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HomeMy WebLinkAboutPR 23575: PURCHASE ULTRA LOW SULFUR DIESEL FUEL AND GASOLINE FOR THE PORT ARTHUR TRANTSIT DEPARTMENT City of Port Arthur Transit Department Memorandum To: Ronald Burton,City Manager From: Ivan Mitchell,Transit Director Date: February 8,2024 Re: P.R.23575—Purchase Ultra Low Sulfur Diesel Fuel and Gasoline for the Port Arthur Transit Department Nature of Request: The purpose of this agenda item is to request approval to execute a contract with Tri-Con, Inc. to purchase gasoline for a projected amount of$40,000.00 annually and ultra-low sulfur diesel for the projected amount of $50,000.00 annually for a total annual project budgetary impact amount of $90,000.00. Background: On December 28, 2023,the Port Arthur Purchasing Division issued advertised for bid via P24-014 to supply PAT with fuel,(i.e.,ultra-low sulfur diesel and gasoline). A total of five(5)bids were received, and have been evaluated by Purchasing and PAT. Tri-Con,Inc.was deemed lowest bidder at $+.0525 OPIS difference for gasoline and ultra-low diesel. Recommendation: It is recommended the City Council approve proposed P.R. 23575 to authorize the City Manager to execute a one-year contract with two (2) one-year renewal options with Tri-Con, Inc. to purchase gasoline and ultra-low sulfur diesel for PAT.The projected estimated amount is$40,000.00 for gasoline and$50,000.00 for ultra-low sulfur diesel. Budgetary/Fiscal Effect: Funding for the purchase is budgeted in annual operating budgets: $40,000.00 from account 401-70- 505-5230-00-60-000, and $50,000.00 from account 401-70-525-5230 00-60-000 for a total projected annual budgetary impact amount of$90,000.00. P.R. No. 23575 02/8/2024 IM RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH TRI-CON, INC. OF BEAUMONT, TEXAS FOR THE PURCHASE OF GASOLINE AND ULTRA LOW SULFUR DIESEL FUEL FOR THE PORT ARTHUR TRANSIT DEPARTMENT WITH AN ANNUAL TOTAL PROJECTED BUDGETARY IMPACT AMOUNT OF $90,000.00; FUNDS ARE AVAILABLE IN PROJECT TR2402 ACCOUNT NOS. 401-70-505-5230-00-60-000 ($40,000.00 FOR GASOLINE); AND 401- 70-525-5230-00-60-000 ($50,000 FOR DIESEL). WHEREAS, Port Arthur Transit (PAT) Department has been allotted funds in their annual budget to purchase fuel; and, WHEREAS, on December 28, 2023, the Purchasing Division advertised for bids for the purpose of providing fuel, (i.e., gasoline and ultra-low sulfur diesel) for PAT; and, WHEREAS, five (5) bids were received and evaluated by the Purchasing Division with Tri-Con, Inc being ' • deemed the lowest bidder, a copy of the Bid Tabulation is attached hereto as Exhibit"A"; and, WHEREAS, the Purchasing Division recommendation is to award a one-year contract with the option for two (2) additional one-year renewals to Tri-Con, Inc. for the purchase of gasoline in the projected annual amount of $40,000.00 and ultra-low sulfur diesel fuel in the projected annual amount of$50,000.00 for PAT; and, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: THAT, the facts and opinions in the preamble are true and correct. THAT, the City Manager is hereby authorized to execute a contract with Tri-Con, Inc. for the purchase of gasoline and ultra-low sulfur diesel fuel with an annual projected budgetary impact amount of$90,000.00. THAT, the contract will be for one-year period with the option to renew for two (2) additional one-year periods. THAT, funding for this procurement is made available in Project TR2402 Account Nos. 401-70-505-5230-00-60-000 ($40,000.00 For Gasoline); And 401-70-525-5230-00-60-000 ($50,000 For Diesel Fuel). P.R. No. 23575 02/8/2024 IM THAT a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED this day of A.D. 2024 at a Regular Meeting of the City of Port Arthur, Texas by the following vote: AYES: Mayor: Councilmembers: NOES: Thurman"Bill"Bartie, Mayor ATTEST: Sherri Bellard, City Secretary APP OVED AS TO FORM: al Tizeno, City Attorney P.R. No. 23575 02/8/2024 IM APPROVED FOR ADMINISTRATION: APPROVED AS TO AVAILABILITY OF FUNDS: 401-70-505-5230-00-60-000,401-70-525- 5230-00-60-000,401-70-510-5230-60-000 Ronald 1 &2414LL/Y_ Ronald Burton Lynd Boswe�ll � City Manager Director of Finance Clifto Williams, CPPB Ivan Mitchell Purchasing Manger Transit Director P.R. No. 23575 02/8/2024 IM Exhibit "A" c ' 'iii '72 J [ [ [ cs C 0 : "'� t n U. U1 '-C ic• e' O = u r;• O C S Do OcG ►ems E c c e c 9 = C N N N .0i = Q C (A (Ji (Ji R m A -. n re ill 0 eo �, C .11 y ✓ Ess ii5 sr3 ce R, et �, c c © C ►9 c C .0,. ` eo = G. C C C a ►et s CZ o r.� p o s ' CA C 04. Q ofto C Cn p �- ti w w e . 1.1 M ' sr3 EA EA S ?: + + + a : Cc CcEA + + crc V A 0r c " to CO •CO `a C ►s ►1 a (r A A A ' C C = A: X et a- o = Al A� A A m A i( ye x CD o -EA EA EA 1 z EA + + + _ = O O C C C d n c m c ►' c c c et Cr.. et n et • P.R. No. 23575 02/8/2024 IM Exhibit "B" CONTRACT FOR ULTRA LOW SULFUR DIESEL AND GASOLINE FUEL THIS AGREEMENT made this the of 2024, by and between the City of Port Arthur, a municipal corporation organized under the laws of the State of Texas, hereinafter called "OWNER" or "CITY", and Tri-Con.Inc. a(n) Corporation hereinafter called "CONTRACTOR". WITNESSETH: That for and in consideration of the payment terms, conditions and agreements set forth herein, OWNER and CONTRACTOR agree as follows: 1. The term of this Contract shall be for one (1)year from the date stated on the Notice to Proceed with an option to renew by mutual agreement for two (2) additional one-year periods unless sooner terminated under the provisions hereof. The bid was based on a price differential above the Oil Price Information Service (OPIS) ADD 3 Report for the Beaumont/Port Arthur area. Each subsequent yearly contract renewal shall require approval of the City Council. 2. During the term of this Contract, the CONTRACTOR will furnish at his own expense all the materials, supplies, tools, equipment, labor, and other services necessary to connection therewith, excepting those supplies specifically not required of CONTRACTOR in the Specifications. 3. The CONTRACTOR agrees to perform all the work described in the Specifications and contract documents and comply with the terms therein for unit prices as stated below: (ULTRA LOW SULFUR DIESEL FUEL) Unit Cost $.0525 above OPIS (GASOLINE) Unit Cost $.0525 above OPIS 4. The term "Contract Documents" means and included the following: (A) Agreement (B) Invitation to Bid (C) General Information (D) Specifications (E) Bid (F) Bidder's Information Sheet (G) Notice to Proceed (H) Federal Clauses 5. This Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. IN WITNESS WHEREOF,the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in two (2) copies, each of which shall be deemed an original of the date first written above. OWNER CONTRACTOR BY: BY: Ronald Burton Tri-Con, Inc. City Manager Beaumont, TX Print Name: Title: THURMAN BILL BARTIE,MAYOR RONALD BURTON TIFFANY HAMILTON,MAYOR PRO TEM CITY MANAGER _ .rte COUNCIL MEMBERS: City of it SHERRI BELLARD,TRMC WILLIE BAE LEWIS CITY SECRETARY DONEANE BECKCOM HAROLD L.DOUCET,SR t r t h u VAL TREND THOMAS KINLAW III CITY ATTORNEY DONALD FRANK,SR. T t t r DECEMBER 28, 2023 INVITATION TO BID DIESEL FUEL AND GASOLINE FOR TRANSIT VEHICLES DEADLINE: Sealed Bid submittals must be received and time stamped by 3:00 p.m., Central Standard Time, Wednesday, January 10, 2024. (The clock located in the City Secretary's office will be the official time.) All bids received will be read aloud at 3:15 p.m. on Wednesday,January 10, 2024 in the City Council Chambers, City Hall, 5th Floor,Port Arthur, TX. You are invited to attend. MARK ENVELOPE:P24-014 DELIVERY ADDRESS: Please submit one(1) original and one(1) copy of your bid to: CITY OF PORT ARTHUR CITY OF PORT ARTHUR CITY SECRETARY or CITY SECRETARY P.O. BOX 1089 444 4TH STREET, 4th Floor PORT ARTHUR,TEXAS 77641 PORT ARTHUR, TEXAS 77640 POINTS OF CONTACT: Questions concerning the Invitation to Bid or Scope of Work should be directed in writing to: City of Port Arthur, TX Clifton Williams P.O. Box 1089 Port Arthur, TX 77641 clifton.williamsna,portarthurtx.gov Purchasing Division/Finance Department I Purchasing Manager,Clifton Williams,CPPB P.O.Box 10891444 4th Street I Port Arthur,Texas 77641 1409.983.8160 I Fax 409.983.8291 The enclosed Invitation to Bid(ITB) and accompanying General Instructions, Conditions and Specifications are for your convenience in submitting bids for the enclosed referenced services for the City of Port Arthur. Bids must be signed by a person having authority to bind the firm in a contract. Bids shall be placed in a sealed envelope,with the Vendor's name and address in the upper left-hand corner of the envelope. ALL BIDS MUST BE RECEIVED IN THE CITY SECRETARY'S OFFICE BEFORE OPENING DATE AND TIME. It is the sole responsibility of the firm to ensure that the sealed ITB submittal arrives at the above location by specified deadline regardless of delivery method chosen by the firm. Faxed or electronically transmitted ITB submittals will not be accepted. Clifton Williams Purchasing Manager INVITATION TO BID DIESEL FUEL AND GASOLINE FOR TRANSIT VEHICLES (To be Completed ONLY IF YOU DO NOT BID) FAILURE TO RESPOND TO BID SOLICITATIONS FOR TWO (2) BID PERIODS MAY RESULT IN REMOVAL FROM THE VENDOR'S LIST. However, if you are removed you will be reinstated upon request. In the event you desire not to submit a bid, we would appreciate your response regarding the reason(s). Your assistance in completing and returning this form in an envelope marked with the enclosed bid would be appreciated. NO BID is submitted: this time only not this commodity/service only Yes No Does your company provide this product or services? Were the specifications clear? Were the specifications too restrictive? Does the City pay its bills on time? Do you desire to remain on the bid list for this product or service? Does your present work load permit additional work? Comments/Other Suggestions: Company Name: Person Completing Form: Telephone: Mailing Address: Email: City, State, Zip Code: Date: SPECIFICATIONS FOR DIESEL FUEL AND GASOLINE FOR TRANSIT VEHICLES The contract will be for 12 months. The City has the option to renew for two additional one year periods. All deliveries will be F. O. B City storage tanks. Deliveries will be by a Tank Transport Truck. Transit tank is above ground. Bob tails are allowable for delivery. Must have a pump on truck. Freight and taxes included in cost. City of Port Arthur is only Sales Tax Exempt. Bidders must bid a price differential above or below the average price of the PADD 3 Report published for Beaumont/Port Arthur, Texas, by the Oil Price Information Service (OPIS). The price of fuel delivered during the contract term will be determined by applying the differential bid to the PADD 3 average price in affect on the date of delivery. The PADD 3 price that is weekly and released on Thursday afternoon. All delivered fuel shall be transferred to the City of Port Arthur owned tanks. Delivery trucks shall be properly equipped with accurate measuring devices, vapor recovery systems, and spill pickup equipment. City of Port ' Arthur personnel must verify this equipment upon completion of delivery. Deliveries shall be made on a net gallon basis, temperature corrected to 60° F. Vendors must be able to furnish certificates issued by the State of Texas that verify tank capacities for a given truck. Orders for deliveries will be made by the Transit and Utility Operations Departments in quantities of 5,000 gallons or less. Deliveries will be made within one(1)workday of the order to the locations listed below: Utility Operation tank is underground. The Utility Operation tank capacity is 2,000 gallons. The Transit tank is above group capacity is 5,000 gallons. It is two 5,000 gallon tanks that are connected. One tank is for diesel, and the other tank is gasoline. Ultra Low Sulfur Diesel Fuel Department Location Estimated Estimated Hours of Delivery Annual Usage Average Order Transit 301 4th Street 48,000 gallons 4,000 gallons 8:00 A. M. - 5:00 P. M. (M-F) Utility Operations 2901 Hwy. 365 2,000 gallons 2,000 gallons 7:00 A. M. - 2:00 P. M. (M-F) 87 Octane Gasoline with 10% Ethanol Department Location Estimated Estimated Hours of Delivery Annual Usage Avera e Order Transit 301 4th Street 20,000 gallons 2,000 gallons 8:00 A. M. - 5:00 P. M. (M-F) The amounts specified are estimated based on past experience and the City is not obligated to purchase these amounts. The City's minimum delivery time for an emergency which is hurricanes, natural disasters, or other declared emergencies will be eight (8) hours. Vendor shall provide an emergency plan to the City of Port Arthur for delivery, including length of time after receipt of order that vendor shall make delivery of fuel. Vendors shall state other entities having a priority of delivery over the City of Port Arthur. Quality Control: An original copy of the refinery manifest shall accompany all deliveries. The manifest must be identifiable as to the refiner or common carrier pipeline terminal. Deliveries from any other source will be rejected. Any transport arriving without proper paperwork will not be permitted to unload. The City of Port Arthur reserves the right to test fuels at any time for specification compliance. The cost for such tests shall be paid by the seller in the event the product fails to comply. Such failure will result in the prompt removal of failed products, using the vendor's equipment, at no cost to the City of Port Arthur, within twenty-four (24) hours of notification. Acceptable fuel shall immediately replace unacceptable fuel based on the quality of questionable fuel originally delivered to a given location at no charge for the entire shipment. Violation of specification requirements may give the City of Port Arthur cause to cancel the contract and will be a consideration of future awards. Fuel prices bid will exclude all taxes and loading fees. The bidder must submit Material Safety Data Sheet(s)with bid. Number 2 Low Sulfur Diesel Fuel shall meet or exceed the following specifications: API Gravity 31.8 Cetane index 45.0 Flash point .158° F Mercaptan sulfur 0 004% Water and Sediment 0 0% Pour point 10°F Sulfur .0.14% All fuel shall meet or exceed the performance criteria as established by new vehicles manufacturers or the Society of Automotive Engineers or the American Society for Testing and Materials. DISASTER The City's minimum delivery time for an emergency which is hurricanes, natural disasters, or other declared emergencies will be eight (8) hours. Vendor shall provide an emergency plan to the City of Port Arthur for delivery, including length of time after receipt of order that vendor shall make delivery of fuel. Vendors shall state other entities having a priority of delivery over the City of Port Arthur. Plan will include cost to ren a tank if necessary. CITY OF PORT ARTHUR,TEXAS BID SHEET BID FOR: Diesel fuel and Gasoline for Transit BID DUE DATE: January 10, 2024 DESCRIPTION OPIS DIFFERENCE FLAT CHARGE FOR SPLIT DELIVERY TO MORE THAN ONE LOCATION Ultra Low Sulfur Diesel Fuel for Transit $ 0525 $ $37.00 Ultra Low Sulfur Diesel Fuel for Utility Operations $ .0525 $ $37.00 Gasoline for Transit $ .0525 $ $37.00 Tri-Con Inc. 7076 West Port Arthur Road COMPANY NAME STREET ADDRESS Xkl.O"o-►'ILm,0-/l,e, P.O. Box 20555 I GTURE OF BIDDER P.O. BOX Jody Spoonemore Beaumont Texas 77720 PRINT OR TYPE NAME CITY STATE ZIP Sales Representative 409 835-2237 TITLE AREA CODE TELEPHONE NO jodyspoonemore@triconinc.org 409 835-1925 EMAIL FAX NO. NON-COLLUSION AFFIDAVIT CITY OF PORT ARTHUR § § STATE OF TEXAS § By the signature below, the signatory for the bidder certifies that neither he nor the firm, corporation, partnership or institution represented by the signatory or anyone acting for the firm bidding this project has violated the antitrust laws of this State, codified at Section 15.01, et seq., Texas Business and Commerce Code, or the Federal antitrust laws, nor communicated directly or indirectly the bid made to any competitor or any other person engaged in the same line of business, nor has the signatory or anyone acting for the firm, corporation or institution submitting a bid committed any other act of collusion related to the development and submission of this bid proposal. Signature: poo'n.2,rrtoit.2, Printed Name: Jody Spoonemore Title: Sales Representative Company: Tri-Con Inc. Date: 01/08/24 SUBSCRIBED and sworn to before me the undersigned authority by 34,.,\ the < of, abAtkon behalf of said bidder. \- --,_.._>..Dc, C .c_. L Notary Public in and for e State of Texas My commission expires: 3`" -z l a.1 : C Paula Cooper My Commission Expires 4 3/20/2027 I Notary ID 7118932 I AFFIDAVIT All pages in Offeror's Responses containing statements, letters, etc., shall be signed by a duly authorized officer of the company whose signature is binding. The undersigned offers and agrees to one of the following: x I hereby certify that I do not have outstanding debts with the City of Port Arthur. I further agree to pay succeeding debts as they become due. I 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 further agree to pay succeeding 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. Tri-Con Inc. 01-08-24 Firm Name Date ( 011.14- "4-07"Pl.2.tn.0''' Sale Representative Authorized Signature Title Jody Spoonemore 409-835-2237 Name(please print) Telephone jodyspoonemore@triconinc.org Email STATE: COUNTY: flac4,erz'n SUBSCRIBED AND SWORN to before me by the above named CY2._.v Q_ on this the day of , 20 aA . Notary Public RETURN THIS AFFIDAVIT AS PART OF THE BID PROPOSAL Paula Cooper • MY Expres 3/20/2027 Notary ID 7118932 CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who Date Received has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local governmental entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code.An offense under this section is a misdemeanor. ._J Name of vendor who has a business relationship with local governmental entity. N/A Jn I I Check this box if you are filing an update to a previously filed questionnaire.(The law requires that you file an updated f ' completed questionnaire with the appropriate filing authority not later than the 7th business day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate) A Name of local government officer about whom the information is being disclosed. Name of Officer Al Describe each employment or other business relationship with the local government officer, or a family member of the officer,as described by Section 176.003(a)(2)(A). Also describe any family relationship with the local government officer. Complete subparts A and B for each employment or business relationship described. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer or a family member of the officer receiving or likely to receive taxable income, other than investment income, from the vendor? Yes No B. Is the vendor receiving or likely to receive taxable income, other than investment income,from or at the direction of the local government officer or a family member of the officer AND the taxable income is not received from the local governmental entity? 7Yes nNo Describe each employment or business relationship that the vendor named in Section 1 maintains with a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership interest of one percent or more. 61 Check this box if the vendor has given the local government officer or afamily member of the officer one or more gifts as described in Section 176.003(a)(2)(9), excluding gifts described in Section 176.003(a-1). LI 40-7711-Lnu7V, 01-08-24 Slgnatui�of vendor doing business with the governmental entity Date Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 1 1/30 2015 CONFLICT OF INTEREST QUESTIONNAIRE For vendor doing business with local governmental entity Acomplete copy of Chapter 176 of the Local Government Code may be found at http://www.statutes.legis.state.tx.us/ Docs/LGlhtm/LG.176.htm.For easy reference.below are some of the sections cited on this form. Local Government Code§176.001(1-a):"Business relationship'.means a connection between two or more parties based on commercial activity of one of the parties. The term does not include a connection based on: (A) a transaction that is subject to rate or fee regulation by a federal,state,or local governmental entity or an agency of a federal.state;or local governmental entity: (B) a transaction conducted at a price and subject to terms available to the public;or (C) a purchase or lease of goods or services from a person that is chartered by a state or federal agency and that is subject to regular examination by,and reporting to,that agency. Local Government Code§176.003(a)(2)(A)and(B): (a) A local government officer shall file a conflicts disclosure statement with respect to a vendor if: (2) the vendor: (A) has an employment or other business relationship with the local government officer or a family member of the officer that results in the officer or family member receiving taxable income,other than investment income, that exceeds$2,500 during the 12-month period preceding the date that the officer becomes aware that (i) a contract between the local governmental entity and vendor has been executed: or (ii) the local governmental entity is considering entering into a contract with the vendor: (B) has given to the local government officer or a family member of the officer one or more gifts that have an aggregate value of more than$100 in the 12-month period preceding the date the officer becomes aware that: (i) a contract between the local governmental entity and vendor has been executed;or (ii) the local governmental entity is considering entering into a contract with the vendor. Local Government Code 4 176.006(a)and(a-1) (a) Avendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship with a local governmental entity and: (1) has an employment or other business relationship with a local government officer of that local governmental entity,or a family member of the officer,described by Section 176.003(a)(2)(A); (2) has given a local government officer of that local governmental entity,or a family member of the officer,one or more gifts with the aggregate value specified by Section 176.003(a)(2)(B).excluding any gift described by Section 176,003(a-1);or (3) has a family relationship with a local government officer of that local governmental entity. (a-1) The completed conflict of interest questionnaire must be filed with the appropriate records administrator not later than the seventh business day after the later of: (1) the date that the vendor: (A) begins discussions or negotiations to enter into a contract with the local governmental entity:or (B) submits to the local governmental entity an application.response to a request for proposals or bids,correspondence. or another writing related to a potential contract with the local governmental entity:or (2) the date the vendor becomes aware: (A) of an employment or other business relationship with a local government officer,or a family member of the officer,described by Subsection(a); (B) that the vendor has given one or more gifts described by Subsection(a);or (C) of a family relationship with a local government officer. Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11:'302015 10 of 23 GENERAL INFORMATION: NOTE: It is extremely important that the Vendor, Bidder, and/or Contractor furnish the City of Port Arthur the required information specified in Bid or Proposal Specifications listed in this Bid Package. All bids meeting the intent of this request for bid will be considered for award. BIDDERS TAKING EXCEPTION TO THE SPECIFICATIONS, OR OFFERING SUBSTITUTIONS, SHALL STATE THESE EXCEPTIONS BY ATTACHMENT AS PART OF THE BID. The absence of such a list shall indicate that the bidder has not taken exceptions and the City shall hold the bidder responsible to perform in strict accordance with the specifications of the invitation. The City reserves the right to accept any and all or none of the exception(s)/substitutions(s) deemed to be in the best interest of the City of Port Arthur. ALTERING BIDS: Bids cannot be altered or amended after submission deadline. Any interlineations, alteration, or erasure made before opening time must be initialed by the signer of the bid, guaranteeing authenticity. BID AWARD: The City of Port Arthur will review all bids for responsiveness and compliance with these specifications. The award shall be made to the responsive,responsible bidder who submits the best value bid. The 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 lump 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 to 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 business is in the City of Port Arthur and whose bid is within 5%of the lowest bid price, as provided by Section 271.905 of the Texas Government Code. TERMINOLOGY: "Bid" vs. "Proposal"--For the purpose of this ITB, the terms "Bid" and Proposal" shall be equivalent. Bidders are cautioned to read the information contained in this ITB 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 offer or accept gifts or anything of value nor enter into any business arrangement with any employee,official or agent of the City of Port Arthur. 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 an award. 5. Be engaged in a full time business and can assume liabilities for any performance or warranty 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 monies 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 arrangements to pay the same. ADDENDA: Any interpretations, corrections or changes to the ITB and Specifications will be made by addenda. Sole issuing authority of addenda shall be vested in the City of Port Arthur Purchasing Manager. The City assumes no responsibility for the bidder's failure to obtain and/or properly submit any addendum. Failure to acknowledge and submit any addendum may be cause for the bid to be rejected. It is the vendor's responsibility to check for any addendums that might have been issued before bid closing date and time. PORT ARTHUR PRINCIPAL PLACE OF BUSINESS: Any bona fide business that claims the City of Port Arthur as its principal place of business must have an official business address (office location and office personnel) in Port Arthur, the principal storage place or facility for the equipment shall be in Port Arthur and/or the place of domicile for the principal business owner(s) shall be in Port Arthur or such other definition or interpretation as is provided by state law. Contractors outside the City of Port Arthur are allowed to bid. 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 Arthur, Attn.: Accounts Payable P.O. Box 1089,Port Arthur,Texas 77641. PAYMENT: Payment will be made upon receipt of the original invoice and the acceptance of the goods or services by the City of Port Arthur, in accordance with the State of Texas Prompt Payment Act, Article 601 f V.T.C.S. The City's standard payment terms are net 30, i.e. payment is due 30 days from the date of the invoice. SALES TAX: The City of 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, Jefferson County. COMPLIANCE WITH LAWS: The Contractor shall comply with all applicable laws, ordinances, rules, orders, regulations and codes of the federal, state and local governments relating to performance of work herein. INTEREST OF MEMBERS OF CITY: No member of the governing body 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 carrying out of the program, shall have any personal financial interest, direct 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 Ordinances prohibits the City from granting any license, privilege or paying money to any-one owing delinquent taxes, paving assessments or any money to the City until such debts are paid or until satisfactory arrangements for payment has been made. Bidders must complete and sign the AFFIDAVIT included as part of this ITB. QUANTITIES: 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 contractor shall not have any claim against the City of Port Arthur for quantities less than the estimated amount. SHIPPING INFORMATION: All bids are to be F.O.B., City of Port Arthur, Port Arthur, TX 77640 INCORPORATION OF PROVISIONS REQUIRED BY LAW: Each provision and clause required by law to be inserted into the Contract shall be deemed to 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 Contract 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 specified, 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. While the purpose of the specifications is to indicate minimum requirements in the way of capability, performance, construction, and other details, its use is not intended to deprive the City of Port Arthur the option of selecting goods which may be considered more suitable for the purpose 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 VI 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. TERMINATION FOR CAUSE: 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 covenants, 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 fifteen(15) days before the effective date of 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. TERMINATION FOR CONVENIENCE: The City may terminate this contract at any time giving at least thirty (30) days notice in writing to the Contractor. If the Contract is terminated by the City as provided herein, the Contractor will be paid for the service that it has performed up to the termination date. If this contract is terminated due to fault of the Contractor, the previous paragraph hereof relative to termination shall apply. RELEASES AND RECEIPTS: The City of Port Arthur before making payments may require the Contractor to furnish releases or receipts for any or all persons performing work and supplying material or service to the Contractor, or any sub-contractors for work under this contract, if this is deemed necessary to protect its interests. CARE OF WORK: The Contractor shall be responsible for all damages to person or property that occurs as a result of his fault or negligence in connection with the work performed until completion and final acceptance by the City. SUB-CONTRACTS: The Contractor shall not execute an agreement with any sub-contractor or permit any sub-contractor to perform any work included in this Contract until he has received from the City of Port Arthur written approval of such agreement. INSURANCE: All insurance must be written by an insurer licensed to conduct business in the State of Texas, unless otherwise permitted by Owner. The Contractor 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 this 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 may be liable, of the following types and limits 1. Standard Worker's Compensation Insurance: 2. Commercial General Liability occurrence type insurance City of Port Arthur, its officers, agents, and employees must be named as an additional insured): a. Bodily injury$500,000 single limit per occurrence or$500,000 each person/$500,000 per occurrence for contracts of$100,000 or less; or Bodily injury$1,000,000 single limit per occurrence or$500,000 each person/$1,000,000 per occurrence for contracts in excess of$100,000; and, b. Property Damage $100,000 per occurrence regardless of contract amount; and, c. Minimum aggregate policy year limit of$1,000,000 for contracts of $100,000 or less; or, Minimum aggregate policy year limit of$2,000,000 for contracts in 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. If individual limits are provided, minimum limits are $300,000 per person, $500,000 per occurrence for bodily injury and$100,000 per occurrence for property damage. 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 numbers, effective dates and expiration dates) and to date and sign and do all other things necessary to complete and make into valid certificates of insurance and pertaining to the above listed items, and before commencing any of the work and within the time otherwise specified, Contractor shall file completed certificates of insurance with the Owner. None of the provisions in said certificate of insurance should be altered or modified in any respect except as herein expressly authorized. Said CERTIFICATE OF INSURANCE Form should contain a provision that coverage afforded under the policies will not be altered, modified or canceled unless at least fifteen (15) days prior written notice has been given to the City of Port Arthur. Contractor shall also file with the City of Port Arthur 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 City of Port Arthur not more than ten(10)days after execution of this Contract. NOTICE TO PROCEED: Notice to Proceed shall be issued within ten (10) days of the execution of the Contract by OWNER. Should there be any reasons why Notice to Proceed cannot be issued within such period, the time may be extended by mutual agreement between OWNER and CONTRACTOR. CELL PHONE OR PAGER: The Contractor must have a working cell phone or pager available Monday through Friday from 8:00 a.m. to 5:00 p.m. so that the City will be able to contact the contractor. DBE: If a subcontractor is required to meet the following will be done to make a good faith effort to hire a minority business (DBE). 1. Solicitation Lists.Must place small and minority businesses and women's business enterprises on solicitation lists. 2 C.F .R. § 200.321 (b)(1 ). 2. Solicitations. Must assure that it solicits small and minority businesses and women's business enterprises whenever they are potential sources. 2 C.F.R. § 200.32 1 (b)(2). 3. Dividing Requirements. Must divide total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses and women's business enterprises. 2 C.F.R. § 200.321(b)(3). 4. Delivery Schedules. Must establish delivery schedules,where the requirement permits,which encourage participation by small and minority businesses and women's business enterprises. 2 C.F.R. §200.321 (b)(4). 5. Obtaining Assistance. Must use the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce. 2 C.F.R. § 200.321(b)(5). ADDITIONAL INFORMATION: City may request any other information necessary to determine Proposer's ability to meet the minimum standards required by this RFP. CHANGE ORDER (a) The Contracting Officer may at any time, and without notice to the sureties, if any, by a written order, make changes within the general scope of this contract in any one or more of the following: (is) drawings, designs, or specifications; (ii) extending term of contract; and (iii) equitable adjustment in price/time of performance. If any such change causes an increase or decrease in the Contractor's cost of, or the time required for, the performance of any part of the work under this contract, whether changed or not changed by the order, an equitable adjustment shall be made in the contract price or delivery schedule, or both, and the contract shall be modified in writing accordingly. (b) Any notice of intent to assert a claim for adjustment under this clause must be asserted by the Contractor within 30 days from the date of receipt of the Contracting Officer's written order; provided, however, that later notice shall not bar the Contractor's claim if the Contractor can demonstrate that PAT was not prejudiced by the delay in notification. In no event shall any claim be asserted after final payment. 1. NO FEDERAL GOVERNMENT OBLIGATION TO THIRD PARTIES. 1. The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or any other party (whether or not a party to that contract)pertaining to any matter resulting from the underlying contract. 2. The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified,except to identify the subcontractor who will be subject to its provisions. 2. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS 1. The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § § 3801 et seq . and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. 2. The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate. 3. The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified,except to identify the subcontractor who will be subject to the provisions. 16 of 23 3. ACCESS TO RECORDS The following access to records requirements apply to this Contract: • Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C. F. R. 18.36(i), the Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. 4. FEDERAL CHANGES Federal Changes - Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract. 5. CIVIL RIGHTS 1. Nondiscrimination- In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. 2. Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: 3. Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq ., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, 17 of 23 executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. 4. Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. 5. Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. 6. The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties 6. DISADVANTAGED BUSINESS ENTERPRISE (DBE) a) It is the policy of the Authority and the Department of Transportation that Disadvantaged Business Enterprises (DBEs) as defined in 49 C.F.R. Part 26 shall have the maximum opportunity to participate in the performance of con- tracts financed in whole or in part with Federal funds under this contract. Consequently, the DBE requirements of 49 C.F.R Part 26 applies to this contract. b) The Contractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The requirements of 49 C.F.R. Part 26, and the Authority's DOT approved Disadvantaged Business Enterprise (DBE) program is incorporated in this contract by reference. Failure by the Contractor to carry out these requirements is a material breach of the contract, which may result in the termination of this contract or such other remedy, as the Authority deems appropriate. 18 of 23 7. INCORPORATION OF FEDERAL TRANSIT ADMINIST TLON LTA)TERMS Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1E are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any (name of grantee) requests which would cause (name of grantee) to be in violation of the FTA terms and conditions. 8. TERMINATION TERMINATION FOR CAUSE: 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 covenants, 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 fifteen (15) days before the effective date of 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. TERMINATION FOR CONVENIENCE: The City may terminate this contract at any time giving at least thirty (30) days notice in writing to the Contractor. If the Contract is terminated by the City as provided herein, the Contractor will be paid for the service that it has performed up to the termination date. If this contract is terminated due to fault of the Contractor, the previous paragraph hereof relative to termination shall apply. 9. DEBARMENT&SUSPENSION This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is required to verify that none of the contractor, its principals, as defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29.945. The contractor is required to comply with 49 CFR 29, Subpart C and must include the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into. By signing and submitting its bid or proposal, the bidder or proposer certifies as follows: The certification in this clause is a material representation of fact relied upon by (insert agency name). If it is later determined that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to (insert agency name), the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The 19 of 23 bidder or proposer agrees to comply with the requirements of 49 CFR 29, Subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. 10. BUY AMERICA REOUIREMENTS The contractor agrees to comply with 49 U.S.C. 5323(j) and 49 C.F.R. 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 granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 C.F.R. 661.7, and include final assembly in the United States for 15 passenger vans and 15 passenger wagons produced by Chrysler Corporation, and microcomputer equipment and software. Separate requirements for rolling stock are set out at 49 U.S.C. 5323(j)(2)(C) and 49 C.F.R. 661.11. Rolling stock must be assembled in the United States and have a 60 percent domestic content. 11.RESOLUTION OF DISPUTES.BREACHES AND OTHER LITIGATION 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. Specific language for dispute resolution will be provided in any resultant contract of the successful proposer. 12. RESTRICTIONS ON LOBBYING (a) The Contractor shall timely comply with the requirements of the lobbying restrictions set forth in Section 319 of Public Law 101-121, as implemented by the Department of Transportation in 49 C.F.R. Part 20, and as those authorities may be hereafter amended. (b) If a Standard Form LLL, "Disclosure Form to Report Lobbying," is required to be completed by the Contractor or subcontractor at any tier, such disclosure form shall be furnished to the Authority. 13. CLEAN AIR (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. 20 of 23 (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 14. CLEAN WATER ACT (1)The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq . The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2)The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 15. CARGO PREFERENCE REOUIREMENTS Use of United States-Flag Vessels - The contractor agrees: a. to use privately owned United States-Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States-Flag commercial vessels; b. to furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 working days following the date of leading for shipments originating outside the United States, a legible copy of a rated, "on-board" commercial ocean bill-of-lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the contractor in the case of a subcontractor's bill-of- lading.) c. to include these requirements in all subcontracts issued pursuant to this contract when the subcontract may involve the transport of equipment, material, or commodities by ocean vessel 16. FLYAMERICA REOUIREMENTS Fly America Requirements - The Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in accordance with the General Services Administration's regulations at 41 CFR Part 301-10, which provide that recipients and subrecipients of Federal funds and their contractors are required to use U.S. Flag air carriers for U.S Government-financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation. 21 of 23 17. .CONTRACT WORK HOURS AND SAFETY STAND- ARDS ACT — OVERTIME COMPENSATION 1. Overtime requirements - No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. 2. Violation; liability for unpaid wages; liquidated damages - In the event of any violation of the clause set forth in paragraph (1) of this section the contractor and any subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this section, in the sum of$10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section. 3. Withholding for unpaid wages and liquidated damages - The (write in the name of the grantee) shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph(2) of this section. 4. Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs (1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1)through (4) of this section. 19.FRIVACY ACT Applicability to Contracts When a grantee maintains files on drug and alcohol enforcement activities for FTA, and those files are organized so that information could be retrieved by personal identifier, the Privacy Act requirements apply to all contracts. The Federal Privacy Act requirements flow down to each third party contractor and their contracts at every tier. 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: (a) The Contractor agrees to comply with, and assures the compliance of its employees with, the information restriction and other applicable requirements of the Privacy Act of 1974, 5 U.S.C. § 552a. Among other things, the Contractor agrees to obtain the express consent of the Federal Government before the Contractor or its emp?8yta 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 violation of that Act, apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may result in termination of the underlying contract. (b) 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. ENERGY POLICY AND CONSERVATION ACT The Contractor shall recognize mandatory standards and policies relating to energy efficiency contained in the State Energy Conservation Plan issued in compliance with the Energy Policy and Conservation Act(42 U.S.C. Section 6321 et seq.). 21. BID PROTESTS. (1) Notice of Protest. A vendor wishing to protest any aspect of the procurement process must do so in writing and submit to the Purchasing Manager. The written protest should include, at a minimum: •Both the name and address of the protestor, as well as the vendor they represent, if different. • The name of the bid being protested. • A statement of the grounds for protest and any supporting documentation. A protest may be submitted to the Purchasing Manager no later than five(5)working days after award. (2) Staff Review. A protest must be in writing and supported by sufficient information in order to be considered. A decision and response to the protest will be prepared by the Purchasing Manager or his designee, in consultation with the department and the City Attorney. within fifteen (15) days of receipt of the protest. Within the fifteen(15) day time period, the City will: •Allow for informal conference on the merits of the protest with all interested parties. •Allow for reconsideration if data becomes available that was not previously known, or if there has been an error of law or regulation. •Render a decision supporting or canceling the award, such decision shall be in the form of a staff recommendation. (3) Appeals. If the protesting vendor does not agree with staff recommendation,they may appeal to the City Council by contacting the City Secretary. Staff recommendations will be made available for public review prior to consideration by the City Council. 22.RECYCLED PRODUCTS. The contractor agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act(RCRA), as amended(42 U.S.C. 6962), including but not limited to the 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR 247. 23 of 23 Table of Contents 1. Drug and Alcohol Testing 2. Charter Bus Requirements 3. School Bus Requirements 4. Energy Conservation Requirements 5. Clean Water Requirements 6. Lobbying 7. Access to Records and Reports 8. Federal Changes 9. Clean Air 10. Contract Work Hours and Safety Standards Act 11. No Government Obligation to Third Parties 12. Program Fraud and False or Fraudulent Statements and Related Acts 13. Termination 14. Government-wide Debarment and Suspension (Non-procurement) 15. Privacy Act 16. Civil Rights Requirements 17. Breaches and Dispute Resolution 18. Transit Employee Protective Agreements 19. Disadvantaged Business Enterprises (DBE) 20. State and Local Law Disclaimer 21. Incorporation of Federal Transit Administration(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 bid being rejected as non-responsive. Company Name: Company Address: Contract Number: Date: Signature: Federally Required and other Model Contract Clauses 2 1. DRUG AND ALCOHOL TESTING 49 U.S.C. A5331 49 CFR Parts 653 and 654 Applicability to contracts The Drug and Alcohol testing provisions apply to Operational Service Contracts. Flow Down Requirements Anyone who performs a safety-sensitive function for the City of Port Arthur or subrecipient is required to comply with 49 CFR 653 and 654,unless the contract is for maintenance services. Maintenance contractors for non-urbanized area formula program grantees are not subject to the rules. Also,the rules do not apply to maintenance subcontractors. Model Clause/Language Introduction FTA's drug and alcohol rules,49 CFR 653 and 654,respectively,are unique among the regulations issued by FTA. First,they require the City of Port Arthur to ensure that any entity performing a safety-sensitive function on the City of Port Arthur's behalf(usually subrecipients and/or contractors) implement a complex drug and alcohol testing program that complies with Parts 653 and 654.Second,the rules condition the receipt of certain kinds of FTA funding on the City of Port Arthur's compliance with the rules;thus,the City of Port Arthur is not in compliance with the rules unless every entity that performs a safety-sensitive function on the City of Port Arthur's behalf is in compliance with the rules.Third,the rules do not specify how a City of Port Arthur ensures that its subrecipients and/or contractors comply with them. Drug and Alcohol Testing The contractor agrees to establish and implement a drug and alcohol testing program that complies with 49 CFR Parts 653 and 654,produce any documentation necessary to establish its compliance with Parts 653 and 654,and permit any authorized representative of the United States Department of Transportation or its operating administrations,the State Oversight Agency of Texas,or the City of Port Arthur,to inspect the facilities and records associated with the implementation of the drug and alcohol testing program as required under 49 CFR Parts 653 and 654 and review the testing process. The contractor agrees further to certify annually its compliance with Parts 653 and 654 before (insert date)and to submit the Management Information System(MIS)reports before(insert date before March 15) to(insert title and address of person responsible for receiving information).To certify compliance the contractor shall use the"Substance Abuse Certifications"in the"Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements,"which is published annually in the Federal Register.The Contractor agrees further to [Select a,b,or c] (a) submit before(insert date or upon request)a copy of the Policy Statement developed to implement its drug and alcohol testing program;OR(b) adopt(insert title of the Policy Statement the recipient wishes the contractor to use)as its policy statement as required under 49 CFR 653 and 654;OR(c)submit for review and approval before(insert date or upon request)a copy of its Policy Statement developed to implement its drug and alcohol testing program.In addition,the contractor agrees to: (to be determined by the recipient,but may address areas such as:the selection of the certified laboratory,substance abuse professional,or Medical Review Officer,or the use of a consortium). Federally Required and other Model Contract Clauses 3 2. CHARTER BUS REQUIREMENTS 49 USC§5323(d) 49 CFR Part 604 Applicability to Contracts The Charter Bus requirements apply to the following type of contract:Operational Service Contracts. Flow Down Requirements The Charter Bus requirements flow down from FTA recipients and subrecipients to first tier service contractors. Model Clause/Language The relevant statutes and regulations do not mandate any specific clause or language.The following clause has been developed by FTA. Charter Service Operations-The contractor agrees to comply with 49 USC§5323(d) and 49 CFR Part 604,which provides that recipients and subrecipients of FTA assistance are prohibited from providing charter service using federally funded equipment or facilities if there is at least one private charter operator willing and able to provide the service,except under one of the exceptions at 49 CFR§604.9. Any charter service provided under one of the exceptions must be "incidental,"i.e.,it must not interfere with or detract from the provision of mass transportation. 3. SCHOOL BUS REQUIREMENTS 49 USC§5323(F) 49 CFR Part 605 Applicability to Contracts The School Bus requirements apply to the following type of contract:Operational Service Contracts. Flow Down Requirements The School Bus requirements flow down from FTA recipients and subrecipients to first tier service contractors. Model Clause/Language The relevant statutes and regulations do not mandate any specific clause or language. The following clause has been developed by FTA. School Bus Operations-Pursuant to 69 USC§5323(f)and 49 CFR Part 605,recipients and subrecipients of FTA assistance may not engage in school bus operations exclusively for the transportation of students and school personnel in competition with private school bus operators unless qualified under specified exemptions.When operating exclusive school bus service under an allowable exemption,recipients and subrecipients may not use federally funded equipment,vehicles,or facilities. 4. ENERGY CONSERVATION REQUIREMENTS Federally Required and other Model Contract Clauses 4 42 USC§6321 et seq. 49 CFR Part 18 Applicability to Contracts The Energy Conservation requirements are applicable to all contracts. Flow Down The Energy Conservation requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subagreements at every tier. Model Clause/Language No specific clause is recommended in the regulations because the Energy Conservation requirements are so dependent on the state energy conservation plan.The following language has been developed by FTA. Energy Conservation-The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. 5. CLEAN WATER REQUIREMENTS 33 USC§1251 Applicability to Contracts The Clean Water requirements apply to each contract and subcontract which exceeds$100,000. Flow Down The Clean Water requirements flow down to FTA recipients and subrecipients at every tier. Model Clause/Language While no mandatory clause is contained in the Federal Water Pollution Control Act,as amended,the following language developed by FTA contains all the mandatory requirements. Clean Water-(1)The Contractor agrees to comply with all applicable standards,orders or regulations issued pursuant to the Federal Water Pollution Control Act,as amended,33 USC§ 1251 et seq.The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will,in turn,report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2)The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 6. LOBBYING 31 USC§1352 49 CFR Part 19 49 CFR Part 20 Applicability to Contracts Federally Required and other Model Contract Clauses 5 The Lobbying requirements apply to Construction/Architectural and Engineering/Acquisition of Rolling Stock/Professional Service Contract/Operational Service Contract/Turnkey contracts. Flow Down The Lobbying requirements mandate the maximum flow down,pursuant to Byrd Anti- Lobbying Amendment,31 USC§1352(b)(5)and 49 CFR Part 19,Appendix A,Section 7. Mandatory Clause/Language -Clause and specific language therein are mandated by 49 CFR Part 19,Appendix A. Modifications have been made to the Clause pursuant to Section 10 of the Lobbying Disclosure Act of 1995,PL 104-65 [to be codified at 2 USC§1601,et seq.] -Lobbying Certification and Disclosure of Lobbying Activities for third party contractors are mandated by 31 USC§1352(b)(5),as amended by Section 10 of the Lobbying Disclosure Act of 1995,and DOT implementing regulation,"New Restrictions on Lobbying," at 49 CFR§20.110(d) -Language in Lobbying Certification is mandated by 49 CFR Part 19,Appendix A,Section 7, which provides that contractors file the certification required by 49 CFR Part 20,Appendix A. Modifications have been made to the Lobbying Certification pursuant to Section 10 of the Lobbying Disclosure Act of 1995. -Use of"Disclosure of Lobbying Activities,"Standard Form-LLL set forth in Appendix B of 49 CFR Part 20,as amended by"Government wide Guidance For New Restrictions on Lobbying," 61 Fed. Reg.1413 (1/19/96) is mandated by 49 CFR Part 20,Appendix A. Byrd Anti-Lobbying Amendment,31 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 any agency,a member of Congress,officer or employee of Congress,or an employee of a member of Congress in connection with obtaining any Federal contract,grant or any other award covered by 31 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 tier up to the recipient. APPENDIX A,49 CFR Part 20--CERTIFICATION REGARDING LOBBYING Certification for Contracts,Grants,Loans,and Cooperative Agreements (To be submitted with each bid or offer exceeding$100,000) Federally Required and other Model Contract Clauses 6 The undersigned [Contractor]certifies,to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid,by or on behalf of the undersigned,to any person for influencing or attempting to influence an officer or employee of an agency,a Member of Congress,an officer or employee of Congress,or an employee of a Member of Congress in connection with the awarding of any Federal contract,the making of any Federal grant,the making of any Federal loan,the entering into of any cooperative agreement,and the extension,continuation,renewal,amendment,or modification of any Federal contract,grant,loan,or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for making lobbying contacts to an officer or employee of any agency,a Member of Congress,an officer or employee of Congress,or an employee of a Member of Congress in connection with this Federal contract,grant,loan,or cooperative agreement,the undersigned shall complete and submit Standard Form--LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions [as amended by"Government wide Guidance for New Restrictions on Lobbying," 61 Fed.Reg. 1413 (1/19/96). Note:Language in paragraph(2)herein has been modified in accordance with Section 10 of the Lobbying Disclosure Act of 1995 (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 fact upon which reliance was placed when this transaction was made or entered into.Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31,USC§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 USC§1352(c)(1)-(2)(A),any person who makes a prohibited expenditure or fails to file or amend a required certification or disclosure form shall be subject to a civil penalty of not less than$10,000 and not more than$100,000 for each such expenditure or failure.] The Contractor, ,certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure,if any. In addition,the Contractor understands and agrees that the provisions of 31 USC§A 3801,et seq.,apply to this certification and disclosure,if any. Signature of Contractor's Authorized Official Name and Title of Contractor's Authorized Official Date 7. ACCESS TO RECORDS AND REPORTS Federally Required and other Model Contract Clauses 7 49 USC§5325 18 CFR§18.36(i) 49 CFR§633.17 Applicability to Contracts Reference Chart"Requirements for Access to Records and Reports by Type of Contracts" Flow Down FTA does not require the inclusion of these requirements in subcontracts. Model Clause/Language The specified language is not mandated by the statutes or regulations referenced,but the language provided paraphrases the statutory or regulatory language. Access to Records-The following access to records requirements apply to this Contract: 1. Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C. F.R.18.36(i),the Contractor agrees to provide the Purchaser,the FTA Administrator,the Comptroller General of the United States or any of their authorized representatives access to any books,documents,papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations,excerpts and transcriptions.Contractor also agrees,pursuant to 49 C. F.R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project,defined at 49 USC§5302(a)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 Recipient or a subgrantee of the FTA Recipient in accordance with 49 CFR§633.17,Contractor agrees to provide the Purchaser,the FTA Administrator or his authorized representatives,including any PMO Contractor,access to the Contractor's records and construction sites pertaining to a major capital project,defined at 49 USC§5302(a)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.Where the Purchaser enters into a negotiated contract for other than a small purchase or under the simplified acquisition threshold and is an institution of higher education,a hospital or other non-profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 CFR§19.48,Contractor agrees to provide the Purchaser,FTA Administrator,the Comptroller General of the United States or any of their duly authorized representatives with access to any books,documents,papers and record of the Contractor which are directly pertinent to this contract for the purposes of making audits,examinations, excerpts and transcriptions. 4. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 USC§5325(a) enters into a contract for a capital project or improvement (defined at 49 USC§5302(a)1)through other than competitive bidding,the Contractor shall make available records related to the contract to the Purchaser,the Secretary of Transportation Federally Required and other Model Contract Clauses 8 and the Comptroller General or any authorized officer or employee of any of them for the purposes of conducting an audit and inspection. 5.The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. 6.The Contractor agrees to maintain all books,records,accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this contract,except in the event of litigation or settlement of claims arising from the performance of this contract,in which case Contractor agrees to maintain same until the Purchaser,the FTA Administrator,the Comptroller General,or any of their duly authorized representatives,have disposed of all such litigation,appeals,claims or exceptions related thereto. Reference 49 CFR§18.39(i)(11). 7. FTA does not require the inclusion of these requirements in subcontracts. Requirements for Access to Records and Reports by Types of Contract Contract Operatio Turnkey Constructs Architectu Acquisitio ; Profession Characteristi nal on ral n of al Services cs Service Engineeri Rolling Contract ng Stock I State Grantees None Those None None None None imposed on a.Contracts state pass below SAT None thru to , Yes,if None None None ($100,000) unlessi Contractor non- unless unless unless non- competitiv non- non- non- b.Contracts competiti e award or competitiv ' competitiv competitiv above ve award if funded e award e award e award $100,000/Ca thru2 pital Projects 5307/5309 /5311 II Non State Grantees Those Yes3 imposed on Yes Yes Yes Yes a.Contracts non-state below SAT Yes3 Grantee Yes Yes Yes Yes ($100,000) pass thru to b.Contracts Contractor above $100,000/Ca pital Projects Sources of Authority: 149 USC§5325 (a) Federally Required and other Model Contract Clauses 9 2 49 CFR§633.17 318 CFR§18.36(i) 8. FEDERAL CHANGES 49 CFR Part 18 Applicability to Contracts The Federal Changes requirement applies to all contracts. Flow Down The Federal Changes requirement flows down appropriately to each applicable changed requirement. Model Clause/Language No specific language is mandated.The following language has been developed by FTA. Federal Changes-Contractor shall at all times comply with all applicable FTA regulations, policies,procedures and directives,including without limitation those listed directly or by reference in the Agreement(Form FTA MA (6) dated October,1999)between Purchaser and FTA,as they may be amended or promulgated from time to time during the term of this contract.Contractor's failure to so comply shall constitute a material breach of this contract. 9. CLEAN AIR 42 USC§7401 et seq. 40 CFR§15.61 49 CFR Part 18 Applicability to Contracts The Clean Air requirements apply to all contracts exceeding$100,000,including indefinite quantities where the amount is expected to exceed$100,000 in any year. Flow Down The Clean Air requirements flow down to all subcontracts 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 Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will,in turn,report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2)The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 10. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT 40 USC§327-333 (1995) Federally Required and other Model Contract Clauses 10 29 CFR§5 (1995) 29 CFR§ 1926(1995) Applicability to Contracts Section 102 of the Act,which deals with overtime requirements,applies to: -all construction contracts in excess of$2,000 and; -all turnkey,rolling stock and operational contracts (excluding contracts for transportation services)in excess of$2,500. (The dollar threshold for this requirement is contained in the current regulation 29 CFR§5.15.) Section 107 of the Act that deals with OSHA requirements applies to construction contracts in excess of$2,000 only.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. Flow Down Applies to third party contractors and subcontractors. Model Clauses/Language Pursuant to Section 102(Overtime): (These clauses are specifically mandated under DOL regulation 29 CFR§5.5 and when preparing a construction contract in excess of$2,000 these clauses should be used in conjunction with the Davis-Bacon Act clauses as discussed previously.For nonconstruction contracts,this is the only section required along with the payroll section.) (1)Overtime requirements-No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (2)Violation;liability for unpaid wages;liquidated damages-In the event of any violation of the clause set forth in paragraph(1) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition,such contractor and subcontractor shall be liable to the United States for liquidated damages.Such liquidated damages shall be computed with respect to each individual laborer or mechanic,including watchmen and guards,employed in violation of the clause set forth in paragraph(1) of this section,in the sum of$10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph(1) of this section. (3)Withholding for unpaid wages and liquidated damages-The (write in the name of the grantee 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 Federally Required and other Model Contract Clauses 11 payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor,or any other federally- assisted contract subject to the Contract Work Hours and Safety Standards Act,which is held by the same prime contractor,such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph(2)of this section. (4)Subcontracts-The contractor or subcontractor shall insert in any subcontracts the clauses set forth in this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts.The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in this section. (Section 102 nonconstruction contracts should also have the following provision:) (5) 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 construction or development of the project).Such records shall contain the name,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 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 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,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 written evidence of the registration 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. Section 107(OSHA): (This section is applicable to construction contracts only) Contract Work Hours and Safety Standards Act-(i)The Contractor agrees to comply with section 107 of the Contract t Work 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 Federally Required and other Model Contract Clauses 12 agrees to perform any part of the labor or material requirements of a contract 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 on 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 construction is a"subcontractor"if the supplier fabricates or assembles the goods or materials in question specifically for the construction 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. 11. NO GOVERNMENT OBLIGATION TO THIRD PARTIES Applicability to Contracts Applicable to all contracts. Flow Down Not required by statute or regulation for either primary contractors or subcontractors,this concept should flow down to all levels to clarify,to all parties to the contract,that the Federal Government does not have contractual liability to third parties,absent specific written consent. Model Clause/Language While no specific language is required,FTA has developed the following language. No Obligation by the Federal Government. (1)The Purchaser and Contractor acknowledge and agree that,notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract,absent the express written consent by the Federal Government,the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Purchaser,Contractor,or any other party(whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. (2)The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified,except to identify the subcontractor who will be subject to its provisions. 12. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS 31 USC§3801 et seq. 49 CFR Part 3118 USC§1001 49 USC§5307 Applicability to Contracts These requirements are applicable to all contracts. Flow Down Federally Required and other Model Contract Clauses 13 These requirements flow down to contractors and subcontractors who make,present,or submit covered claims and statements. Model Clause/Language These requirements have no specified language,so FTA proffers the following language. Program Fraud and False or Fraudulent Statements or Related Acts. (1)The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986,as amended,31 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 contract,the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made,it makes,it may make,or causes to be made,pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable,the Contractor further acknowledges that if it makes,or causes to be made,a false,fictitious,or fraudulent claim,statement,submission, or certification,the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. (2)The Contractor also acknowledges that if it makes,or causes to be made,a false,fictitious,or fraudulent claim,statement,submission,or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 USC§5307,the Government reserves the right to impose the penalties of 18 USC§1001 and 49 USC§5307(n)(1) on the Contractor,to the extent the Federal Government deems appropriate. (3)The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA.It is further agreed that the clauses shall not be modified,except to identify the subcontractor who will be subject to the provisions. 13. TERMINATION 49 USC Part 18 FTA Circular 4220.1D Applicability to Contracts All contracts (with the exception of contracts with nonprofit organizations and institutions of higher education,) in excess of$10,000 shall contain suitable provisions for termination by the grantee including the manner by which it will be effected and the basis for settlement. (For contracts with nonprofit organizations and institutions of higher education the threshold is $100,000.) In addition,such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor. Flow Down The termination requirements flow down to all contracts in excess of$10,000,with the exception of contracts with nonprofit organizations and institutions of higher learning. Federally Required and other Model Contract Clauses 14 Model Clause/Language FTA does not prescribe the form or content of such clauses.The following are suggestions of clauses to be used in different types of contracts: a.Termination for Convenience(General Provision)The City of Port Arthur may terminate this contract,in whole or in part,at any time by written notice to the Contractor when it is in the Government's best interest.The Contractor shall be paid its costs,including contract closeout costs,and profit on work performed up to the time of termination.The Contractor shall promptly submit its termination claim to City of Port Arthur to be paid the Contractor. 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) If the Contractor does not deliver supplies in accordance with the contract delivery schedule,or,if the contract is for services,the Contractor fails to perform in the manner called for in the contract,or if the Contractor fails to comply with any other provisions of the contract,the 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 Contractor is in default.The contractor will only be paid the contract price for supplies delivered and accepted,or services performed in accordance with the manner of performance set forth in the contract. If it is later determined by the 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 Port Arthur,after setting up a new delivery of performance schedule,may allow the Contractor to continue work,or treat the termination as a termination for convenience. c.Opportunity to Cure (General Provision)The City of Port Arthur in its sole discretion may,in the case of a termination for breach or default,allow the Contractor[an appropriately short period of time] in which to cure the defect.In such case,the notice of termination will state the time period in which cure is permitted and other appropriate conditions If Contractor fails to remedy to City of Port Arthur's satisfaction the breach or default or any of the terms,covenants,or conditions of this Contract within[ten(10) days] after receipt by Contractor 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 in any way operate to preclude City of Port Arthur from also pursuing all available remedies against Contractor and its sureties for said breach or default. d.Waiver of Remedies for any Breach In the event that City of Port Arthur elects to waive its remedies for any breach by Contractor 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 term,covenant,or condition of this Contract. Federally Required and other Model Contract Clauses 15 e.Termination for Convenience(Professional or Transit Service Contracts)The City of Port Arthur,by written notice,may terminate this contract,in whole or in part,when it is in the Government's interest.If this contract is terminated,the Recipient shall be liable only for payment under the payment provisions of this contract for services rendered before the effective date of termination. f.Termination for Default(Supplies and Service)If the Contractor fails to deliver supplies or to perform the services within the time specified in this contract or any extension or if the Contractor fails to comply with any other provisions of this contract,the 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 the default.The Contractor will only be paid the contract price for supplies delivered and accepted,or services performed in accordance with the manner or performance set forth in this contract. If,after termination for failure to fulfill contract obligations,it is determined that the Contractor was not in default,the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Recipient. g.Termination for Default(Transportation Services) If the Contractor fails to pick up the commodities or to perform the services,including delivery services,within the time specified in this contract or any extension or if the Contractor fails to comply with any other provisions of this contract,the 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. If 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 agree on an amount will be resolved under the Dispute clause. If,after termination for failure to fulfill contract obligations,it is determined that the Contractor was not in default,the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the City of Port Arthur h.Termination for Default(Construction) If the Contractor refuses or fails to prosecute the work or any separable part,with the diligence that will insure its completion within the time specified in this contract or any extension or fails to complete the work within this time,or if the Contractor fails to comply with any other provisions of this contract,the 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 the default.In this event,the Recipient may take over the work and compete it by contract or otherwise,and may take possession of and use any materials,appliances,and plant on the work site necessary for completing the work.The Contractor and its sureties shall be liable for any damage to the Recipient resulting from the Contractor's refusal or failure to complete the work within Federally Required and other Model Contract Clauses 16 specified time,whether or not the Contractor's right to proceed with the work is terminated. This liability includes any increased costs incurred by the Recipient in completing the work. The Contractor's right to proceed shall not be terminated nor the Contractor charged with damages under this clause if- 1. the delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor.Examples of such causes include: acts of God, acts of the Recipient,acts of another Contractor in the performance of a contract with the Recipient,epidemics,quarantine restrictions,strikes,freight embargoes;and 2. the contractor,within[101 days from the beginning of any delay,notifies the City of Port Arthur in writing of the causes of delay.If in the judgment of 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 if 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 Contractor shall(1) immediately discontinue all services affected (unless the notice directs otherwise),and(2) deliver to the Contracting Officer all data,drawings,specifications,reports,estimates, summaries,and other information and materials accumulated in performing this contract, whether completed or in process. If the termination is for the convenience of the Recipient,the Contracting Officer shall make an equitable adjustment in the contract price but shall allow no anticipated profit on unperformed services. If the termination is for failure of the Contractor to fulfill the contract obligations,the Recipient may complete the work by contact or otherwise and the Contractor shall be liable for any additional cost incurred by the Recipient. If,after termination for failure to fulfill contract obligations,it is determined that the Contractor was not in default,the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Recipient. j.Termination for Convenience of Default(Cost-Type Contracts) The City of Port Arthur may terminate this contract,or any portion of it,by serving a notice or termination on the Contractor.The notice shall state whether the termination is for convenience of the City of Port Arthur or for the default of the Contractor.If the termination is for default,the notice shall state wirr Federally Required and other Model Contract Clauses 17 the manner in which the contractor has failed to perform the requirements of the contract.The Contractor shall account for any property in its possession paid for from funds received from the 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 the termination is for the convenience of the City of Port Arthur,the Contractor shall be paid its contract closeout costs,and a fee,if the contract provided for payment of a fee,in proportion to the work performed up to the time of termination. If,after serving a notice of termination for default,the 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 control of the contractor,the City of Port Arthur,after setting up a new work schedule,may allow the Contractor to continue work,or treat the termination as a termination for convenience. 14. GOVERNMENT-WIDE DEBARMENT AND SUSPENSION (NON-PROCUREMENT) 49 CFR Part 29 Executive 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 from organizations that have been suspended or debarred from receiving Federally assisted contracts. As 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 contractors and that they will require their contractors(and their subcontractors) to make the same certification to them. Flow Down Contractors are required to pass this requirement on to subcontractors seeking subcontracts over$100,000.Thus,the terms"lower tier covered participant"and"lower tier covered transaction"include both contractors and subcontractors and contracts and subcontracts over $100,000. Model Clause/Language (Instructions)The certification and instruction language is contained at 29 CFR Part 29, Appendix B,and must be included in IFB's and RFP's [for inclusion by contractors in their bids or proposals] for all contracts over$100,000,regardless of the type of contract to be awarded. Certification Regarding Debarment,Suspension,and Other Responsibility Matters Lower Tier Covered Transactions(Third Party Contracts over$100,000). Instructions for Certification Federally Required and other Model Contract Clauses 18 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 prospective 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.The prospective lower tier participant shall 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 regulations. 5.The prospective lower tier participant agrees by submitting this proposal that,should the proposed covered transaction be entered into,it shall not knowingly enter into any lower tier covered transaction 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,Suspension,Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction",without modification,in all lower tier covered transactions and in all solicitations 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,or voluntarily excluded from the covered transaction,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 construed to require establishment of system of records in order to render in good faith the certification required by this clause.The knowledge and information of a participant is not required to exceed that which 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 is suspended,debarred,ineligible,or voluntarily excluded from participation 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. Federally Required and other Model Contract Clauses 19 "Certification Regarding Debarment,Suspension,Ineligibility and Voluntary Exclusion- Lower Tier Covered Transaction" (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 transaction by any Federal department or agency. (2)When the prospective lower tier participant is unable to certify to the statements in this certification, such prospective participant shall attach an explanation to this proposal. 15. PRIVACY ACT 5 USC§552 Applicability to Contracts When a grantee maintains files on drug and alcohol enforcement activities for FTA,and those files are organized so that information could be retrieved by personal identifier,the Privacy Act requirements apply to all contracts. 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 FTA. 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§552a. Among other things,the Contractor agrees to obtain the express consent of the Federal Government before the Contractor 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 violation of that Act,apply to those individuals involved,and that failure to comply with the terms of the Privacy Act may result in termination of the underlying contract. (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. 16. CIVIL RIGHTS REQUIREMENTS Federally Required and other Model Contract Clauses 20 29 USC§623,42 USC§2000 42 USC§6102,42 USC §12112 42 USC§12132,49 USC§5332 29 CFR Part 1630,41 CFR Parts 60 et seq. Applicability to Contracts The Civil Rights Requirements apply to all contracts. Flow Down The Civil Rights requirements flow down to all third party contractors and their contracts at every tier. Model Clause/Language The following clause was predicated on language contained at 49 CFR Part 19,Appendix A,but FTA has shorten the lengthy text. Civil Rights-The following requirements apply to the underlying contract: (1) Nondiscrimination-In accordance with Title VI of the Civil Rights Act,as amended,42 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 Contractor agrees that it will not discriminate against any employee or applicant for employment because of race,color,creed,national origin,sex,age,or disability.In addition,the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. (2) Equal Employment Opportunity-The following equal employment opportunity requirements apply to the underlying contract: (a) Race,Color,Creed,National Origin,Sex-In accordance with Title VII of the Civil Rights Act,as amended,42 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. Department 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,and Federal policies that may in the future affect construction activities undertaken in the course of the Project.The Contractor agrees to take affirmative action to ensure that applicants are employed,and that employees are treated during employment,without regard to their race,color,creed,national origin,sex,or age.Such action shall include,but not be limited to,the following: employment,upgrading,demotion or transfer,recruitment or recruitment advertising,layoff or termination;rates of pay or other forms of compensation;and selection for training,including apprenticeship.In addition,the Contractor agrees to comply with any implementing requirements FTA may issue. Federally Required and other Model Contract Clauses 21 (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 FTA 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 Commission,"Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 CFR Part 1630,pertaining to employment of persons with disabilities.In addition,the Contractor agrees to comply with any implementing requirements FTA may issue. (3)The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA,modified only if necessary to identify the affected parties. 17. BREACHES AND DISPUTE RESOLUTION 49 CFR 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 FTA does not prescribe the form or content of such provisions.What provisions are developed will depend on the circumstances and the type of contract. Recipients should consult legal counsel in developing appropriate clauses.The following clauses are examples of provisions from various FTA third party contracts. Disputes-Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of City of Port Arthur's [title of employee].This decision shall be final and conclusive unless within[ten (10)] days from the date of receipt of its copy,the Contractor mails or otherwise furnishes a written appeal to the [title of employee].In connection with any such appeal,the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position.The decision of the [title of employee] shall be binding upon the Contractor and the Contractor shall abide be the decision. Performance During Dispute-Unless otherwise directed by City of Port Arthur,Contractor shall continue performance under this Contract while matters in dispute are being resolved. Federally Required and other Model Contract Clauses 22 Claims for Damages-Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of his employees,agents or others for whose acts he is legally liable,a claim for damages therefor shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage. Remedies-Unless this contract provides otherwise,all claims,counterclaims,disputes and other matters in question between the City of Port Arthur and the Contractor arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually agree,or in a court of competent jurisdiction within the State in which the City of Port Arthur is located. Rights and Remedies-The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties,obligations,rights and remedies otherwise imposed or available by law.No action or failure to act by the City of Port Arthur, (Architect) or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract,nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder,except as may be specifically agreed in writing. 18. TRANSIT EMPLOYEE PROTECTIVE AGREEMENTS 49 USC§5310,§5311,and§5333 29 CFR Part 215 Applicability to Contracts The Transit Employee Protective Provisions apply to each contract for transit operations performed by employees of a Contractor recognized by FTA to be a transit operator. (Because transit operations involve many activities apart from directly driving or operating transit vehicles,FTA determines which activities constitute transit"operations"for purposes of this clause.) Flow Down These provisions are applicable to all contracts and subcontracts at every tier. Model Clause/Language Since no mandatory language is specified,FTA had developed the following language.Transit Employee Protective Provisions. (1)The Contractor agrees to the comply with applicable transit employee protective requirements as follows: (a)General Transit Employee Protective Requirements-To the extent that FTA determines that transit operations are involved,the Contractor agrees to carry out the transit operations work on the underlying contract in compliance with terms and conditions determined by the U.S. Secretary of Labor to be fair and equitable to protect the interests of employees employed under this contract and to meet the employee protective requirements of 49 USC§A 5333(b),and U.S. DOL guidelines at 29 CFR Part 215,and any amendments thereto.These terms and conditions are identified in the letter of certification from the U.S. DOL to FTA applicable to the FTA Recipient's project from which Federal assistance is provided to support work on the Federally Required and other Model Contract Clauses 23 underlying contract. The Contractor agrees to carry out that work in compliance with the conditions stated in that U.S. DOL letter.The requirements of this subsection (1),however,do not apply to any contract financed with Federal assistance provided by FTA either for projects for elderly individuals and individuals with disabilities authorized by 49 USC§5310(a)(2),or for projects for nonurbanized areas authorized by 49 USC§5311.Alternate provisions for those projects are set forth in subsections(b) and(c) of this clause. (b)Transit Employee Protective Requirements for Projects Authorized by 49 USC§5310(a)(2) for Elderly Individuals and Individuals with Disabilities-If the contract involves transit operations financed in whole or in part with Federal assistance authorized by 49 USC§ 5310(a)(2),and if the U.S.Secretary of Transportation has determined or determines in the future that the employee protective requirements of 49 USC§5333(b) are necessary or appropriate for the state and the public body subrecipient for which work is performed on the underlying contract,the Contractor agrees to carry out the Project in compliance with the terms and conditions determined by the U.S.Secretary of Labor to meet the requirements of 49 USC§ 5333(b),U.S.DOL guidelines at 29 CFR Part 215,and any amendments thereto.These terms and conditions are identified in the U.S. DOL's letter of certification to FTA,the date of which is set forth Grant Agreement or Cooperative Agreement with the state.The Contractor agrees to perform transit operations in connection with the underlying contract in compliance with the conditions stated in that U.S. DOL letter. (c)Transit Employee Protective Requirements for Projects Authorized by 49 USC§5311 in Nonurbanized Areas-If the contract involves transit operations financed in whole or in part with Federal assistance authorized by 49 USC§5311,the Contractor agrees to comply with the terms and conditions of the Special Warranty for the Nonurbanized Area Program agreed to by the U.S.Secretaries of Transportation and Labor,dated May 31,1979,and the procedures implemented by U.S.DOL or any revision thereto. (2)The Contractor also agrees to include the any applicable requirements in each subcontract involving transit operations financed in whole or in part with Federal assistance provided by FTA. 19. DISADVANTAGED BUSINESS ENTERPRISE (DBE) 49 CFR Part 26 Applicability to Contracts DEE provisions only apply to all DOT-assisted contracts.Disadvantaged Business Enterprise Provision 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.City of Port Arthur's goals for budgeted service 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 considered pertinent to any Contract Agreement resulting from this request for proposal. Federally Required and other Model Contract Clauses 24 If a specific DBE goal is assigned to this Contract Agreement,it will be clearly stated in the Special Specifications,and if the Contractor is found to have failed to exert sufficient, reasonable,and good faith efforts to involve DBE's in the work provided,City of Port Arthur may declare the Contractor non-complaint end in breach of Contract Agreement.If a goal is not stated in the Special Specifications,it will be understood that no specific goal is assigned to this 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 opportunity to participate in the whole or in part with federal funds provided under this Contract 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 on the basis of race,color,national origin,religion,sex,age or physical handicap 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 Arthur's procurement activities is 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 ensure 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 of 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 Contract 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 of 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: Federally Required and other Model Contract Clauses 25 *Identification of qualified DBE *Available listing of Minority Assistance Agencies *Holding bid conferences to emphasize requirements 2. DBE Program Definitions,as used in the Contract Agreement: (a) Disadvantaged business"means a small business concern": i. Which is at least 51 percent owned by one or more socially and economically disadvantaged individuals,or,in the case of any publicly owned business,at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals;and ii. Whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it. or iii.Which is et least 51 percent owned by one or more women individuals,or in the case of any publicly owned business,at least 51%of the stock of which is owned by one or more women individuals;and iv.Whose management and daily business operations are controlled by one or more women individuals who own it. (b) "Small business concern"means a small business as defined by Section 3 of the Small Business Act and Appendix B- This section is being developed to reflect the new rule in 49 CFR Part 26. 20. STATE AND LOCAL LAW DISCLAIMER Applicability to Contracts This disclaimer applies to all contracts. Flow Down The Disclaimer has unlimited flow down. Model Clause/Language FTA has developed the following language. State and Local Law Disclaimer-The use of many of the suggested clauses are not governed by Federal law,but are significantly affected by State law.The language of the suggested clauses may need to be modified depending on state law,and that before the suggested clauses are Federally Required and other Model Contract Clauses 26 used in the grantees procurement documents, the grantees should consult with their local attorney. 21. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS FTA Circular 4220.1D Applicability to Contracts The incorporation of FTA terms applies to all contracts. Flow Down The incorporation of FTA terms has unlimited flow down. Model Clause/Language FTA has developed the following incorporation of terms language: Incorporation of Federal Transit Administration(FTA)Terms-The preceding provisions include,in part,certain Standard Terms and Conditions required by DOT,whether or not expressly set forth in the preceding contract provisions.All contractual provisions required by DOT,as set forth in FTA Circular 4220.1D,dated April 15,1996,are hereby incorporated by reference.Anything to the contrary herein notwithstanding,all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act,fail to perform any act,or refuse to comply with any (name of grantee)requests which would cause(name of grantee) to be in violation of the FTA terms and conditions.