HomeMy WebLinkAboutPR 16614: A&A ELECTRICAL CONTRACT - WIRING OF MODULAR UNITS FOR TRANSIT TRANSIT DEPARTMENT
INTEROFFICE MEMORANDUM
TO: Steve Fitzgibbons, City Manager
FROM: Debra D. Ambroise, Transit Planner
SUBJECT: P.R. NO. 16614- Electrical Contract
DATE: August 19, 2011
RECOMMENDATION:
I recommend that Proposed Resolution No. 16614 be approved. The resolution would rescind
Resolution No. 11 -288 and authorize execution of an electrical contract between the City of Port
Arthur and A & A Electric Company of Beaumont, Inc., for wiring and removal of wiring for
temporary modular unit(s) for transit renovations in the amount of $6,818.00.
BACKGROUND:
The Transit Service Center will be renovating its existing facilities and will require the employees
be relocated to temporary housing that will require electrical wiring. Patin Electrical was chosen;
but has declined. The next lowest quote is A & A Electric Company of Beaumont, Inc., as shown
below is now being recommended.
CONTRACTOR(S)
Patin's Electrical Certtractors Pert Arthur Texas .$5,890.87
A & A Electric Company Beaumont Texas $6,818.00
Loya Electric ..Port Arthur Texas .$8,532.58
Gulf Coast Electric .Beaumont Texas $9,800.00
Knost Electric Beaumont Texas $11,397.00
StoneBurner Verret Electric ...Port Arthur Texas ..$17,311.00
BUDGETARY /FISCAL EFFECT:
The funds for wiring and removal of wiring the modular unit(s) will be split 50/50 between
account number(s): 401- 1504 - 561.51 -00 and 401 - 1506 - 561.51 -00; operating grant
number TX -90 -X916.
STAFFING /EMPLOYEE EFFECT:
None
SUMMARY:
I recommend that the City Council approve Proposed Resolution No. 16614 authorizing A & A
Electric Company of Beaumont, Inc., to wire and remove the wiring of the modular unit(s) that
will house transit employees throughout the renovation process in the amount of $6,818.00.
Colleen Russell, Director of Transit
P.R. NO. 16614
8/4/2011 DDA
RESOLUTION NO.
A RESOLUTION RESCINDING RESOLUTION NO. 11 -288 AND
AWARDING A CONTRACT TO A & A ELECTRIC COMPANY OF
BEAUMONT, INC., BEAUMONT, TEXAS, FOR WIRING MODULAR
UNIT(S) IN THE AMOUNT OF $6,818.00; THE FUNDS WILL BE SPLIT
50/50 FROM ACCOUNTNUMBER(S): 410- 1504 - 561.51 -00 AND 401 -1506-
561.51 -00; OPERATING GRANT NUMBER TX -90 -X916.
WHEREAS, on July 26, 2011, per Resolution No. 11 -288, Patin's Electrical was awarded a
contract for wiring and removal of wiring the modular unit(s) to house transit employees throughout
the renovation process; and,
WHEREAS, Patin Electrical declined the contract award (see attached Exhibit "A "); and
WHEREAS, A& A Electric Company of Beaumont, Inc., is the next lowest and most responsive
bidder (see quote tabulation attached as Exhibit "B "); and
WHEREAS, the Federal Transit Administration (FTA) has set forth regulations and clauses
(attached hereto as Exhibit "A" to the Contract) that must be followed to utilize Federal funds: now
therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR:
THAT, Resolution No. 11 -288 is herein rescinded.
THAT, the City Manager is hereby authorized to enter into a contract for wiring and removal of
wiring of modular unit(s) for temporary housing for the transit employees with A & A Electric
Company of Beaumont, Inc., in the amount of $6,818.00, in substantially the same form is attached as
Exhibit "C "; and
P.R. 16614
Page 2 of 2
THAT a copy of the caption of this Resolution be spread upon the Minutes of the
City Council.
READ, ADOPTED AND APPROVED this the August, A.D. 2011, at a
Regular Meeting of the City Council of Port Arthur Texas, by the following vote:
AYES: MAYOR:
COUNCIL MEMBERS:
NOES:
Mayor
ATTEST:
Acting City Secretary
APPROVED AS- T.QFORM:
City ttorney
APPROVED FOR ADMINISTRATION: / 1
Nl -'
City Manager 1 •ctor of Transit
• 1((1/1
Purchasing Manager Director of Finance
EXHIBIT "A"
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1 !.:., „ :-,, , , ,, ,,,,y,r nt z z ' Patin's Electrical Contractors 1
F ' i - k :;„,t. , /
,' ',- 43. , k " „ «;.. ,,. 4 '','', , :,. Phone: 409- 344 -3244
r1. nx . -i E -mail: eddiepatin @yahoo.cont
To the City of Port Arthur
Mr. Butch Haas, Port Arthur City Inspector
RE: Contract for Electrical Services for the Port Arthur City Transit
I would like to first thank the City for entrusting this project to my company. It is refreshing to know that my
city has not forgotten the small businessmen who live, work, eat and sleep in this city. This is the place that !
call "home ". Initially, 1 was elated to learn that my company was successful in obtaining the $7-7#304:00 hid.
This would allow me to employ additional local workers who also live in the area. R5, 3 VC= `II f
With that being said, it is with deep regret that I must decline the opportunity to service my city by lulfillirn,
the above - mentioned contract. Unfortunately, I was unaware of the city's practice of withholding the finances
for a contract until the project has been completed. In this present economic state, it is imperative that I, as an
entrepreneur and small business owner, receive at least 50% of the contracted amount in order to complete this
project. Without those funds, I am unable to hire the additional workers that will be needed and I will be un-
able to obtain all of the necessary supplies.
It is unfortunate that I will not be able to serve my city by providing this service. However, I pray that 1 will be
in position to do my part in making our city the greatest place to live in Southeast Texas should additional op-
portunities present themselves to me.
Prayerfully,
tp
' - i (1
Eddie Patin [II
CEO and Owner
Patin's Flectrical Contractors
EXHIBIT "B"
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EXHIBIT "C"
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
CONTRACT
FOR ELECTRICIAN SERVICES
FEDERAL /STATE FUNDS
PART I — AGREEMENT
THIS AGREEMENT, entered into as of this day of 2011, by and
between the City of Port Arthur, Port Arthur, Texas (hereinafter called the "CITY ") acting herein
by its Mayor, duly authorized by Resolution of the City Council of the City of Port Arthur and
A & A Electric Company of Beaumont, Inc., (hereinafter called the "ELECTRICIAN ") acting
herein by Lee Acevedo, Jr., hereunto duly authorized:
WITNESSETH THAT:
WHEREAS, the CITY desires to engage the Electrician to (1) render certain electrical
and professional services hereafter described in "Description of Work to be Performed "; the
Parties hereto do mutually agree as follows:
1. EMPLOYMENT OF ELECTRICIAN
The CITY hereby agrees to engage the ELECTRICIAN and the ELECTRICIAN hereby
agrees to perform the "Description of Work To Be Performed" hereinafter set forth. This
contract shall be performed in Jefferson County, Texas.
2. DESCRIPTION OF WORK TO BE PERFORMED
Electrical services in connection with the wiring and removal of wiring a double -wide
modular unit that will be used to house Transit employees throughout the Renovation of
Transit Service Building and Transfer Center at Dallas Ave & 4 Street.
The services rendered by ELECTRICIAN for the Project is as follows:
• Supply power to (2) 100 amp service panel with main breaker.
• Install 120 volt with battery back -up smoke detectors in areas specified.
• Install emergency /exit combo lights for entrance ways.
• Install 40 amp A/C unit disconnect switch.
• Install 2 -4 tray cable from existing panel in building to each modular building service
panel.
3. DESCRIPTION OF MATERIAL IN SQUARE FEET
#2 Cooper Wire ...20ft.
5/8" Rod Clamp 2ea.
100 amp bolt -on square D pole breaker 2ea
Emergency /exit combo light fixtures 3ea
DESCRIPTION OF MATERIAL IN SQUARE FEET CON'TD
4" Octagon Boxes 2ea.
5/8" x 8' Ground Rod 1 ea.
#3 -4 Conductors Tray Cable THWN 360ft.
5/8" Ground Rod Clamp 2ea.
Smoke Detector with Battery Back -Up Bea.
2" PVC Conduit LB Fittings .2ea.
Weatherproof Receptacle with covers 3ea.
2" PVC Schedule 80 Conduit 20ft.
2" Cable CGB Connectors .4ea.
4. TOTAL COST OF WORK
The total cost of wiring and removal of wiring a double -wide unit that will
house Transit employees during the Renovation of the Transit Service Center and
Transfer Center located at Dallas Ave. and 4th Street; including the above description of
services /material is $6,818.00.
ACCEPTED: PROPOSED AND AGREED TO:
CITY: ELECTRICAL CONTRACTOR:
CITY OF PORT ARTHUR, TEXAS
City Manager
DATE: DATE:
ATTEST:
ATTEST:
City Secretary
APPROVED AS TO FORM:
City Attorney
EXHIBIT "A" TO CONTRACT
IN ADDITION TO ELECTRICIAN EXECUTING THIS
CONTRACT, THE ELECTRICIAN IS REQUIRED TO SIGN PAGE 6
OF THE FEDERAL TRANSIT ADMINISTRATION REGULATIONS
AND CLAUSES FOR FEDERALLY FUNDED PROJECTS.
Table of Contents
1. Drug and Alcohol Testing
2, Charter Bus Requirements
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.
Federally Required and other Model Contract Clauses 2
1. DRtiC; AND ALCOHOL TESTING
49 L.S.C.: \5331
49 CFR Pars 653 and 654
Applicability- to contracts
' f i l e Drug and Alcohol testing provisions apply to Operational Service Contracts.
Flow Downs 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.
Nlaintenance contractors for non - urbanized area formula program grantees are not subject to
t}i? rules. Also, the rules do not apply to maintenance subcontractors.
M add Clause/ Language
Introduction
FTA's drug and alcohol rules, 49 CFR 653 and 654, respectively, are unique among the
regulation. . issued by FTA. First, they require the City of Port Arthur to ensure that any entity
per :ornun , .i 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
Farts 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 ��ity of Port Arthur ensures that its subrecipients and /or contractors comply with there.
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 i ts 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
/i,ssurianees for Federal Transit Administration Grants and Cooperative Agreements," which is
published ulnually 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
S'taternent 1'ie 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
cope of its Policy Statement developed to implement its drug and alcohol testing program. In
audition, 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 Ott jeer, or the use of a consortium).
Federally Required and other Model Contract Clauses 3
2. CFTARTER 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.
Cl >.arter Service Operations - The contractor agrees to comply with 49 USC § 5323(d) and 49 CFR
Part 604, w flich 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
4S USC § 5323(F)
49 CFR Part 605
Applicability to Contracts
The School Bus requirements apply to the following type of contract: Operational Service
Cmtracts_
Flow Down Requirements
The Schoo i 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
6 11 win/; 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
landed ecuiprnent, vehicles, or facilities.
4. ENERGY CONSERVATION REQUIREMENTS
Federally Required and other Model Contract Clauses 4
42 USC § 1) ;21 et sect.
4ci C FR Part 18
Ar)p1ica biiihv to Contracts
I1 Energy Conservation requirements are applicable to all contracts.
Flow Do\\ n
'1 he Enerp_v Conservation requirements extend to all third party contractors and their contracts
at every tier and suhrecipients and their subagreements at every tier.
Cla,o;e /Language
No peci clause is recommended in the regulations because the Energy Conservation
rep uiremernts are so dependent on the state energy- conservation plan. The following language
has'ddeen developed by FTA.
1 ergv (u.tservation - The contractor agrees to comply with mandatory standards and policies
re!ating to rnergy efficiency which are contained in the state energy conservation plan issued in
compliane , .vith the Energy Policy and Conservation Act.
5. CLEAN WATER REQUIREMENTS
?? - LSC 1 L151
JApplicabiiity to Contracts
The Clean 'Water requirements apply to each contract and subcontract which exceeds $100,000.
How Dow!
The Clean ',Vater requirements flow down to FTA recipients and subrecipients at every tier.
11 ! e 1 Cla use / 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.
C1 att tVate r - { 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 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
notil l ation to FTA an c.I the appropriate EPA Regional Office.
.l 1 he Cot [tractor also agrees to include these requirements in each subcontract exceeding
$ 1 il0, 100 financed in whole or in part with Federal assistance provided by FTA.
r.. 1 OBB'i ING
31 1 1352
49 CFR fart 19
49 CFR Parr. 20
A ppliciabili-v to Contracts
Federally Required and other Model Contract Clauses 5
Tire Lobbying requirements apply to Construction /Architectural and Engineering /Acquisition
cf Rolling Stock /Professional Service Contract /Operational Service Contract /Turnkey
contracts.
F1 w Dog -v 11
11 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.
Mandator c 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
c >f 19c;v, PL. 104 -65 [to be codified at 2 USC 1601, et seq.]
- 1 othbviner Certification and Disclosure of 1 obbving Activities for third party contractors are
mandated by 31 USC 4 1352(b)(5), as amended by Section 10 of the Lobbying Disclosure Act of
1(...95, and 1)OT implementing regulation, New Restrictions on Lobbying," at 49 CFR § 20.110(d)
- l .anguag. 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.
- tL ,c of '' Disclosure of Lobbying Activities,' Standard Form -LLL set forth in Appendix B of 49
CPR 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.
Bird Anti- Lobbying Amendment, 31 USC § 1352, as amended by the Lobbying Disclosure Act
f 1995, PL 104 -65 [to be codified at 2 USC § 1601, et seq.] - Contractors who apply or bid for an
avc-ard of `3100,000 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
F < deral 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
C1i uigress ur an employee of a member of Congress in connection with obtaining any Federal
ci ntract, grant or any other award covered by 31 USC § 1352. Each tier shall also disclose the
n_ane of ar y registrant under the Lobbying Disclosure Act of 1995 who has made lobbying
cc ntacts on its behalf with non - Federal funds with respect to that Federal contract, grant or
award cov,!red by 31 USC § 1352. Such disclosures are forwarded from tier to tier up to the
reccipient.
A PP N Di A, 49 CFR Part 20-- CERTIFICATION REGARDING LOBBYING
C. rnficatuon for Contracts, Grants, Loans, and Cooperative Agreements
C; c, rrr �rthuittc I with each bid or offer exceeding $100,000)
Federally Required and other Model Contract Clauses 6
Thy? 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) Ti 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—ILL, "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
to ilu re.
[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.]
T1e 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
a
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
4' USC c 5325
18 CFR § 18.36 (i)
49 CFR § 633.1.7
Applicability to Contracts
Reference Chart "Requirements for Access to Records and Reports by Type of Contracts"
FlovA Down
FTA does not require the inclusion of these requirements in subcontracts.
\ 'udel Clause/ Language
" le specie: ed 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 provid the FTA Administrator or his authorized representatives including any PMO
Contractor access to Contractor's records and construction sites pertaining to a major capital
pr oject de .'ined at 49 USC § 5302(a)1, which is receiving federal financial assistance through the
1?: ogra ms 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
L § 5302(1)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 ilk, Purchaser enters into a negotiated contract for other than a small purchase or
u nder 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
, 1,_1nninistrator, the Comptroller General of the. United States or any of their duly authorized
re,nesentati es with access to any books, documents, papers and record of the Contractor
wyhich are directly pertinent to this contract for the purposes of making audits, examinations,
excerpts and transcriptions.
4. Av,here any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in
accordanc 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
mike 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 cif 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 Constructi Architectu Acquisitio ! Profession
Characteristi nal on ral n of al Services
. c s Service Engineeri Rolling
Contract ng Stock
I State
Grantees None Those None None , None None
imposed on
. Contracts state pass
below SAT None thru to Yes, if None None None
($1t)0,00,)i . unless Contractor non- unless unless unless
non- , competitiv non- non- non -
b. Con tr j.:ts competiti e award or competitiv competitiv r . competitiv
above ve award if funded ! e award e award e award
51 00,000/ Ca thru'-
pital Projects 5307/5309
/5311
Gram Non State #
Those
Yes imposed on Yes Yes Yes Yes
a. Contracts non -state
belowv SAT Yes Grantee 1 Yes ' Yes ( Yes Yes
($100,000j pass thru to
b. Contracts Contractor
above
5100,000/ Ca
pital Projects
Sources of Authority:
49 USC § 5325 (a)
Federally Required and other Model Contract Clauses 9
14
CFR §I h33.17
18 CFR 5 18.36 (i)
8. FEDERAL CHANGES
9 CFR fart 18
; pplicab.Lty to Contracts
The 'Federal Changes requirement applies to all contracts.
flow Down
I he Federal Changes requirement flows down appropriately to each applicable changed
requirement.
lode! CDuse /Language
<o 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,
1- ohues, procedures and directives, including without limitation those listed directly or by
reference In the Agreement (Form ETA MA (6) dated October, 1999) between Purchaser and
FT 2:\ , 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.
C:LEiA:1 AIR
42 L'SC ti 7-101 et seq.
40 CFR 5 15.6 "1
40 CFR Part 18
Applicability to Contracts
'he Clean yir requirements apply to all contracts exceeding 8100,000, including indefinite
quantities where the amount is expected to exceed 5100,000 in any year.
Flow Down
The glean Air requirements flow down to all subcontracts that exceed 8100,000.
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
re:luiations 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 ��ill in turn, report each violation as required to assure notification to FTA and the
ap p ropriate EPA Regional Office.
(2 - File Contractor also agrees to include these requirements in each subcontract exceeding
51;)0,000 financed m whole or in part with Federal assistance provided by FTA.
10 CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
40 L:SC 5 : 27 -333 (1995)
Federally Required and other Model Contract Clauses 10
29 CFR § 5 (1995)
29 CFR § 1926 (1995)
A Tlicability 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
atchrnen 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
1erntiitted 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.
illithholding 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
:epresentatiive 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:)
(ll.) 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
n echanic 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
program.
Section 107 (OSHA):
(This section is applicable to construction contracts only)
L entract Work Hours and Safety Standards Act - (i) The Contractor agrees to comply with
section 10I 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
.)2(l). Among other things, the Contractor agrees that it will not require any laborer or mechanic
tc work in unsanitary, hazardous, or dangerous surroundings or working conditions.
(h)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,
al teration 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.
1 NO GOVERNMENT OBLIGATION TO THIRD PARTIES
Applicability to Contracts
Applicable to all contracts.
Flow Down
Not required by statute or regulation for either primary contractors or subcontractors, this
concept should flow down to all levels to clarify, to all parties to the contract, that the Federal
Government does not have contractual liability to third parties, absent specific written consent.
Model Clause /Language
While no specific language is required, FTA has developed the following language.
No Obligation by the Federal Government.
(1) The Purchaser and Contractor acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the
underlying contract, absent the express written consent by the Federal Government, the Federal
Government is not a party to this contract and shall not be subject to any obligations or
liabilities to the Purchaser, Contractor, or any other party (whether or not a party to that
contract) pertaining to any matter resulting from the underlying contract.
(2) 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.
lam'. PROC AM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED
ACTS
USC fi 3801 et seq.
49 CFR Part 31 18 USC § 1001
40 USC § '530
Appiicability to Contracts
These requirements are applicable to all contracts.
Fo�.v 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
ccntract 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
ex tent 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 510,000 shall contain suitable provisions for termination by the
g :antee including the manner by which it will be effected and the basis for settlement. (For
contracts 1.vith nonprofit organizations and institutions of higher education the threshold is
$ [00,000.) 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.
F tow 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
p_omptly 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
n av 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
feu- 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 anv covenant, term or condition of this Contract, such
arver 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. `I-ermination 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
p,ryment 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
tray 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
u as 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
curnnodities or to perform the services, including delivery services, within the time specified in
tiers contrac: 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 shalt 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 Recipien.t 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 with :in 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,
ac is of the Recipient, acts of another Contractor in the performance of a contract with the
Recipient. epidemics, quarantine restrictions, strikes, freight embargoes; and
2. the contractor, within [10] days from the beginning of any delay, notifies the 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.
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)
inunediately 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
o- rmination had been issued for the convenience of the Recipient.
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
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
fern, 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 he 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
A pplicabi1ity 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 vear, 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
5i00,000.
N.iodel 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
of proposals] for all contracts over $100,000, regardless of the type of contract to be awarded.
Certification Regarding Debarment, Suspension, and Other Responsibility Matters
tower 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
el igibility 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 h 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 j`: 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.
15 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.
ARplicdbility to Contracts
The Civil Rights Requirements apply to all contracts.
F1:,w 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.
(2j 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. h1 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.
(t Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as
amended, 42 USC 412112, 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.
1 BREACHES AND DISPUTE RESOLUTION
4c CFR Part 18
FTA. Circular 4220.1D
App icabil to Contracts
All contracts in excess of S100,000 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 Dowrl
The Breaches and Dispute Resolutions requirements flow down to all tiers.
N i oriel 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 anv 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 part:\ 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
tc act constitute an approval of or acquiescence in any breach thereunder, except as may be
spec ficaik agreed in writing.
18. 'TRANSIT EMPLOYEE PROTECTIVE AGREEMENTS
4° USC § 5310, § 5311, and § 5333
29 :MFR 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:
al 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
()w-i 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 §
510(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 §
5533(h), 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 m 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)
499 CFR Part 26
Applicability to Contracts
DEE provisions only apply to all DOT- assisted contracts. Disadvantaged Business Enterprise
Provision
;. The Federal Fiscal Year goal has been set by City of Port Arthur in an attempt to match
p -ojected 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
1C16(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.
(ee) 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 hid conferences to emphasize requirements
2. DBE Program Definitions, as used in the Contract Agreement:
(a t Disadvantaged business "means a small business concern ":
i. ✓Vhich 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
wi -ich 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.
of
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
a.pplicabitily to Contracts
This disclaimer applies to all contracts.
Flow I:)own
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 :n 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
Th.e incorporation of FTA terms applies to all contracts.
Flow Down
The incorporation of FTA terms has unlimited flow down.
N'Iod.el Clause/ Language
FTA has developed the following incorporation. of terms language:
hcorporation 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
rei erence. 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.