TAX IDENTIFICA`fIONNiJMBER 1-74-1684675-0 CONI+L.ICT O' INTER)/ST STATEMENT Please delineate all owners of your company. If you have any contractual business relationship or family relationship with any member of the governing body of the City or if you expect this to occur, please so state: r- - ~Owner: Robert L. Bodin ~I i -- I Southeast Texas Building Service- has janitorial contracts with the City of Port Arthur: I personally to do,not have any contractual business relationship or family relationship with any member of the governing ~- I body of the City. - - -- .. - i ___ _-1 -_-J Lem ' Signature ~. 9° Federally Required'ContcactGlauses for ConstructionServices Contracts Certification requirement for procurement of steel, iron, or manufactured products. Certificnte of Corripliance.7uith 49 USC § 5323(j)(1) The bidder or offeror hereby certifies that it will meet the requirements of 49 USC § 5323(j)(1) and the applicable regulations in 49 CFR Part 661. llate Signature Robert L. Bodi.n Company Name Southeast Texas Building Service _ Title Cep tificnte of Non-Cornptinnce iuith 49 L1SC § 5323(j)(1) The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 USC § 5323(j)(1), but it may qualify for an exception pursuant to 49 USC § 5323(j)(2)(B) or (j)(2)(D) and the regulations in 49 CFR § 661.7. Date Signature my Name Mandatory Clause/Language:. The Buy America regulation, at 49 CFR § 661.13, requires notificafion of the Buy America requirements in FTA-funded contracts, but does not specify the language to be used. The following language has been developed by FTA. Buy America -The contractor agrees to comply with 49 USC ~ 5323(j) and 49 CFR Part 661, which provide that Federal funds may not be obligated unless steel, iron, and manufactured products used in PTA-funded projects are produced in the Unted States, unless a waiver has been granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 CFR § 661.7, and include final assembly in the United States For 15 passenger vans and 15 passenger wagons produced by Chrysler Corporation, microcomputer equipment, software, and small purchases (currently less. than 5100,000) made with capital, operating, of planning firnds. Separate requirements for rolling stock are set out at 5323(j)(2)(C) and 49 CFR § 661.11. Rolling stock not subject to a general waiver must be manufactured in the Unted States and have a 60 percent domestic content. A bidder or offerormust submit to the FTA recipient the appropriate Buy America certification (below) with all bids on FTA-funded contracts, except those subject to a general waiver. Bids or offers that are not accompanied by a completed Buy America certification must be rejected as non-responsive. This requirement does not apply to lower tier subcontractors: r,. Title i-c uci clll~' A\'Cliullcu ~. V1iLLAl, 1. l-.1a 4JW Zvi L.viiJU Ulii Vll JC1_V 1l CJ 1. Villl aLW Certification requirement for procurement of buses, other rolling stock and associated equipment. Certificnte of Con~plin~~ce toith 49 USC § 5323(j)(2)(C). The bidder or offeror hereby certifies that it will comply with the requirements of 49 USC § 5323(j)(2)(C) and the regulations at 49 CFR Part 667.. Date Signahve Company Name _ Sout xas Building Service Title PrPeide~,/Owner ____ Certificate of Non-Qotnplinnce zuit1149 USC § 5323(j)(2)(C) The bidder or offeror hereby certifies that it cannot comply with the reauirernents of 49 USC § 5323(j)(2)(C), but may qualify for an exception pursuant to 49 USC § 5323(j)(2)(B) or (j)(2)(D) and the regulations in'49 CFR § 661.7. Date Signature Company Name ___ Title 3. CAP.GO PP.EFERENCE REQUIREMENTS 46 USC § 1241 46 CFR Part 381 Applicability to Conhacts The Cargo Preference requirements apply to all contracts involving equipment, materials, or commodities that may be transported by ocean vessels. Flow Down The Cazgo Preference requirements apply to all subconhacts when the subcontract may be involved with the transport of equipment, material, or commodities by ocean vessel. Model Clause/Language The MAP.AD regulations at 46 CFR § 381.7 contain suggested conhact clauses. The following language is proffered by FTA. 08/09/01 Robert L. Bodin Federally Required Contract Clauses for Construction Services Contracts 8. 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, ormodification of any Federal contract, grant, loan, or cooperative agreement. (2) IE 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 Porm--LLL, "Disclosure Form to Report Lobbying," in accordance with its inshuctions [as amended by "Government wide Guidance for New Resh'ichons on Lobbying," 61 Fed. Reg. 1413 (1/19/96). Note: Language in paragraph (?) herein has been modified in accordance with Section 10 of the Lobbynlg Disclosure Act of 1995 (PL 104-65, to be codified at 2 USC § 1601, et seq.)] (3) The undersigned shall require that the tang-cage of this certification be iiuluded 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 t is - -.___ transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31, iiSC § 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 SC § 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 penahy of not less than $10,000 and not more than $100,000 for each such expenditure or failure.] The Contractor, gDl~zt-L_ Hodi n 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 provi ns of 31 USC § A 3801, et seq., npply to this certification and disclosure, li a ~ lam, ~ Signature of Contractors Authorized Official Robert L. Bodin/Pres},~g~~rndTitleofContractor'sAuthorizedOlficial one I1 2008 -Date 8. ACCESS TO RECORDS AND REPORTS 49 USC § 5325 18 CFR § 18.36 (i) 49 CFR § 633.17- Applicability to Contracts .08/09/01 CITY OF PORT ART33iJR TEXSAS BID SHEET i DESCRIPTION: JANITORIAL SERVICES FOR TRANSIT DATE: JUNE 11, 2008 NAME OF BIDDER NAME OF BIDllElt NAME OF BIDDER SOUTHEAST TEXAS WORLD TECH NORTHSTAR BUILDING SERVICE SERVICES UNLIMITED ITEM QUAN UOM ITEM UNIT TOTAL UNIT TOTAL UNIT TOTAL # COST COST COST CO5T COST COST 1 36 MTHS JANITORIAL SERVICE $550.00 $ 19,800.00 $511.27 $ 18,405.72 $1,376.00 $ 49,536.00 FOR TRANSIT TE i~ AL 2 36 MTHS JANITORIAL SERVICE $530.00 $19,080.00 $881.66 $31,739.76 $ 1,376.00 $ 49,536.00 FOR SERVICE CENTER TOTAL $1,080.00 $ 38,880.00 $1,392.93 $ 50,145.48 $2,752.00 $ 99,072.00 LOCATION NEDERLAND SAN ANTONIO BEAUMONT ~, CITY OF PORT ARTHUR GENERAL SPECIFICATIONS GENERAL INFORMATION: NOTE: It is extremely important that the Vendor, Bidder, and/ar Contractor furnish the City of Port Arthur the required information specified. i:~ the Bid oa• Proposal Specifications listed in this Bid Package. The intent of this INVITATION TO BiD (ITB) is to provide bidders with sufficient information to prepare SEALED BIDS IN DUPLICATE for furnishing: ~ANITORIA? SERVICES FOR TRANSIT Bids must be in a sealed envelope addressed to the City Secretary, City of Port Arthur, P. O. Box ] 089, Port Arthur, Texas 77641. Bids shall be received no liter that 3:00 P. M. Lune I ], 2008.. Bid proposal MUST BE SIGNED BY THE BIDDER. All bids meeting the intent of this request for bid will be considered for award. BIDDERS TAKTNG EXCEPTION TO THE SPECIFICATIONS, OR OFFERING SUBSTITUTIONS, SI-IALL STATE THESE EXCEPTIONS BY A1"TACHMENT AS PART OF THE BID. The absence of such a list shall indicate that the bidder has not taken exception and the City shall hold the bidder responsible to perform in strct accordance with the specifications of the invitation. The City reserves the right to accept any and all or none ofthe exception(s),~suUstitutions(s) deemed to be in the best interest of the City of Port Arthur. Bids cannot be altered or amended after submission deadline. Any interlineation, alteration, or r:.rasure made before opening time must be initialed by the signer of the bid, guaranteeing authenticil:y. "I'he City reserves the right to: 1. Reject any and all bids, and to make no award if it deems such action to be in its best interest. 2. Award bids on the ]wup sum or unit price basis, whichever is in the best interest of the City. 3. Reject any or all bids and to waive informalities or defects in bids, or tc accept'such bids as it shall deem to be in the best interests of the City. 4. Award bids to bidders whose principal place of Uusiness is in the City of Port Arthur and whose bid is within 5% of the lowest bid price. This preference can't be granted for purchases involving Federal Funds. The award shall be made to the responsible vendor(s) whose bid is determined to be tii; lowest offer; taking into consideration the relative importance of price, conformance to specifications; and capability and experience of the contractor. TERMINOLOGY: "bid" vs. "Proposal"--F'or the purpose of this ITB, flretenns "Bid" and Proposal" shall be equivalent. Bidders are cautioned to read the information contained in this ITS carefully and to submit a complete response to all requirements and questions as directed. CONFLICT OF INTEREST: No public official shall have interest in this contract, in accordance with Vernon's Texas Code Annotated, Local Government Code Title 5, Subtitle C, Chapter 171. ETHICS: The bidder shall not offeror accept gifts or anything of value, nor enter into any business arrangement with any employee, official or agent of the City of °crtArthur. MINIMUM STANDARDS FOR RESPONSIBLE PROSPECTIVE BIDDERS: A prospective bidder must affirmatively demonstrate bidder's responsibility. A prospective bidder must meet the following requirements: 1. Be able to comply with. the required or proposed delivery schedule. 2. Have a satisfactory record of performance. 3. Have a satisfactory record of integrity and ethics. 4. Be otherwise qualified and eligible to receive au award. 5. Be engaged in a frill time business, and can assume liabilities for any performance or waiYanty service required. 6. The City Council shall not award a contract to a company that is in arrears in its obligations to the City. 7. No payments shall be made to any person of public moneys under any contract by the City with such person until such person has paid all obligations and debts owed to the City, or has made satisfactory atTangements to pay the same. Any interpretations, coiTections or changes to the ITB and Specif cations v:ill be made, by addenda. Sole issuing authority of addendas shall be vested in the City of Port Arthur Purchasing Manager. Addendas will be mailed to all who are known to have received a copy of the ITB. Offerers shall acknowledge receipt of all addenda. PRICES: The bidder should show in the proposal both the unit price and total amount, where required, of each item listed. In the event of error or discrepancy in the mathematics, the unit price shall prevail. PURCHASE ORDER: A purchase order(s)shall be generated by the City of Port Arthur to the successful bidder. The purchase order number must appear on all itemized invoices. - INVOICES: All invoices shall be mailed directly to the City of Port ArL'rur, Attn.: Transit Department, P. O. Box 1089, Port Arthur, Texas 77641. PAYMENT: Paynieut will Ue made upon receipt of the original invoice and the acceptance of the goods or services by the City of Port Arthur. SALES TAB; '1 he City nf~Port Arthur is exempt by law from payment of Texas Sales Tax and Federal Excise Tax, therefore the proposal shall not include Sales Tax. VENUE: This agreement will be governed and construed according to the laws of the State of Texas. This agreement. is performable in Port Arthur, Texas, 7efferson County. COMPLIANCE WITH LAWS: The Contractor shall comply with all applicaL•i~ laors; . ordinances, rules, orders, regulations and codes of the federal, state and Local govennnents relating to performance of work herein. iNTGREST nF iYIGMBERS OF CITY: No member of the governingboriy of the City, and no other officer, employee or agent of the City who exercises any functions or responsibilities in connection with the planning and canying out of the progt'am, shall have any personal financial interest, direcC or indirect, in this Contract; and, the Contractor shall take appropriate steps to assure compliance. DELINQUENT PAYMENTS DUE CITY: The City of Port Arthur Code of Ordinazaces prohibits the City from <oranting any license, pm~ilege or paying money to anyone owing delinquent taxes, paving assessments or any money to the-City until such debts are paid or until satisfactory mrangements for payment has been made. Bidders must complete and sign the AFFIDAVIT included as part of this ITB. CONTRACT`. The following will comprise the contract between the City and the successful bidder: 1. Information for Bidders 2. Bid Sheet 3. Notice of Awards -- 4. Specifications 5. Addenda OUANTITIES_ Quantities shown are estimated, based on projected use. It is specifically understood and agreed that these quantities are approximate and any additional quantities will be paid for at the quoted price. It is further understood that the supplier shall not have any claim against the City of Port Arthur for quantities less than the estimated amount. All bids will remain in effect for one year after the bid opening date. If through auy cause the Bidder fails to fitlfill in a timely and proper manner, his obligations under this Contract, or fails to perform in accordance with these specifications, the ~'ity reserves the right to terminate this Contract by giving written notice to the Bidder of such termination and specifying the effective date thereof, at least fifteen (15) days before the effective date of such termination. No person has the authority to verbally alter these specifications. Any interpretations, conections or changes to this ITB and specifications will be made in writing by the Purchasing Division of the City of Port Arthur and sent to each person having a bid package. The vendor must be an authorised dealer for all products offered. The vendor must give the manufacturers name and product description of all items. Inferior products, products which perform at a substandard level, or poor quality products wiL be rejected. SHIPPING INFORA%IATIO_N_: All bids are to be P.O.B., City of Port Arthur, Port Arthur, "Texas 77640 INCORPORATION OF PROVISIONS REQUIRED BY LAW: E.aclr provision and clause required by law to be inserted into the Contract shall be deemed Co be enacted herein and the Contract shall be read and enforced as though each were included herein. If, through mistake or otherwise, any such provision is not inserted or is not correctly inserted, the Carfract shall be amended to make such insertion on application by either party. CONTRACTOR'S OBLIGATIONS: The Contractor shall and will, in good workmanlike manner, perform all work and furnish all supplies and materials; machinery, equipment, facilities and means, except as herein otherwise expressly specifed, necessary or proper to perform and complete all the work required by this Contract, in accordance with the provisions of this Contract and said specifications. The apparent silence of these specifications as to any detail or to the apparent omission from it of a detailed description concerning any point, shall be regarded as meaning that only the best commercial practices are to prevail. All interpretations of drese specifications shall be made on the basis of statement. While the purpose of the specifications is to indicate minimum requirements in the way of capability, performance, construction, and other details, its use is nct intended to deprive the City of Port Arthur the option of selecting goods which may've considered most suitable for the purl-lose involved. In the event of conflicts between the written bid proposal and information obtained verbally, the vendor is specifically advised that the written bid proposal will prevail in the determination of the successful bidder- Under the Title V l of the Civil Rights Act of 1964, no person shall, on the grounds of race, color; or national origin, be excluded from participation in, be denied the benefits of, or be subjected-to discrimination under any program or activity receiving Federal_ financial assistance. .. Questions concerning this ITB or additional information should be directed Tom Kestranek at 409-983-8767. TFRI~~INATION OF CONTRACT If, through any cause, the Contractor shall fail to fulfill in a timely and proper manner his obligations under this contract, or if the Contractor shall violate any of the convenants, agreements or stipulations of this contract, the City shall thereupon have the right to terminate this contract by giving written notice to the Contractor of such termination and. specifying the effective date thereof, at least fiileen (15) days befare the effective date ci.' such termination: Notwithstanding the above, the Contractor shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of the contract by the Contractor, and the City may withhold any payments to the Contractor for the purpose of set-off until such time as the exact amount of damages due the City from the Contractor is determined. I.NSPECTIONS Unscheduled job-site inspections will be performed by the City of Port Arthur Transit Department Representatives. Failure to abide by the City's specifications will be grrounds for immediate termination of the contract. A minimum of two (2) monthly daylight inspections may be made by the City of Port Arthur Transit Department Representative. CUSTODIAN COMPLAINTS 3c SERVICE REPORTS Custodian Complaints & Service Reports, from employees of the Transit Department vain be turned into the Transit Director. Janitorial Service Contractor shall pick up request and take co~zective action immediately. TERM OF CONTRACT This is a three (3) year contract, the City can terminate this contract at its convenience which includes, but is not limited to, funding not being available in any budget cycle with thirty (30) days written notice. ~: GENF..RAL CONDITIONS: 1.0 This contract will include Janitorial' Service at the City of Part Arthur Transit Department. 2.0 This is a three (3) year contract, the City can terminate this contract at its convenience which includes, but is not limited to, funding not being available in any budget cycle with thirty (30) days written notice. 3.0 The City, of Port Arthur or its authorized agent shall have the right to inspect the work at all times and upon completion thereof. There shall be no deviation from any part of the contract or from any approved schedule without prior approval from the Transit Department. The Contractor may not assign ail or part of this contract without prior consent in writing by the City.. 4.0 Any problems encountered or inability to clean fa• any reason shall immediately be brought to the attention of the Transit Manager. 5.0 All insurance must be written by an insurer licensed to conduct business in the State of Texas, unless otherwise permitted by City. The Contractor shall, at his own expenses, purchase, maintain and-keep in force insurance that will prated against injury and/or damages fvhich may arise out of or result from operations under this contract, whether the operations be by himself or by any subcontractor or by anyone directly or indirectly employed by any of them, or , or by anyone for whose acts an}~ of them may be liable of the following types and limits (no insurance policy or certificate of insurance required below shall contain any aggregate policy year limit unless a specific dollar amount (or specific formula for determi!ting a specific dollar amount) aggregate policy year limit is expressly provided in t??.e specification below which covers the particular insurance policy or certificate of insurance). S.l Standard Worker's Compensation Insurance (with Waiver of Subrogation lit favor of the City of Port ,Arthur, its officers, agents and employees). 5.2(a) Bodily Injury $500,000 single limit per occurrence or $500,000 each person/$500,000 occurrence for contracts of $100,000 or less; or The term "Contract Documents" means and includes the foilovring: (A) Agreement (B) Information to Bidders (C) Bid Sheets (D) GeneraLConditimts (1;) Notice of Award ~ (F) Noticc to.Mow (G) Technical Specifications 6. The City will pay to the Contractor in the manner and at such tunes as set forth in the General Conditions such amounts as required by the Contract Documents i. This Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors and assigns. 8. IN WITNESS WHEREOF, the parties hereto have executed, ar caused to be executed by their duty authorized officials, this agreement in ( copies) each of which shall be deemed an original on the date first above written. Y Insurance All insurance must be written by an insurer licensed to conduct business in the State of Texas, unless otherwise permitted by Owner. The Contract shall, at his own expense, purchase, maintain and keep in force insurance that will protect against injury and/or damages which may arise out of or result from operations under tints contract, whether the operations be by himself or by any subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them maybe liable, of the following ty)~es and limits (no insurance policy or certificate of insurance required below shall contain any age egate policy year limit unless a specific dollar amount (or specific formula for determining a specific dollar amount) aggregate policy year limit is expressly provided in the specification below which covers the particular insurance policy or certificate of insurance. , Standard Worker's Compensation hrsmance: 2. Commercial General Liability occurrence type insurance (products/completed operations coverage must be included, and City of Port Arthur, its olTicers, agents, and employees must be named as an additional --- . insured): a. Bodily injury $500,000 single limit per occurrence or $500,OOG each person/$500,000 per occunence for contracts of $100,000 or less; or b. Bodily injury $1,000,000 single limit per occurrence or $500,00 each person /$1,000,000 per occurrence for contracts in excess of $100,000; and, c. Property Damage $100,000 per occurrence regardless of contract amount; and, d. Minimum aggregate policy yeaz limit of $1,000,000 for contracts cf $100,000 or less; or; e. Minimum aggegate policy year limit. of $2,000,000 for contracts m excess of $100;000. 3. Commercial Automobile Liability Insurance (Including owned, non- owned and hired. vehicles coverage's). a. Minimum combined single limit of $500,000 per occurrence, for bodily injury and property damage. b/ [f individual limits are provided,. minimum limits are $300,000 per person, $500,000 per occurrence forbodily injury and $100,000 per occm-rence fur property damage. 4. Contractual Liabilitytnsurancecoveringtheindernnityprovisionofthis Contract in the same amount and coverage as provided for Commercial_ Contractor shall cause Contractor's insurance company or insurance agent to fill in all information required (including names of insurance agency, Contractor and insurance companies, and policy members, effective dates and expiration dates) and to dates and sign and do all other things necessary to complete and make into valid certificate of insurance the CERTIFICATE OF INSURANCE Form attached to and made a part of the Information To Bidders, and pertaining to the above listed itens 1, 2, 3 and. 4; and before commencing any of the work and within the time otherwise specified, Contractor shall file completed Foam with.the Owner. None of the provisions in said Form shall be altered or modified in any respect except as herein expressly authorized. Said CERTIFICATE OF INSURANCE Porm contains aprovision that coverage afforded under the policies will not he altered, modified or canceled unless at least ffteer. (15) days prior written notice has been given to the Owner. Contractor shall also file with the Owner valid CERTIFICATE OF INSURANCE on like form from or for all Subcontractors and showing the Subcontractor (s) as the Insured. Said completed CERTIFICATE OF INSURANCE Form (s) shall in any event be filed with the OWNER not more than ten (10) days after execution of this Contract. The original Builders Risk policy (if required) shall provide for fifteen (IS) days written notice of alternation, mndif cation or cancellation and shall be furnished to OWNER. Provided, however until the original policy ,which original pcliry must be received by the OWNER not later than (thirty) days after issuance of the Notice to Proceed for the project: Notwithstanding any other provision in the Contact Documents, it is further mutually understood and agreed that no payment will be due and owing or made to the CONTRACTOR for any work performed under the Contract until all of the required insurance documentation, including the original policy specified above, a*e received by the OWNER ~,.;. /- MANDATORY PRE-BID CONFERENCE A Mandatory Pre-Bid Conference between Representatives of the Ci±y of Port Arthur, Texas and prospective bidders for Janitorial Service for Transit Department will beheld at the Transit Service Center which is located at 301 4th Street on Jwie 11, 2008 at 9:C0 a. m. The purpose ofthe iv1andatorv Prc-Bid Conference is to make certain that the scope of work is fully understood; to answer any questions, to clarify the intent ofthe-Contract Documents, and to resolve any problems that may affect the project construction. No addendum will be issued at this meeting, but subsequent thereto, the Purchasing Coordinator, if necessazy, will issue an addendum(s) to clarify the intent of the Contract Documents. CITY OF PORT ARTHUR, TEXAS TRANSIT DEPARTMENT . SERVICE-CENTER SPECIFICATIONS FOR: Janitorial Services for Transit System Service Center Building Maintenance ADMINISTRATIVE OFFICES fi DRIVERS' ROOM (MONDAY THROUGH FRIDAY): -- Sweep, dust mop, and/or vacuum all file floors and buff all floors, including .office restrooms, with ` a 1300 rpm high speed buffer. -- Wash and dust desks, chairs, lamps, office furniture (no Endust allowed anywhere). -- Clean and wash all formica counter tops thoroughly. -- Clean and polish daily (with stainless steel cleaner) the rear office utility sink .and faucet fixture. -- Clean and wash all ashtrays.: - Clean doors and door frames. - ------Clean around wall switches 3n all rooms. -- Pick up trash off floors, empty and reline trash containers with new liners. -- Damp mop file floors as needed, special attention to the Floor area next to walls, file. cabinets, book cases, etc. will be needed. -- Clean office restroom commode; mirror, lavatory sink and fixtures thoroughly. P.ESTROOMS AND SHOWERS (MONDAY THROUGH FRIDAY): -- Damp .mop floors as needed. -- Polish all metal and clean all mirrors. -- Clean and polish daily (with stainless steel cleaner) the water fountain. -- Clean all commodes, urinals, lavatory sinks and fixtures thoroughly. -- Refill soap, towel (usi_ng appropriate type of towels fi filled so towels dispense properly), and toilet paper containers. -- Clean doors, door frames, and formica counter tops thoroughly. --.Clean around wall switches in restrooms_ 4TE E KLY t -- Sweep entire garage area. -- Clean oil and grease on garage floor area. -~. TRANSIT.DEP.ARTMENT SERVICE CENTER (Continued) WEEKLY -- Clean all ventilation ducts and light fixtures in .main office. - Clean all cold air return vents in main office ceiling. -- Clean ledges and window sills, and mini blinds in main offices. -- lightly strip, wax, and buff all the floors. BI-WEEKLY: - Supervisor~~orill monitor work and see that it is done to specifications. A compliance checklist will be submitted to Transit Management bi-weekly.. QUAP.TERLY -- Strip, reseal, and wax all the floors (Administrative - offices, Driver's room, rest room, and rear office): -- Clean all windows in main office. CLEANING SERVICES NOT REQUIRED BY BIDDER: - Bidder will not be required to clean or maintain maintenance office, located within the garage area of the building. Admittance into the maintenance office -. is restricted. SUPPLIES FUP~NISHED BY THE BIDDER: - Cleaners; bowl cleaner; wax remover and wax; dustmop; damp mops, brooms; buffer; vacuum cleaner; furniture polish and anything else pertaining to cleaning. Plastic liners f_or all trash containers in main office, restrooms, and driver s room. SUPPLIES NOT TO BE FURNISHED BY THE BIDDER: -- Unless directed by Transit Management, bidder is NOT TO furnish paper towels, toilet tissue,"deodorant blocks, or light bulbs- 3s„ -~~~' TRALiSZT..DEPARTML•LiT SEF.VZCE CEPITER (Continued) SECURITY NOTE: --- Bidder will be held responsible for securing all entrances as well as disarming and rearming the Building's Electronic Security/Fire ATarm System. UALITY ASSUItANCEs -- Providing Transit Management with a Janitorial Services compliance checklist, bi-weekly, will be a requirement in meetin& contract specifications and payment. For additional information or an inspection. of the facility, contact Tir. Tom I:estranek at 953-8767. CIT'i OF .FOP.T ?..RTEiUH TEX.f.S TELnNSIT DEPAP.Tt•[-tCiT Tc2.~f15IT TEEL`tINAL SPECIFIC?.TIOtiS FOR: Janitorial. Ser_ti'ices £or Transit Terninal Building maintenance hOBBY WAITING AREA (2tOHDAY,T(tROUGH'FP.IDAY):. - _• ~• -- Sweep Floors •.; -- Piop Floors with water £. xequired portion of a general purpose cleaner ONLY as needed, or as requested by Transit tfanagement. 1:estore.FJ.oo.xs with Franklin Restore It or approved equal and buff. Frith a 1300 rpm.hgh speed buffer as required after cleaning, - Clean and wash all. table tops, seats and their metal frame assec~blies as needed or as requested by Transit 1•Sanagement. -- Empt;• and wipe out all_ ashtrays with a damp cloth daily._ - Clean and wipe doom public pay phone stations. - 4;i.pe clean walls, money changer facing, and trim as needed, or as requested by Transit manager. -- Clean glass doors leading into lobby, lower front glass pane windows, and glass display case doors. -- Clean doors and door frames. -- Empty and reline trash containers with new liners as necessary. -- Clean and polish daily (with stainless steel cleaner) the Eater Fountain. PSSTP.OO2tS (i~tOiIDAY THP.OUGH PP.IDAY) -- Sweep Floors. -- 14op Floors with water and xequired portion of a general purpose. cleaner OCiLY as needed, ox as requested by Transit Ptanagement. P.estore Ploor.s with Pxan)ain Restore It or approved equal and buff with a 1300 rpm high speed buffer as xequired after cleaning. - Folish all metal and clean all mixrors. -- Clean all coacodes, urinals, lavatory sinba and fixtures thoroughly. -- P.efilJ. soap, towel (using appropriate type of tcaels ~ filled so to:rels dispense properly), and toilet paper containers. -- Clear: doors, door: (razes, and fort^-ica counter tops thoroughly. -- ]:~~oty to~.rel/trash containers FJ:~;ISLD x,/91 ,.; .Page 1 of ., _. ,._.~,, ., , $.,;:,- . SFECtPIC:~CIOtIS F0°. .ii~:~iTO'.h1h S`Et2VICE5 1'P~V"fSIT 1'CP<:~[LtaL (CoatinuedJ OUTSIDE TRASk[ PSCEPTICALS (i[OiiDAY TE{ROUCF[ PRID:\Y) -- Trash P.ecepticals are. to be emptied daily. Chznge trash liners as necessary. OUTSIDE CA2tOPY WALKFIAY AND .DRIVEWAY (tIONDAY THROUGH TF.IDAY)_ -- Picl: up trash daily, sweep, and. hose down as needed, or as requested by Transit 1`[anagement. ' lIEG![-~NrCAL, AND SUPPLY_..ROO2SS (4IEEKLY) --- Sweep FJ_oors. ___ Damp mop and buff vinyl the floor in Supply F.oom. -- Glean utility sink in i•[echanical Room. - -Clean cold-air return grill located.on the outside wal7_ of Plechani.cal Room. --- I:eep the shelving in the SuppJ.y P,oom neat fi orderly. I-i r EKi.Y: -- Supervisor.*~ill monitor work and see that it is done to specification. A cocpliance checklist will be submitted to Transit itanagement bi-weekly. P[O;iTHLY - Flash out all 2[etal Trash F.ecepticles Liners (inside and outside) monthly or as requested b}' Transit 1•Iznagement. -- Clean all Ceiling Fan Blades. - -- Strip, reseal and wax vinyl rile floor located in Supply P.oom. ~-- Strip the Lobby and Restzoom Floors with a basic stripping compound; reseal with Buckeye Cirene polishing compound fi Excel floor finish or approved equal; and buff with a 1300 rpm. high speed buffer in order'to restore the finish. CLEfuiICiG •SEP,!`ICES ti01' RLQUIP.ED BY BIDDLR_ -- Bidd=r'will not be required to clean or maintzin Coin Changer P.oom located off from the Supply Room. Admittance into this area is restricted. !li.:~llSE+D ~~/91 paJ2. ; of 3 ~PLCIFICi~T,ID?.S' FO,R Jfu~LTO4Ii.L SEF.S'ICES TRtCiF$'IT TE'P.i•lLill.L (Continued)' SUPPLIES FUP~tISN.ED BY TEiE BIDDER_ - Cleaners; bowl cleaner; way remover and wa:c; dust nop; damp ©ops; brooms; buffer; furniture polish and any- thing else pertainins to cleaning, including plastic liners for trash containers. SUPPLIES CIOT TO BE FllRP1ISElED BY BIDDER: - - Unless directed by Transit tlanagement, bidder is not to furnish paper towels, toilet tissue, deodoranE blocks, or light bulbs:. , PP.ODUCT P.ESTRICTIONS: .__ ENDUST SS LiOT to be. used in this building. PROTJ___UCT P.EQUIILEt•CENTS FOR CERAi•IIC TILL CF~P.E ttAINTENAPICE:_ -- A general purpose cleaner. -- Buckeye Cirene Polishing Compound or appro~~ed eeual. - L:ccel Floor. Finish or approved equal. _- Franklin P.estore It or. approved equal. SECURITY iiOTE: - Eidder will be held responsible for securing all entrances. as well as disarming and xearr,ing the Building's L-lectronic Security/Fire Alarm System. QUt+LITX ASSUP.Ai1CE: -- ProPiding Transit'tianagementlwythwillabetorLequ~=emen.ts com Hance chec~;list, bi-wee.a ?nt. in m:eti.ng contract spc-cifica_tions and paym For additional information or an inspection of the facility, contact .~ 2(r. Ton KestraneY, at 953-8767. P.E~'IS~D 4/91 Page: 3. of 3 BID PROPOSAL PAGE BID OPENING DATE: June 11, 2008 Bid Proposal For: JANITORIAL SERV""ICE TRANSIT DEPARTMENT doing The undersigned __ business in the CityfCown of ' submits herewith, in eonfonnity with the General Instructions, Conditions, and Specifications for the following Bid: OUTLINE OF BID DATA: TTEM QUAN UONI DESCRIPTION UNIT COST' TOTAL COST I 36 MTH JANITORIAL SERVICE POR $ TRANSIT TERMINAL S 2 36 MTH JANITORIAL SERVICE F SERVICE CENTER $ Receipt of addenda is acknowledged: No. 1 Dated COMPANY' NAME SIGNATURE OF BIDDER (PRINT OR TYPE NAME) Received STREET' ADDRESS PO. BOX CITY STATE ZIP TITLE AREA CODE TELEPHONE NO. BID OPENING DATE: June 11, 2068 CITY OF PORT ARTIIUR INSTRUCTIONS TO BIDDER Bidders are requested to famish their complete REMIT TO ADDRESS and TAX IDENTIFICATION NUMBER as indicated below: REMIT PAYMENT TO: COMPANY" ADDRESS CITY/STATE!ZIP SEND PURCHASE ORDER T0: COMPANY ADDRESS CITY/STATE/Z1P TAX 1llENTIFICA'CION NUMBER r- . -~ , -~,:: ;:. AFFIDAVIT All pages in the offerer's bid proposal containing statements,`V~toters, etc., shall he signed by a duly authorized officer of the company, signature is binding on the bid proposal. The undersigred offers and agrees to one of the following I hereby certify that I do not have outstanding debts with the City of Port Arthur. Further, I agree to pay succeeding *'ebts as they become due during this agreement. 1 hereby certify that I do-have outstanding debts with the City of Port Arthur-and agree to pay said debts prior to execution of this agreement. I furthei agree to pay sueceeding debts as they become due. _ ' . I hereby certify that I do have outstanding debts with the City of Port Arthur and agree to enter into an agreement for the payment of said debts. I further agree to pay succeeding debts as they become due. NAME OF OFFERER TITLE ADDRESS __ _ CITY/STATE/ZlP TELEPHONE NUMBER SIGNATURE SUBSCRIBED AND SWORN to before me by the above named on this the day of , 20 Notary Public in and for the State of RETURN THIS AFFIDAVIT AS PART OF THE BID PROP05AY, CONTLICT OP INTEREST STATEMENT Please delineate all owners of your company. If you have any contractual business relationship or family relationship with any member of the governing body of the City or ifyou expect this to occur, please so stater Signature FEDERAL REQUIREMENTS PAGES 1-29 Federally Required Contract Clauses for Construction Services Contracts Ta6Ie of'Contents 1. Fly America Requirements 2. Buy America Requirements 3. Cargo Preference Requirements 4. Seismic Safety Requirements 5. Energy Conservation Requirements 6. Clean Water Requirements 7. Lobbying 8. Access to Records and Reports 9. Federal Changes 10. Bonding Requirements 11. Clean Air 12. Davis-Bacon Act 13. Conh'act Work Hours and Safety Standards Act 14. Copeland Anti-Kickback Act 15. No Government Obligation to Third Parties 16. Program Fraud and False or Fraudulent Statements and Related Acts 17. Termination- 18. Government-wide Debarment and Suspension (Non-procurement) 19. Privacy Act 20. Civil Rights Requirements 21. Breaches and Dispute Resolution 22. Disadvantaged Business Enterprises (DBE) 23. State and Local Law Disclaimer 24. Incorporation of Federal Transit Adnunistration (FTA) Terms Bidders are strongly advised to read and adhere to all signature and contractual requirements. Requirements are specifically outlined within this Contract Agreement. Failure to comply with all requirements could result in the Uid being rejected as nose-responsive. ,.n , 1' Federally Required Contract Clauses for Construction Services Contracts 2 1. FLY AMERICA REQUIREMENTS 49 USC § 40118 41 CFR Part 301-10 ApplicabIlity to Contracts 1'he Fly America requirements apply to the transportafron of persons or property, by air, between a place in the U.S. and a place outside the U.S., or between places outside the U.S., when the FTA will participate in the costs of such air transportation. Transportation on a foreign air carrier is permissible when provided by a foreign air carrier under a code share agreement when the ricket identifies the U.S. air carrier's designator code and flight number. Transportation by a foreign air carrier is also permissible if there is a bilateral or multilateral air transportation agreement to which the U.S. Government and a foreign government are parties and which the Federal DOT has determined meets the requirements of the Fly America Act. Flow Down Requirements , The Fly America requirements flow down from FTA recipients and subrecipients to first tier contractors, who are responsible for ensuring that lower tier contractors and subcontractors are in compliance. Model Clause/Language _ __.__. The relevant statutes and regulations do not mandate any specified clause or language. F"IA proposes the following language. Fly America Requirements -The Contractor agrees to comply with 49 USC § 40118 (the "Fly America' Act) in accordance with the General Services Administration's regulations at 41 CFR Part 301-10, which provide that recipients and subrecipients of Federal funds and their contractors are required to use U.S. Flag air carriers for U.S. Government-financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall subnut, ff a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall,ui any event, provide. a cerrificate of compliance with the Ply America requirements. The Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation. 2. BUY AMEP.ICA P.EQUIREMENTS 49 USC § 5323(j) 49 CFR Part 661 Applicability to Contracts The Buy America requirements apply to the following types of contracts: Construction Contracts and Acquisirion of Goods or Rolling Stock (valued at more than $7.00,000). Flow Down The Buy America requirements flow down from FTA recipients and subrecipients to first tier contractors, who are responsible for ensuring that lower tier contractors and subcontractors are incompliance. 08/09/01 .., a ` ,.. r;"~r. 3. Federally Required Contract Clauses-for Construction ServicesContracts Mandatory Clause/Language The Buy America regulation, at 49 CFR § 66L13, requires notification of the Bu;~ America requirements in FTA-funded contracts, but does not specify the language to be used. The following language has been developed b}' FTA. buy America -The. contractor agrees to comply with 49 USC § 5323(j) and 49 CFR Part 661, which provide that Federal funds may not be obligated unless. steel, iron, and manufactured products used in FTA-funded projects are produced in the United States, unless a waiver has been gaanted by FTA or the product is subject to a general waiver. General waivers are listed in 49 CFR § 661.7, and include final assembly in the United States for 15 passenger vans and 15 passenger wagons.produced by Chrysler Corporation, microcomputer-equipment, software, and small purchases (currently less than 5100,000) made with capital, operating, or planning funds. Separate requirements for rolling stock are set out at 5323(j)(2)(C) and 49 CFR § 661.11. Rolling stock not. subject to a general waiver must be manufactured in the United States and have a.60 FercenYdomestic Content. A bidder or offeror mustsubmit to the FTA recipient the appropriate Buy America certification (below) with all bids on FTA-funded contacts, except those subject to a general waiver..Bids or offers that are not accompanied by a completed Buy America certification must be rejected as non-responsive. This requirement does not apply to lower tier subcohtractors. Certification requirement for procurement of steel, iron, or manufactured products. Certificnte of Compiinnce uiith 49 USC § 5323(j)(1) The bidder or offeror hereby certifies that it will meet the requirements of 49 USC § 5323(j)(1) and the applicable regulations in 49 CFR Put 661. Date Signature Company Name Title Certifiente of Non-Cornplinnce iuith 49 LISC § 5323(j)(1) The bidder or offeror hereby certifies that it cannot comply with the requiremBntosrof 4~ UDSC nd 53_3 1 ,bunt may qualify for an exception pursuant to 49 USC § 53_3 . O (1)( )( the regulations in 49 CFP. § 661.7. Date Signature Company Name OS/09/01,.; Federally Required Contract Clauses for Consfruction Services Contracts 4 Title Certification requirement for procurement of buses, other rolling stock and associated equipment. Certifirnte of Conipiimice 7vitli 49 USC § 5323(j)(2)(C). The bidder or offeror hereby certifies that it will comply with the requirements of 49 USC § 5323(j)(2)(C) and the regulations at 49 CFR Part 661. Date Signahue Company Name Title Certifrcate of Non-Coiuptinnce Tvitk 49 USC § 5323(j)(2)(C) The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 USC ~ 5323(j)(2)(C), but may qualify for an exception pursuant to 49 USC ~ 5323(j)(2)(B) or (j)(2)(D) and the regulations in 49 CFR § 661.7. Date Signature Company Name Title 3. CAP.GO PP~EPERENCE REQUIP.EivIEN'FS 46 USC ~ 1241 46 CFR Part 381 Applicability to Contracts The Cargo Preference requirements apply to all contracts involving equipment, materials, or commodities that may be transported by ocean vessels. Flow Down The Cargo Preference requirements apply to all subcontracts when the subcontractm?y be involved with the transport of equipment, material, or commodities by ocean vessel. Model Clause/ Language The NIAP.AD regulations at 46 CFR § 381.7 contain suggested contract clauses. The following language is proffered by FTA. 08/09/01' Federally Required Contract Clauses for Construction Services Contracts 5' Cargo Preference -Use of United States-Flag Vessels -The contractoragrees: a. to use privately owned United States-Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States-Flag commercial vessels; b. to furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 working days following the date of leading for shipments originating outside the United States, a legible copy of a rated, "on-board" commercial ocean bill-of -lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Adrnirustration, Washington, DC 20590 and to the FTA recipient (through the contractor in the case of a subconhactor's bill-of-lading.) c. to include these requirements in all subcontracts issued pursuant to this contract when the subcontract may involve the transport of equipment, material, or conunodities by ocean vessel. 4. SEISMIC SAFETY REQUIREMENTS 42 USC § 7701 et seq. 49 CFR Part 41 Apphcability to Conhacts The Seismic Safet}'requirements apply only to contracts for the construction of new buildings or additions to existing buildings. Flow Down The Seismic Safety requirements flow down from FTA recipients and subrecipients to first tier conriactois to assure compliance, with the applicable building standards for Seismic Safety, including the work performed by all subcontractors. Model Clauses/Lang age The regulations do not provide suggested language for third-party conri'act clauses. The following language has been developed by PTA. Seismic Safety -The contractor agrees that any new building or addition to an existing building will be designed and cons.hucted in accordance with the standards for Seismic Safety required in Department of Transportation Seismic Safety Regulations 49 CFR Part 4'1 and will certify to compliance to the extent required by the regulation. The contractor also agrees to ensure that all work performed under this contract v~chiding work yeriormed by a subcontractor rs in compliance with the standards required by the Seismic Safety Regulations and the certification of compliance issued on the project. 5. ENEP~GY CONSERVATION P.EQUIREMENTS 42 USC § 6321 et seq. 49 CFR Part 1S.% Applicability to Contracts The Energy Conservation requirements are applicable to all contrracts. Yn , os/o9/ol ' ,.:, ~:~._ Federally Required Contract Clauses for Construction ServicesContracts 6, Flow Down The Energy Conservation requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subagreements at ever}' tier. Model. Clause/Language No specific clause is recommended in the regulations because the Energy Conservation. requirements are so dependent on the state energyconservationplan. The following language has been developed by FTA. Energy Conservation - The conhactor 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. 6. CLEAN WATER P.EQUIREMENTS 33 USC § 1251_ _ Applicability to Contracts The Clean Water requirements apply to each conh'act and subcontract which exceeds $100,000. Flow Down - - - ...__ -- --- _.... The Clean Water requirements flow down to FTA recipients and subrecipients at every her. Model Clause/ Language While no mandatory clause is contained in the Federal Water Pollution Conhol 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 USC 6 1251 et seq. The Contractor agrees to report each violahon 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 Regiona; Office. (2) The Contractor also agrees to include these requirements in each subconhact exceeding $100,000 financed in whole or in put with Federal assistance provided by FTA. 7. LOBBYING 31 USC § 1352 49 CFR Part 19 49 CFl2 Part 20 Applicability to Contracts. The Lobbying requirements apply to Construction/Architechual and Engineering/Acquisition of Polling Stock"lProfessional Service Contract/Operational Service Contact/Turnkey contracts. Flow Down 08/09/01. .~_. !- -:z;. .. Federally Required Contract Clauses for Construcflon Services Contracts. The Lobbying requirements mandate the maximum flow down, pursuantto Byrd Anti- Lobbying Amendment, 31 USC § 13~2(b)(5) and 49 CFR Part 19, Appendix A, Section 7. Mandatory Clause/Language - Clay-ise 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, PL 104-65 [to be codified at 2 USC § 1601, et seri.] - Lobbying Certification and Disclosure of Lobbying Activities for third part}' conh~actors are mandated by 31 USC § 1352(b) (S), as amended by Section 10 of the Lobbying Disclosure Act of 1995, and DOT implementing regulation, "New Restrictions on Lobbying," at 49 CPR § 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 Actvites;' Standard Form-LLL set forth in Appendix B of 49 CFP~ Part 20, as amended by "Government wide Guidance For New Restrictions on Lobbying, 61 Fed. P.eg.1413 (1/19/96) is mandated by 49 CFR Part 20, Appendix A. Byrd Anti-Lobbying Amendment, 31 USC § 1352, as amended by the Lobbying Disclosure Act of 1995, PL 104-65 [to be codified at 2 USC § 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 an}' agency, a member of Congress, officer or employee of Congress, or an emplo}'ee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 USC § 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 USC § 1352. Such disclosures are forwarded from tier to ter up to the recipient. APPENDIX A, 49 CFR Part 20--CERTII?IC ATION REGARDING LOBBYING Certification for Conhacts, Grants, Loans, and Cooperative Agreements (To he s<<bmitted with ench bid or offer exceeding $100,000) The undersio ted [Canh~actor] certifies, to the best of ]us or her knowledge and belief, that: (1) i~~o Federal appropriated funds have been paid or will be paid, by or onbehalf 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 ,. _ 'i'.. 08/09/01 ~.. - °:~ -r 'T ~.~r^t e. K .: r.1M.n3.Y~3: _p. ... i:a...--. u. .,8. Federally Required Contract Clauses for Construction Services Contracts Member of Congress n 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 anv 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 Viember of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complzte and submit Standard Ferm--LLL, "Disclosure Form to Report Lobbying;' in ~~ accordance with its inshuctions [as amended by Government wide Guidance for New P~estrictions 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 (PL 104-65, to be codified at 2 USC ~ 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 Eact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerzquisite for making or entering into this transaction imposed by 31, USC ~ 1352 (as amended by the Bubb c~ to a~civil per alty'toffnot les shah $10,000 and not mo~e than $100,000 forlelach such all be failure. [Note: Pursuant to 31 USC ~ 1352(c)(1)-(2)(A), any person who makes a prohibited expenditure penaltytof notoless tthan $10 000 and notrmo e than $100 000 fooreadhsnd expenditure or it failure.] The Contractor, _, certifies or affirms the tYUthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 USC ~ A 3801, et seq., npply to this certification and disclosure, if any. Signature of Contractor's Authorized Official Name and Title. of Contractor's Authorized Official Date 8. ACCESS TO P~ECOP~DS AND REPORTS 49 USC ~ 5325 , 18 CFR ~ 18::16 (i) 49 CFR ~ 633.17 Applicability to Contracts 08/09/01:. Federally Required Contract Clauses for Construction Services Contracts P.eference Chart "Requirements for Access to Records and Reports by Type of Contracts" Flow Down FT.4 does not require Pne 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 P.ecipient in accordance with 49 C. F. R. 18.36(1), 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 Contractorwhich are directly pertinent to this contract far the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Adminishator 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 USC-§ 5302(x)1, which is receiving federal financial assistance through the programs described at 49 USC § 5307, 5309 or 5311. 2. Where the Purchaser is a State and is the FTA Pecipient or a subgrantee of the FTA Recipient in accordance with 49 CFR § 633.17, Conti actor 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 USC § 5302(x)1, which is receiving federal financial assistance through the programs described at 49 USC § 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. 1Nhere the Purchaser enters into a negotiated contract for other than a small purchase or under the simplified acquisition threshold and is an institution of higher education, a hospital or other non-profit organization and is the FTA Recipient or a subgrx~itee oI the FTA Recipient in accordance with 49 CFR § 19.48, Contractor agrees to.provide the Purchaser, FTA Admvristrator, 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 contact for the purposes of nicking audits, exannations, excerpts and transcriptions. 4. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 USC § 5325(x) enters into a contract for a capital project or improvement (defined at 49 USC § 5302(x)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 Comptrolle,: General or any authorized officer or employee of any of them for the purposes of conducting an audit and uzspection. 5. The Conhactor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. ai:. , ,~ 08/09/01' .. Federally Required Contract Clauses for Construction Services Contracts 10 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 conh'act, in which case Contractor agrees to maintain same until the Purchaser, the FTA P.dminishator, 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(1)(11). 7. FTA' does not require the inclusion of these requirements in subcontracts. Requirements for Access to Records and Reports by Types of Contract Contact Operatio Turnkey Con'structi ; Architectu Acquisitio Profession. on ral n of a1:Services Characterish ml cs Service , Engineeri Rolling r,,,.:k~~t `. ng Stock.. - I State Grantees ~. None a. Contracts below SAT None (5100,000) ''. unlesst ' non- b. Contracts ! competiti above ve award $100,000/Ca j '. pital Projects II Non State Grantees ~ Yes3 a. Contracts below SAT (5100,000) b. Contracts above $100,000/Ca pital Projects Yes3 Sources of Authority: 149 USC § 5325 (a) a 49 CFR ~ 633.17 318 CFR ~ 1$.36 (i) Those None ' ; None imposed on state pass thru to Yes, iE '. None Conhactor non- ;unless competiliv 's non- e award or ' competitiv if funded ': e award tluu'- 5307/5309 /5311 Those imposed on Yes 'Yes non-state Grantee Yes i Yes pass thru to Conti actor 9. FEDERAL CHANGES 49 CFR Part 18 None ~ None None " None unless ' unless non- non- competitiv ` competitiv e award e award Yes '~ Yes Yes Yes ' ,,, Federally Required Contract Clauses for Construction Services Contracts 11 Applicability to Contracts The Federal Changes requirement applies to all contracts. Flow Down The Federal Changes requirement flows doevn 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 linvtation those listed directly or by reference in the Agreement (Form FTA IviA (6) dated October; 1999) between Purchaser and FTA , as they maybe 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 10. BONDING REQUIREMENTS Applicabffity to Contracts - For those construction or facility improvement contracts or subcontracts exceeding $100,000, FTA may accept the bonding policy and requirements of the recipient; provided that they meet the minimum requirements for construction contracts as follows: a. A bid iniarantee fnom each bidder equivalent to five (5) percent oI the bid price. The "bid guarantees" shell consist of a firm coirunitment such as a bid bond, certifies check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of his bid, execute such contractual documents as maybe required within the time specified. b.,A performance bond on the part to the Conhactor for 100 percent of dre contract price. A "performance bond" fs one executed in connection with a contract to secure fulfillment of all the contractor's obligations under such contract. c. A payment bond on the part of the contractor for 100 percent of the contract price. A "payment bond" is one executed in connection with a contract to assure payment, as required by law, of all persons supplying labor and material in the executron of the work provided for in the contract. Payment bond amounts required from Contractors are as follows: (1) 50% of the contract price if the contYact price is not more than $1 million; (2) 40% of the contract price if the conh'act price is more than $1 million but not more than $5 million; or (3) $?.5 million if the conhact puce is more than $5 million. d. A cash deposit, certified check or other negotiable instrument may be accepted by a grantee in lieu of performance and payment bonds, provided the grantee has established a procedure. to 08/09/01 Federally Required Contract Clauses for Constucton Services Contracts 12' assure that the interest of FTA is adequately protected. An irrevocable letter of credit would also satisfy the requirement for a bond. Flow Down Bonding requirements flow down to the first tier contractors. Model Clauses/Language FTA dues not prescribe specific wording to be included in third party contrails. FTA has prepared sample clauses as follows: _ Bid Bond Requirements (Construction ) U (a) Bid Security A Bid-Bond must be issued by a fully qualified surety company acceptable to City of Port Arthur and listed as a company currently authorized under 31 CFR ~, Part 223 as possessi b-a Certificate of Authority as described thereunder. (b) Rights Reserved ----- -- In submitting this Bid, it is understood and agreed by bidder that the right is reserved by City of Port Arthur to reject any and all bids, or part of any bid, and. it is agreed that the Bid may not be withdrawn for a period of [ninety (90)] days subsequent to the opening of bids, without the written consent of City of Port Arthur. It is also understood and agreed that if the undersigned bidder should withdraw any part or all of his bid within [ninety (90)] days after the bid openiz_g without the written consent of City of Port Arthur, shall refuse or be unable to enter into this Contract, as provided above, or refuse or be unable to furnish adequate and acceptable Performance Bonds and Labor and Material Payments Bonds, as provided above, or refuse or be unable to furnish adequate and acceptable insurance, as provided above, he shall forfeit his bid security to the extent of (Recipient's) damages occasioned by such withdrawal, or refusal, or inability to enter into an agreement, or provide adequate security therefor. It is further understood and agreed that to the extent the defaulting bidder's Bid Bond, Certified Check, Cashier's Check, Treasurer's Check, and/or Official Bank Check (excluding any income generated thereby which has been retained by City of Port Arthur provided in [Item x "Bid Security of the Instructions to Bidders)) shall prove inadequate to fully recompense City of Port Arthur for the damages occasioned by default, then the undersigned bidder agrees to indemnify City of Port Arthur and pay over to City of Port Arthur the difference between the bid security and (Recipient's) total damages; so as to make City of Port Arthur whole. The undersigned understands that any material alteration of any of the above or any of the material contained on this form, other than that requested, ~,vill render the bid unresponsive. Performance and Payment Bonding P~equirements (Constuction) 08/09/01 13 Federally. Required Contract Clauses for Construction Services Contracts The Contractor shall be required to obtain performance and payment bonds as follows: (a) Performance bonds 1. The penal amount of performance bonds shall be 100 percent of the original contract pace, unless the City of Port Arthur determines that a lesser amount would be adequate for the protection of the City of Port Arthur 2 The City of Port Arthur may require additional performance bond protection when a contract price is increased. The increase in protection shall generally equa1100 percent of the increase in contract price. The City of Port Arthur may secure additional protection by directing the Contractor to :rcrease the penal amount of the existing bond or to obtain an additional bond. (b) Payment bonds 1. The penal amount of the payment bonds shall equal:. ____ (i) Fifty percent of the conh~act price if the contract price is not more than $1 million. (ii) Forty percent of the contract price if the contract price is more than $1 million but not more than $~ million; or (iii) Tv`~o and one half million if the contract price is more than ~ million. 2. IE the original contract price is $5 nullion or less, the City of Port Arthur may requrre additional protection as required by subparagraph 1 if the contract price is increased. Performance and Payment Bonding Requirements (Non-Construction) The Contractor may be required to obtain performance and payment bonds when necessary to protect the (Recipient's) interest. (a) The following situations may warrant a perfrn'm?nce bond: 1. City of Port Arthur property or funds are to Ue provided to the contractor for use rn performing the conhactor as partial compensation (as in retention of salvaged material). 2. A contractor sells assets to or merges with another concern, and the City of Port Arthur, after recognizing the latter concern as the successor in interest, desires assurance that it is financially capable. , 3. Substantial progress payments are made before delivery oPend items starts. 4. Contracts are for dismantling, demolition, or removal of improvements. (b) When it is determined that a performance bond is required, the Contractor shall be required to obtain performance bonds as follows: 08/09'/01 i. .. Federally Required Contract Clauses for Construction Services Contracts 1~ 1. The penal amount of performance bonds shall be 100 percent of the original contract price, unless the City of Port Arthur determines that a lesser amount would be adequate for the protection of the City of Port Arthur 2. The Cily of Port Arthur may require additional performance bond protection when a contract price is increased. The increase in protection shall generally equa1100 percent of the increase in contract price. The City of Port Arthur may secure additional protection by directing the Contractor to increase the penal amount of the existing bond or to obtain an additional bond. (c) A payment bond is required only when a performance bond is required, and it the use of payment bond is in the (Recipient's) interest. (d) When it is determined that a payment bond is required, the Contractor shall be required to . obtain payment bonds as follows: The penal amomrt of payment bonds shall equal: (i) Fifty percent of the conhact price if the contract price is not more than $1 million; --.--. (ii) Forty percent of the conhact price if the contract price is more than $1 million but not more than $5 million; or (iii) Two and one half million if the contract price is increased. Advance Payment Bonding Requirements The Conhactor may be required to obtain an advance payment bond if the contract contains an advance payment provision and a performance bond is not furnished. The City of Port Arthur shall determine the amount of the advance payment bond necessary to protect the City of Port Arthur Patent Infringement Bonding Requirements (Patent Indemnity) The Contractor maybe required to obtain a patent indemnity bond if a performance bond is not furnished and the financial responsibility of the Contractor is unknown or doubtful. The City of Port Arthur shall deterrnine the amount of the patent indemnity to protect the City of Port Arthur Warranty of the Work and Maintenance Bonds 1. The Contractor wan ants to City of Port Arthur, the Architect and/or Engineer that all materials and equipment furnished under this Conhact will be of highest quality and ne~v unless otherwise specifiedUy City of Port Arthur, free from faults and defects and in conformance with the Contract Documents. All work not so conforming to these standards shall be considered defective. If required by the (Project Manager], the Contactor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. 08/09/01 G+. r= >., 15 Federally Required Contract Clauses for Construction Services Contracts 1 The Work furnished must be of first quality and the workmanship must be the best obtainable in the various trades. The Work must be of safe, substantial and durable construction in all respects. The Contractor hereby guarantees the Work against defective materials or faulty workmanship for a minimum period of one (1) year after Final Payment by City of Port Arthur and shall replace or repair any defective materials or equipment or faulty workmanship du ing the period of the guarantee at no cost to Citv of Port Arthur As additional security Eor these guarantees, the Contractor shall, prior to the release of Final Payment [as provided in Item X below), furnish separate Maintenance (or Guarantee) Bonds inform acceptable to City of Port Arthu written by the same corporate surety thatprovides the Performance Bond and Labor and Material Payment Bond for this Contract. These bonds shall secure the Contractor's obligarion to replace or repair defective materials and fault; workmanship for a minimum period of one (1) year after Final Payment and shall be written in an amount equal to ONE HUNDRED PERCENT (100%) of the CONTRACT SUM, as adjusted (if at all). 11. CLEAN A4P. 42 USC ~ 7401 et seq. 40CFR~15.61 49 CFP. 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 that 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 USC ~ 7401 et seq.. The Conh'actor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in hun, 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 i1 part with Federal assistance provided by FTA. 12. DAMS-BACON ACT 40 USC § &167; 276x -276a-5 (1995) 29 CFR § 5 (1995) Applicability to-Conhact Conshucfiori conhacts over $2,000.00 Flow Down Applies to third party contractors and subcontractors OS/09/01 Federally Required Contract Clauses for Construction Services Contracts 16 Model Clause/ Language (The language in this clause is mandated under the DOL regulations at 29 CFR ~ 5.5.) (1) Minimum wages - (i) All laborers and mechanics employed or working upon the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFP. Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of. Labor wluch is attached hereto and made a part hereof, regardless of any contractual-relationship which may Ue alleged to exist beriveen the contractor and such laborers and mechanics. Contributions_-made or Costs reasonably anticipated forbona fide fringe.benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular conhibutions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR Part 5.5(a) (4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work Ss performed. The wage determination and the Davis-Bacon poster (WH-1321) shall be posted at all times by the contractor and its subcontractors at the site of the work u1 a prominent and accessible place where it can be easily seen by the workers. (ii) Whenever the minimum wage rate prescribed iri the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (iii) If the conhactor does not make payments to a hustee or other Hurd person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the conhactor to set aside in a separate account assets for the meeting of obligations under the plan or program. (iv)(A) Tlie contracting officer shall require that any class of laborers or mechanics which is not listed in the wage deternunation and in~hich is to be employed under the contract shall Ue classified in conformance wide the wage determination. The conhactutg officer shall approve an 08/09/01 17 Federally Required Contract Clauses for ConstuctionServices Contracts additional classification and wage fate and fringe benefits therefor only when the following criteria have been met: (1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the area by the construction industry, and (3).The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the cons-racting officer to the Administrator of the Wage and I-Iour Division, Employment Standards Administration, Washington, DC 20210. The Administator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contacting officer within the 30-day period that additional time is necessary. (C) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administator for determination. The Administrator, or an authorized representative, will issue a determination with 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30- day period that additional time is necessary. (D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (1)(iv) (B) or (C) of this section, shall be paid to all workers performing work in the classification underthis contract from the first day on which work is performed in the classification. (2) Withholding -The [insert name of grantee ]shall upon its awn action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the contactor under this contract or any other Federal contact with the same prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work (or under'the United States Housing Act of 1937 or under the Housing Act of 1949 in the constuction or development of the project), all or part of the wages required by the contact, the [insert name of grantee ]may, after written notice to the contactor, sponsor, applicant, or 08/09/01. ~• 3... Federally Required Contract Clauses for Construction Services Contracts 18~.. owner, take such action as maybe necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. (3) Payrolls and basic records - (i) Payrolls and basic records relating.thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the consh'uction or development of the pioject). Such records shall contain the nan1e, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of hhe types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR § 5.5(a)(1)(iv) that the wages of any laborer or .mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable;-drat the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and.records which-show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprenfices or trainees under approved programs shall maintainwritten evidence of the regisriation of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii)(A) The conriactor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the [insert name of grantee ]for transmission to the Federal Transit Adminishation. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR Part 5. This information maybe submitted in any farm desired: Optional Form WH-347 fs available for this purpose and maybe purchased from the Superintendent of Documents (Federal Stock Number 029-005-00014-1), U.S. Government Printing Office, Washington, DC 20402. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. (B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed Uy the contractor or subconriactor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: (1) That the payroll for the payroll period contains the information required to be maintained under 29 CFR Part 5 and that such information is correct and complete; (2) That each laborer or mechanic (including each helper, apprentice, and tainee) employed on the contact during the payroll period has been paid the full weekly wages earned, without rebate, either dire~ily or indirectly, and that no deductions have been made either du'ectly or indirectly hom Elre full wages earned, other than permissible deductions as set forth in P.egulations, 29 CFR Part 3; (3) That each laborer or mechanic has been paid not less than the applicable wage rates and '~.. ;' R 4 OS/09/01 W - - 19 Federally Required Contract Clauses for Constucton Services Contracts fringe benefits or cash equivalents for the classificatoni of work performed, as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form 4VH-347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph (3)(ii)(B) of this secfion. (D) The falsification of any of the above certifications may subject die contactor or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code. (iii) The contactor or subcontractor shall make the records required under paragraph (3)(i) of this section available for inspection, copying, or tanscripton by authorized representatives of the Federal Transit Administaton or the Department of Labor, and shall permit such representatves to interview employees during working hours on the job. If the contactor or subcontractor=fails to submit the required records or to make them available, the Federal agency may, after written notce to the contactor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to_29._CFR ~ 5.12. (4) Apprentces and trainees - (i) Apprentces -Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Adnrinistaton, Bureau of Apprentceship and Training, or with a State Apprentceship Agency recognized by the Bureau, or if a person rs employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable rato of apprentces to journeymen on the job site in any craft classificaton shall not be greater than the ratio. permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, which is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the rato permitted under the registered program shallbe paid not less than the applicable wage rate on the wage determinaton for the work actually performed. Where a contractor is performing constucton on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the conhactor's or subconhactor's registered program shallbe observed. Every apprentce must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shallbe paid fringe benefits in accordance with the provisions of the apprentceship program. If the apprentceship program does not specify fringe benefits, apprentces must be paid the.full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator of the Wage and Hour Division of the U.S. 08/09/01 20 Federally Required Contract Clauses for Corvstruction Services Contracts Department of Labor determines that a different practice prevails forthe applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, or a State Apprenticeship Agency recognized by the Bureau, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (ii) Trainees - Except as provided in 29 CFR § 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed mrless they are employed pursuant to and individually reo stered ih a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than perm=fled under the plan approved by the Employment and Training Adnunishation. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of die trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division deternunes that there is an apprenticeship program associated with the corresponding journeyman wage rate.on_the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a hainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal employment opportunity -The utilization of apprentices, trainees and journeymen under this part shall be in confornuty with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30. (5) Compliance with Copeland Act requirements -The contractor shall comply with the requirements of 29 CFR Part 3, which are incorporated by reference in this contract. (6) Subcontracts -The contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR § 5.5(a)(1) through (10) and such other clauses as the Federal Transit Administration may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime. contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR ~ 5.5. 08/09/01 ::%~'.. Federally Required Contract Clauses for Construction Services Contracts 21 (7) Conh'act termu~ahon: debarment - A breach of the contract clauses in 29 CFR § 5S may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided ur 29 CFR § 5.12. (8) Compliance with Davis-Bacon and Related Act requirements -All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract. (9) Disputes concerning labor standards -Disputes arising out of the labor standards provisions of this"contract shall not be subject to the general disputes clause of this contract Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth u129 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. (10) Certification of eligibility - (i) By entering into this contract, the contractor certifies that--. neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or.29 CFR § 5.12(x) (1). (ii) No part of this contact shall be subcontracted to any person or firm ineligible for award of a Government contract by virhie of section 3(a) of the Davis-Bacon Act or 29 CFR 6 5.12(x)(1). (iii) The penalty for making false statements is prescribed in the U.S. Q'iminal Code,18 USC § 1001. 13. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT 40 USC § 327 -333 (1995) 29 CFR § 5 (1995) 29 CFR § 1926 (1995) Applicabffity to Contracts Section 102 of the Act, which deals with overtime requirements, applies to: - all construction contracts ur excess of $2,000 and; - all turnkey, rolling stock and operational contracts (excluding contracts for hansportation services) in excess of $2,500. (The dollar threshold for this requirement is contained in the current regulation 29 CFP. § 5.15.) Section 107 of the Act that deals with OSHA requirements applies to conshuction conhacts in excess of S2,000 only. The requirements of this secrion do not apply to contracts or subcontracts for the purchase of supplies or materials or articles normally available on the open market. Flow Down / Applies to third party contactors and subconhactors. 08/09/01'. Federally Required Contract Clauses for Construction Services Contracts. 22 Ntodel Clauses/Language Pursuant to Section ] 02 (Overtime): ( These clauses are specifically mandated under DOL regulation 29 CFR ~ 5.5 and when preparing a construction conhact in excess of $2,000 these clauses should be used in conjunction with the Davis-Bacon Act clauses as discussed previously. For nonconshuction contracts, this is the only section required along with the payroll section.) (1) Overtime requirements - No contractor or subcontractor contracting Eor an}' 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 ir, 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 Eorty hours in such workweek. (2).Violation; liability for unpaid wages; liquidated damages - In the event of any vio]atiorL4L the clause set forth in paragraph (1) of tlus section the contractor and any subconhractor responsible therefor shall be liable for the unpaid wages. Lr addition, such contractor and subconractor 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 S 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 or recipient) 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 subconriactor under any such contract or any other Federal contract with the same prime conri~actor, or any other federally- assisted conk act subject to the Conhact 41'ork Hours and Safety Standards Act, which is held by the same prime conhactox, such sums as maybe determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section. (4) Subcontracts -The contractor or subcontractor shall insert in any subcontracts the clauses set forth in this section and also a clause requiring the subcontractors to include these louses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower rier subcontactor with the clauses set forth in this section. (Section 102 nonconshuction contracts should also have the following provision:) (5) Payrolls and basic records - (i) Payrolls and basic records relating thereto shall be maintained by t11e cont'aetor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or tinder the United States Housing Act of 1937, or under-the Housing Act of 1949, in the constuction or development of the project). Such records shall contain the name, address, and socialsecririty 08/09/01 y ., °,:: - Federally. Required Contract Clauses for Construction Services Contracts 23 number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretar;r of Labor has found under 29 CFR § 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonabl;~ anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commihnent to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain writter, evidence of the registration of apprenticeship programs and certification of trainee programs, the registrafion of the apprentices and trainees; and the ratios and wage rates prescribed in the applicable programs ~ _ Section 107 (OSHA): (This section is applicable to conshuction conhacts,only) Contract Work Hours and Safety Standards Act - (i) The Contractor agrees to comply with section 107 of the Contract t Wak Hours and Safety Standards Act, 40 USC ~ section 333, and applicable DOL regulations, "Safety and Health Regulations for Construction " 29 CFR Part 1926. Among other things, the Contractor agrees that it will not require any laborer or mechanic to work in unsanitary, hazardous, or dangerous surroundings or working conditions. (ii)Subcontracts -The Contractor also agrees to include the requirements of this section in each subcontract. The term "subcontract" under this section is considered to refer to a person who agrees to perform any part of the labor or material.requirements of a conhact for construction, alteration or repair. A person who undertakes to perform a portion of a contract involving the furnishing of supplies or materials will be considered a "subcontractor" under this section if the work in question involves the performance of construction work and is to be performed: (1) directly an or near the construction site, or (2) by the employer for the specific project on a customized basis. Thus, a supplier of materials which will become an integral part of the construcrion is a "subcontractor" iE the supplier fabricates or assembles the goods or materials in question specifically for the consruction project and the work involved may be said to be, construction activity. If the goods or materials in question are ordinarily sold to other customers from regular inventory, the supplier is not a "subcontractor." The requirements of this section do not apply to contracts or subcontracts for the purchase of supplies or materials or articles normally available on the open market. 14. COPELAND ANTI-KICKBACK ACT 40 USC ~ 276c (19-95) 29 CFR § 3 (1995) 29 CFR g 5 (1995) Applicability to Contracts a . -. 03/09/01';' .,; ; °_ `. .t~-. Federally Required CbntractClauses for Construction Services Contracts 24 All construction contracts in excess of 52,000. Flow Down Applicable to all third parb/ contactors and subcontractors. Model Clauses/ Language 3.1 of the Copeland Act makes it clear tha t the purpose of the Act is to assist in "the eiti`orcement of the minimum wage provisions of the Davis- Bacon Act." In keeping with this intent DOL has included a section on the Copeland Act in the mandatory land rage of the Davis-Bacon provisions. The language can be found at fi 5.5(a)(5) of the Davis-Bacon model clauses and reads as follows: . Compliance with Copeland Act requirements -The contractor shall comply with the requirements of 29 CFRPart 3, which are incorporated by reference in this contact. Since there is no specific statutory or regulatory requirements for additional mandatory language, I would recommend that no additional clauses are necessary for this provision. __-- 15. 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 arid agree that, nottivithstanding any concurrence by the Federal Government in or approval of the solicitation or award oI the underlying. contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contact and shall not be subject to any obligations or liabilities to the Purchaser, Contactor, or any other party (whether or not a party to that conh~act) pertaining to any matter resulting from the underlying contact. (2) The Contactor agrees to inchrde the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. 16. PROGP.AM FP~AUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS 31 USC ~ 3801-et seq. 49 CFR Part 3118 USC ~ 1001 49 USC ~ 5307 08/09/01..'" Federally Required Contract Clauses for Construction Services Contracts 25 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 1.956; as amended, 31 USC § 3801 et seq.. and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 CFR Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying caatract, the Contractor certifies or affirms the truthfulness and accuracy of any- statement ithas made, it makes, it may make, or causes to be made, pertaining to the underlying contractor the FTA assisted project for which this conhact work is being performed. In addition to other penalties that maybe applicable,-the Contractor further acknowledges that if it makes or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. (2) The Conh~actor also acknowledges that if itmakes, or causes to be made, a false, fictitious, or h audulent claim, statement, submission, or certification to the Federal Government under a conhact connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 USC § 5307, the Government reserves the right to impose the penalties of 18 USC § 1001 and 49 USC § 5307(n)(1) on the Conh'actor, 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 fm'ther agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. 17: TERMINATION 49 USC Part 18 FTA Circular 4220:1D Applicability to Contracts All contracts (with the exception of contracts with nonprofit organizations and instihttions of higher education,) in excess of $10,000 shall contain suitable provisions for termrnation by the grantee including the manner by which it will be effected and the basis for settlement. (For contracts with nonprofit organizations and instihitions of higher education the threshold is $100,000.) In addition, such contracts shall describe conditions under which the contract maybe terminated for default as well as conditions where the conhact may Ue ternnated because of circumstances beyond the control of the contractor. 08/09/01: „; t ~. .,: ~ 5 a>. - .. Federally Required Contract Clauses for Construction Services Contracts 26 Flow Down The termination requirements flow down to all contracts in excess of $10,000, wide the exception of contracts with nonprofit organizations and institutions of higher learning. Model Clause/Language oestions of FTA does not presa'ibe the form or content of such clauses. The following are sugb clauses to be used indifferent hjpes of contracts: a. Termination for Convenience (General Provision) The City of Port Arthur may terminate this contract, in whole or in part, at any time by written notice to the Contractor ~~'l~~en it is in the Government's best interest. The Contactor shall be paid its costs, including contract closeout costs, and profit on work performed up to the time of termination. The Conhactor shall promptly submit its termination claim to City of Port Arthur ao be paid the Conhactor. If the Contractor has any property in its possession belonging to the City of Port Arthur, the Contractor will account for the same, and dispose of it in-the manner the City of Port Arthur- directs. b. Termination for Default (Breach or Cause] (General Provision) IE the Contractor does not delivei supplies in accordance with the contract delivery schedule, or, if the contract is for services, the Contractor falls to perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, the City of Port Arthur 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 Conhactor is in default. The contractor will only be paid the contract price for supplies delivered and accepted, or servues performed in accordance with the maruzer of performance set forth in the contract. If it is later determined by the City of Port Arthur that the Contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the control of the Contractor, the City of fort Arthur, after setting up a new delivery of performance schedule, may allow the Contractor to continue work, or heat the ternnation as a termination for convenience. c. Opportunity to Cure (General Yrovision) The City of Port Arthur in its sole discretion may, in the case of a termination for breach or default, allow the Conhactor [an appropriately short period of time] in which to cm e the defect. h1 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 City of Port Arthur's satisfaction the breach or default or any of the teens, covenants, or conditions of this Contract within [ten (10) days] after.receipt by Conhactor or written notice from City of Port Arthur setting forth the nature of said breach or default, City of Port Arthur shall have the right to terminate the Contract without any further obligation to Contractor. Any such termination for default shall not m any way operate to preclude City-of Port Arthur_ from also pursuing all available remedies against Conhactor and its sureties for said breach or default. oL t OS/09/01 f.=`. ,~_ ~;_ :z ._ •`'+ at. 27 :Federally Required Contract Clauses for Construction Services Contracts d. 4ti aiver of Remedies for any Breach In the event that City of Port Arthur elects to waive its remedies foe any breach by Contactor of any covenant, term or condition of this Contract, such waiver by City of Port Arthur shall not limit City of Port Arthur's remedies for any succeeding breach of that or of any other teen, covenant, or condition of this Contract. e. Termination for Convenience (Professional or Transit Service Contracts) The City of Port Arthur, by written nonce, may terminate this contract, in whole or in part, when it is in the Government's interest If this contract is terminated, fne P~ecipient shallbe 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) IE the Centractor fails to deliver supulies or to perform the services within the time specified in this conhact or any extension or if the Contractor fails to comply with any ocher provisions of this contract, the City of Port Arthur may terminate this contract for default. The City of Poct Arthur shall terminate by delivering to the ContractoF-a Notice of Termination specifying the nature of the default. The Contractor-will only be pay w~h the mannercor perfo mance set fortdh?n this contracts services performed in accordance 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 shallbe the same as if the termination had been issued for the convenience of the Recipient. g. Termination for Default (Transportation Services) If the ContractorNfa~~ i p~ ~~ psi e died in commodities or to perform the services, including delivery services, this contract or any extension or if the Contractor fails to comply with any other provisions of this conhact, the City of Port Arthur may terminate this contract for default. The City of Port Arthur 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. IE this contract is terminated while the Contractor has possession of Recipient goods, the Contractor shall, upon direction of the City of Port Arthur, protect and preserve the goods until surrendered to the Recipient or its agent The Contractor and City of Port Arthur shall agree on payment for the preservation and protection of goods. Failure to ao ee 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 te~minationl adbeeneis led fo ahe cronveniencelof thetCity oflPorttArthu e as if the 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 conriact 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 conhact, the City of Port Arthur may terminate this contract for default. The City of Port Arthur shall ternnate by delivering to the Conhactor a Notice of Termination specifying the nature of the default. In this event, the 08/09/01. k ;. Federally Required Contract Clauses Eor Construction Services Contracts 28- ' P.ecipient may take over the work and compete it by contractor 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 Conhactor's right to proceed with the work is terminated. This liability includes ary 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 wil7lout the fault or negligence of the Contractor. Examples of such causes include: acts of God, acts of the Pecipient, acts of another Contractor in the performance of a contract with the Recipient, epidemics, quarantine iesh'ictions, spikes, freight embargoes; and 2. the contractor, within [10]`days from the beginning of any delay, notifies the City of Port. Arthur in writing of the causes of delay. If in the judgmentof the City of Port Arthur, the delay is excusable, the time for completing the work shall be extended. The judgment of the City of Port Arthur 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 iI the termination had been issued for the convenience of the Recipient. i. Termination for Convenience or Default (Architect and Engineering) The City of Port Arthur may terminate this contract in whole or in part, for the Recipient's convenience or because of the failure of the Contractor to fulfill the contract obligations. The City of Port Arthur 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 Conhactor 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 u1 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 i' If, after termination for failure to fulfill contract obligations, it is determined that the Contractor vas 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. OS/09/01 29 Federally Required Contract Clauses for Construction Services Contracts j. Termination for Convenience of Default (Cost-Type. Confracts) The City of PortArthur may terminate this contract, or any portion of it, by serving a notice or ternnation on the Contractor. The notice shall state whether the termination is for convenience of the City of Port Arthur 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 hom funds received from the City of Port Arthur, or property supplied to the Contractor by the City of Port Arthur If the termination is for default, the City of Port Arthur may fix the fee, if the contract provides for a fee, to be paid the contractor in proportion to the value, if any, of work performed up to the time of termination. The Contractor shall promptly submit its termination claim to the City of Port Arthur and the parties shall negotiate the termination settlement to be paid the Contractor. If theterrninaton is for the convenience of the City of Port Arthur, the Contractor shall be paid its contract closeout costs, and' a fee, if the contact provided for payment of a fee, in proportion to the work performed up to the time of termination. If, after serving a notice of termination for default, the City of Port Arthur 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 conh'ol of the contractor, the City of Port Arthur, after setting up a new work schedule, may allow the Contactor to continue work, or heat t Ze termination as a termination for convenience. 18. GOVERNMENT-WIDE DEBARMENT AND SUSPENSION (NON-PROCUREMENT) 49 CFR Part 29 Executve Order 12549 Applicability to Contracts Executive Order 12549, as implemented by 49 CFR Part 29, prohibits FTA recipients and sub- recipients from contracting for goods and services Irom organizations that have been suspended or debarred from receiving Federally assisted contracts. Rs part of their applications each year, recipients are required to submit a certification to the effect that they will not enter into contracts over $100,000 with suspended or debarred conhactors and that they will require their contractors (and their subcontractors) to make the same cerhficaton to them. Flow Down conhactors are required to pass this requirement on to subcontractors seeking subcontracts over $100,000. Thus, the terms "lower tier covered partiapant" and "lower tier covered transaction" include both conhactors and subcontractors and contracts and subcontracts over S1oo,o00. Model Clause/ Language (Instructions) The certification and inshuction language is contained at 29 CFP. Part 29, o ~pzoposalsJ foci all corbhactslo e~$100,000 egardlessfof lleltypelobconhacf to berawardedids Certification Regarding Debarment, Suspension, and Other Responsibility \4atters Lower Tier Covered Transactions (Third Party Contracts over 5100,000). 08/09%01' '; ~;= ... Federally Required. Contract Clauses for Construction Services Contracts 30 Instructions for Certification 1. By signing and submitting this bid or proposal, the prospective lower tier participant is providing the signed certification set out below . 2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered-into If it is later determined that the prospecti•.~e lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, City of Port Arthur may pursue available remedies, including suspension and/or debarment. 3. Tlie prospective lower tier participant sha- provide immediate written notice to City of Port Arthur if at any time the prospective lower tier participant learns that its certification was erroneous when submitted. or has become erroneous by reason of changed circumstances. 4. The terms "covered transaction;" "debarred;' "suspended," "ineligible," "lower tier covered transaction," :"participant " "persons," "lower tier covered transaction," "principal," "proposal;' and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549 [49 CFR Part 29].-You-may contact City of Port Arthur for assistance in obtaining a copy of those reo lations. 5. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered h'ansaction be entered into, it shall not knowingly enter into any lower tier covered hansaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized in writing by City of Port Arthur 6. The prospective lower tier participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspensron, Ineliorbility and Voluntary Exclusion -Lower Tier Covered Transaction', without modification, in all lower tier covered hansactions and in.allsolicitations for lower tier covered transactions. 7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred, suspended, ineligible, ox voluntarily excluded from the covered hansaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the Nonprocurement List issued by U.S. General Service Administration. 8. Nothing contained in the foregoing shall be conshued to require establishment of system of records in order to iendec in good faith the certification required by this clause. The knowledge and information.of a participant is not required to exceed that tivhich is normally possessed by a prudent person in the ordinary course of business dealings. 9. Except for transactions authorized under Paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who OS/09/01 31 Federally Required Contract Clauses for Construction Services Contracts is suspended, debarred, ineligible, or voluntarily excluded from patticipation in this transaction, in addition to all remedies available to the Federal Government, City of Port Arthur may pursue available remedies including suspension and/or debarment. "Certification Regarding Debarment, Suspension, IneligibIlity and Voluntary Exclusion -Lower Tier Covered Traruaction" (1) The prospective lower tier participant certifies, by submission of this bid or proposal, that neither it nor its "principals" [as defined at 49 CFR § 29.105(p)] is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transactionby any Federal department or agency. (2) When the prospective lower tier participant is unable to certify to the statements m this certification, such prospective participant shall attach an explanation to this proposal. 19. PRNACY=ACT 5 USC § 552 ApplicabIlity to Contracts When a grantee maintains files on drug and alcohol enforcement activities forFTA;-and fliose files are organized so that information could be retrieved by personal identifier, the Privacy Act requirements apply to all conhacts. Flow Down The Federal Privacy Act requirements flow down to each third party contractor and their contracts at every tier. ..,,. Model Clause/Language The text of the following clause has not been mandated by statute or specific regulation, but has been developed by ETA. Contracts Involving Federal Privacy Act Requirements -The following requirements apply to the Contractor and its employees that administer any system of records on behalf of the Federal Government under any contract (1) The Contractor agrees to comply with, and assures the compliance of its employees with, the information restrictions and other applicable requirements of the Privacy Act of 1974, 5 USC § 552x- Among other things, the Conractor agrees to obtain the express consent of the Federal Governmentbefore the Contactor or its employees operate a system of records on behalf of the Federal Government. The Contractor understands that the requirements of the Privacy Act, including the civil and criminal penalties for violarion of that Act, apply to those indi~~iduals involved, and that failure to comply with the terms of the Privacy Act may result in termination of the underlying contract. 08/09'/01`. 32 Federally Required Contract Clauses for Construction Services Contracts (2) The Contractor also agrees to include these requirements in each subcontract to administer any system of records on behalf of the Federal Government financed in whole or in part with Federal assistance provided by FTA. 20. CIVIL RIGHTS REQUIREMENTS 29 USC § 623, 42 USC § 2000 42 USC § 6102, 42 USC § 12112 42 USC § 12132, 49 USC § 5332 29 CFR Part1630, 41 CFR Parts 60 et seq. Applicability to Contz'acts The Civff Rights P.equirements apply to all conhacts. Flow Down The Civil Rights requirements flow down to all third party contractors and their conhacts at every tier. Model Clause/ Language The following clause was predicated on language contained at 49 CFR Part 7.9, Appendix A, but - _- - ---- FTA has shorten the lengthy text. Civil P.ights -The following requirements apply to theunderlying contract {1) Nondiscrimination - Iri accordance with Title VI of the Civil. Rights Act, as amended, 42 USC § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 USC § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 USC § 12132, and Federal transit law at 49 USC § 5332, the Conhactor agrees that it will not discriminate against any employee or applicant for employment because of race, color, weed, national origin, sex, age, or disabflity. 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 Origit, Sex - In accordance with Title VII of the Civil Rights Act, as amended, 42 USC § 2000e, and Federal transit laws at 49 USC § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Departmeint of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 CFR 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 USC § 2000e note), and with any applicable Federal statutes, executive orders, regulations, ancl~ederal 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 heated. 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 .` -08/09/O1`- ' 33 Federally Required conhact Clauses for Construcfion Services Contracts advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.Tnaddition, 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 USC § 623 and Federal transit law at 49 USC § 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 PTA may issue. (c) Disabilities - In accordance with section 102 of the Americans with Disabilities Act as amended, 42 USC § 12112, the Contractor agrees that it wIll comply with the requirements of U.S. Equal Employment Opportunity Com,-nission, "P.egulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 CFR Part 1630, pertainuig 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 Federalassistance provided by FTA, modified only if necessary to identify the affected pzrties. __. _.______ _... _ _ 21. BREACHES AND DISPUTE RESOLUTION 49 CPR Part 18 FTA Circular 4220.1D Applicability to Contracts All contracts in excess of $100,000 shall contain provisions or conditions which will allow for administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as may be appropriate. This may include provisions for bonding, penalties for late or inadequate performance, retained earnings, liquidated damages or other appropriate measures. Flow Down The Breaches and Dispute Resolutions requirements flow down to all tiers. Model Clauses/Language PTA does not prescribe the form or content of such provisions. What provrsions 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 thud party contracts.. Disputes -Disputes arising in the performance of this conhact which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of City of Port Arthuis [title of employee]. Tlus decision shall be final and conclusive iulless 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 Conhactor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The 08/09/01 34 ' Federally Required Contract Clauses for Construction Services Contracts decision of the [title of employee] shall be binding upon the Contractor and the Contractor shall abide be the decision. Performance During Dispute -Unless otherwise directed by City of Port Arthur, Contractor shall continue performance under Phis Contract while matters in dispute are being resolved. Claims forDamages -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 actshe is legally liable, a claim for damages therefor shall be made in.tivriting to such other party within a reasonable time after the first observance of such injury of damage. Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other matters in question between the City of Port Arthur and the Contractor arising out of or relating to this agreement or its breach will be decided by arbih'ation if the parties mutually agree, or in a court of competent jurisdiction within the State in which the City of Port Arthur is located. _ Rights and P.emedies -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, obligaions, rights and remedies otherwise imposed or available by law. No action or failure to act by the City of Port Arthur, (Architect) or Contractor shall constitute a waiver of to act conoti ate anfapproval of or acqu>s encteu any breadothereundersexcept aos may belre specifically agreed in writing. 22. DISADVANTAGEDBUSINLSS EN"IERPRISE (DBE) 49 CFR Part 26 Applicability to Contracts DEE provisions only apply to all DOT-assisted contracts. Disadvantaged Business Enterprise Provision ,_ _. ej:; 1. The Federal Fiscal Year goal has been set by City of Port Arthur in an attempt to match projected procurements with available qualified disadvantaged businesses. Cit}' of Port Arthur's goals for budgeted servrce contracts, bus parts, and other material and supplies for Disadvantaged Business Enterprises have been established by City of Port Arthur as set forth by the Department of Transportation Regulations 49 CFR Part 23, March 31,1980, and amended by Section 106(c) of the Surface Transportation Assistance Act of 1987, and is ronsidered pertinent to any Conh'act Agreement resulting fiom this request for proposal. If a specific DBE goal is assigned to this Contract Agreement, it will be clearly stated in-the Special Specificltions, and if the Contractor is found to have failed to exertCsufEofrPo ~t Arthur reasonable, and good faith efforts to involve DBE's in the work provided, ty may declare the Conh'actoi non-complaint end in breach of Contract Agreement. IE a goal is not stated in the SpecialSpecifications, it will be understood that no specific goal is assigned to this OS/09/01 35 _ s Federally. Required ContractClauses.forConsuuction Services Contracts Contract Agreement. (a) Policy - It is the policy of the Department of Transportation and City of Port Arthur that Disadvantaged Business Enterprises, as defined in 49 CFR Part 26, and as amended in Section 106(c) of the Surface Transportation and Uniform Relocation Assistance Act of 1987, shall have the maximum opportunity to participate in the performance of Contract Agreement financed in whole or in part with federal funds under this Contract Agreement. Consequently, the DBE requirements of 49 CFR Part 26 and Section 106(c) of the STURAA of 1987, apply to this Contract Agreement The Contractor agrees to ensure that DBE's as defined in 49 CFR Part 26 and Section 106(c) of the STURAA of 1987, have the maximum opporhmity to participate in the whole or in part with federal funds provided under this Conh'act Agreement. In this regard, the Contractor shall take ell necessary and reasonable steps in accordance with the regulations to ensure that DBE's have the maximum opportunity to compete for and perform subcontracts. The Contractor shall not discriminate oa the basis of race, color, national origin, religion, sex, age or physical handieap~in the award and performance of subcontracts. It is further the policy of City of Port Arthur to promote the development and increase the participation of businesses owned and controlled by disadvantaged. DBE involvement in all phases of City of Port Arthui s procurement acfivities rs encouraged. (b) DBE obligation -The Contractor end its subcontractors agree to ensure that disadvantaged businesses have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with federal funds provided under the Contract Agreement. In that regard, ell Contractors and subcontractors shall take all necessary and reasonable steps in accordance with 49 CFR Part 26 as amended, to enswe that minority business enterprises have the maximum opportunity to compete for end perform contracts. (c) Where the Contractor is found to have failed to exert sufficient reasonable and good faith efforts to involve DBE's in the work provided, the City oI Port Arthur may declare the Contractor non-complaint end in breach of Contract Agreement. (d) The Contractor will keep records and documents for a reasonable time following performance of this Contact Agreement to indicate compliance With City of Port Arthur's DBE program. These records and documents will be made available et reasonable times and places for inspection by any authorized representative oI City of Port Arthur and will be submitted to City of Port Arthur upon request. (e) City of Port Arthur will provide affirmative assistance as may be reasonable and necessary to assist the prime Contractor in implementing their programs for DBE participation. The assistance may include the following upon request. * Identification of qualified DBE * Available listing of Minority Assistance Agencies 08/09/01