HomeMy WebLinkAboutPR 17302: CONTRACT WITH CIVIL CONCEPTS CITY OF PORT ARTHUR
TRANSIT DEPT.
TO: FLOYD T. JOHNSON, CITY MANAGER AND CITY COUNCIL
FROM: COLLEEN W. RUSSELL, TRANSIT DIRECTOR
SUBJECT: P.R. NO. 17302- CONTRACT FOR PROFESSIONAL SERVICES WITH CIVIL CONEPTS, INC.
DATE: 10/16/2012
BACKGROUND:
The City of Port Arthur desires to engage the engineering services of Civil Concepts,
Incorporated to execute a three- fold plan:
(1) Render technical and professional services as to slab design as described in the "Scope of
Work"
(2) Perform oversight of construction as described in "Scope of Work ", as well as
(3) Work with all third parties and the City as to scheduling meetings, testing and evaluate
finished product as to obtaining a certificate of completeness for shelter slabs and ramp
construction.
This Agreement will be entered into as of October 2012, between the City of Port Arthur and
Civil Concept Incorporated for professional services to design and oversee nine (9) shelter slabs
for Port Arthur Transit.
BUDGETARY /FISCAL EFFECT:
Compensation for both services to include third party consultation is $45,550.00. This amount is
from grant TX90 -X916 and is in account 401 - 1509 -561 - 89.00 that are Federal Transit
Administration allocated funds at 80% and The City's share at 20 %.
STAFFING /EMPLOYEE EFFECT:
Port Arthur Transit Department will be in compliance with Title VI and ADA requirements for
sidewalk access.
RECOMMENDATION /SUMMARY:
Recommend that Proposed Resolution No. 17302 be approved so that the work may proceed for
9 shel .- _ to a elate 1,aalled at the 9 sites mentioned in the resolution.
_ I
Colleen W. Russell, Transit Director
P.R. No. 17302
9/22/2012CWR
WHEREAS, City Council finds it to be in the best interest of the citizens of Port Arthur to
approve the contract with Civil Concepts, Inc., of Pasadena, Texas, for the survey /design
and oversight of the construction of nine (9) shelter slabs for Port Arthur Transit
Department, in an amount not to exceed $45,550.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PORT ARTHUR THAT:
Section 1. That the facts and opinions of the preamble are true and correct
Section 2. That the City Manager of the City of Port Arthur is hereby authorized
To enter into a contract with Civil Concepts, Inc., of Pasadena, Texas, on behalf of the City
of Port Arthur for survey /design and oversight of the construction of (9) nine shelter slabs
that are accessible under Texas Accessible Standards (TAS), as delineated in Exhibit "C" for
$45,550 .
READ, ADOPTED AND APPROVED this day of October 2, A. D. 2012,
at a Regular Meeting of the City Council of the City of Port Arthur, Texas, by the following
vote: AYES:
Mayor:
Council members:
•
•
NOES:
Deloris "Bobbie" Prince, Mayor
P.R. No. 17302
9/22/2012CWR
ATTEST:
Sherri Bellard, City Secretary
API's ROVED S TO FORM:
.0
Va ecia R. Tizeno, Cit ttorney
APPROVED FOR ADMINISTRATION:
Flo d T. Johns.e n City anager
II I_ 1I (Asf
Colleen Russel ,Director o 'Transit
CL_OOLN}
Shawna Tubbs, Purchasing Manager
APPROVED AS TO AVAILABILITY OF FUNDS:
Director of Finance
(Account- 401 -1509- 561- 89 -00)
Exhibit " A"
DELORIS `BOBBIE" PRINCE, MAYOR FLOYD T. JOHNSON,
WILLIE "BAE" LEWIS, MAYOR PRO TEM CITY MANAGER
Energy
COUNCILMEMBERS: City of City SHERRI BELLARD
RAYMOND SCOTT, JR. CITY SECRETARY
ELIZABETH "LIZ" SEGLER
:::: G�
ort
Texas
VALECIA TIZENO
ROBERT E. WILLIAMSON CITY ATTORNEY
DERRICK FREEMAN
KERRY THOMAS
September 24, 2012
Civil Concepts, Inc.
3425 Federal Street
Pasadena, Texas 77504
Re: Requesting Civil Concepts Waiver for 150 mph wind load construction for nine shelter
slabs
Dear Civil Concepts:
The City of Port Arthur waives the 150 mph wind load design requirement for subject bus
shelter foundation. The foundation should be designed for 120 mph wind load to conform to
the current foundation wind load agreement for structures within the City.
After discussions last Wednesday, September 21, 2012 with your representative Jay Hyle,
Senior Engineer and The City Building Inspections Department a decision was reached to use
the 120 mph wind load.
This letter is to confirm the City's decision and give permission for design and construction at
such a wind load. Valecia Tizeno, The Attorney is also been advised of the decision.
Hence, this permission will accompany your contract and terms that are attached for City
Council review and approval.
Respectfully,
John A. Comeaux, P.E., Asst. City Manager, Operations
C: City Attorney Office
Files of - Building Inspections, Engineering and Transit
P.O. BOX 1089 • PORT ARTHUR, TEXAS 77641 - 1089.409/983 -8138 • 409- 982 - 5318
CPVIL CONCEPTS INC.
3425 Federal Street Pasadena, Texas 77504
Phone 713- 947 -6606 Fax 713 -947 -6609
www.civiiconcepts.com
September 21, 2012
TO: City of Port Arthur City Council
444 4 Street
PO Box 1089
Port Arthur, Texas 77641 -1089
RE: Bus Stop Shelters Concrete Slabs
Dear Council Members
To design and construct the concrete slabs and sidewalk for the proposed bus stop
locations will require additional engineering services other than civil engineering design.
The other services will include surveying for the metes and bounds for easements as well
as a topographical survey for the required existing elevations to ensure positive drainage
and ADA acceptable slopes. The ADA slopes will also have to be reviewed by a third
party reviewer, Registered Accessibility Specialist Review; this is required by the State
of Texas. A geotechnical testing lab will also be required to determine the existing soils
conditions for the required wind loads, and to ensure that the concrete being used meets
the required strengths.
If you . ave any further questions please contact me,
/
/ f
Jay v
Sr. ; aesigner
Civil Concepts, Inc
j.hyle@civilconpets.com
Exhibit "B"
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
CONTRACT
FOR PROFESSIONAL SERVICES
FEDERAL /STATE FUNDS
PART I — AGREEMENT
THIS AGREEMENT, entered into as of this day of 2012, 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
Civil Concepts, Inc., (hereinafter called the "ENGINEER ") acting herein by Richard W. Cansler,
president is hereunto duly authorized:
WITNESSETH THAT:
WHEREAS, the CITY desires to engage the ENGINEER to (1) render certain technical
and professional services hereafter described in "Scope of Services" or (2) perform certain work
hereafter described in "Scope of Services "; the Parties hereto do mutually agree as follows:
1. EMPLOYMENT OF ENGINEER
The CITY hereby agrees to engage the ENGINEER and the ENGINEER hereby agrees to
perform the "Scope of Services" hereinafter set forth. This contract shall be performed in
Port Arthur, Jefferson County, Texas.
2. SCOPE OF SERVICES
ENGINEERING services in connection with the preparation of plans and specifications
and construction phase services, including design, production documents, and resident
project representation for the following described project(s), to wit: 9 concrete shelter
slabs and ADA ramps at the following sites listed -
• 4900 Gulfway Drive
• 1100 Stadium Road
• 5200 Gulfway Drive
• 1800 Jefferson Drive
th
• 5860 9 Avenue
• 3200 Turtle Creek
• 8100 Honeywood Trail
th
• 7601 9 Avenue
• Twin City Highway (FM365 Feeder Road)
The services rendered by ENGINEER for the Project to be designed for construction are
divided into three (3) distinct and sequential phases as follows:
1. Design Phase - Preliminary conferences, studies, layouts, and cost estimates
2. Contract Phase - Preparation of plans, specifications for bid and consultation on
contract documents
3. Construction Phase Services — make periodical visits to inspect work, certified
payroll, review all materials and payments; closeout projects and documents
Certain elements of the ENGINEER work are covered under the Basic Services; others are
performed as Additional Services. Those elements of the ENGINEERING work which cannot be
accurately predetermined or controlled entirely by the ENGINEER are performed as Additional
Services.
The beginning of each phase of Basic Services or each Additional Service must be authorized in
writing by the CITY. These phases are expanded in the scope of work : (EXHIBIT "B ")
A. DESIGN PHASE SERVICES
1. Attend preliminary conferences with the Client and other interested parties regarding
the facilities proposed.
2. Prepare preliminary information on the individual project contemplated in sufficient
detail to indicate general problems involved and the alternative solutions available to
the client and to include preliminary layouts for cost estimates, and the feasibility of
the Project, if required
— -- 3. Use best to the in obtaining easements - andior Access — Agreements
for required site locations. In the event an easement or access agreement can not be
obtained beyond the Engineer's control, then the task shall be deemed complete.
4. Provide Boundary and/or Topographic Survey of the sites to be improved.
5. Provide site specific geotechnical reports.
6. Prepare detailed plans and contract drawings that are signed and sealed by a Texas
Licensed Professional Engineer for the Project.
7. Prepare detailed estimates of probable construction cost, based on past bid tab unit
costs. The Engineer shall not be required to guarantee the accuracy of the pricing.
8. Furnish to the Client all necessary copies of plans, notices to bidders, and proposal
forms.
9. Use best efforts to assist the Client to obtain necessary approvals from the appropriate
city, county, state and federal agencies having jurisdiction over the Project. In the
event the plans are not approved by any agency because they do not conform to the
agency's criteria, the Engineer shall re- design the plans to conform to such criteria at
no cost to the Client. If the Engineer and/or his Project Representative is unable to
obtain approval of the plans due to recording of easements, subordinates, special -non-
standard features requested by the Client, or other factors beyond the Engineer's
control, then the plans shall be deemed complete and approved.
10. Prepare as a part of the Construction Plans. The Stormwater Pollution Plan Sheets, a
formal report, Notice of Intent and Notice of Termination will be included for the
paving and underground Contract.
11. Provide basic Traffic Control Plans as necessary for roadways being affected by
construction for Public Works review.
12. Provide "Final Drawings" in a PDF format for Engineering and Building Inspections
(2 sets).
B. CONTRACT PHASE SERVICES
1. Assist the Client in the advertisement of the project for bid.
2. Assist the Client in the opening and tabulation of bids for construction of the Project,
and consult with the Client as to the ro er action to be taken p to en based on the
engineering considerations involved.
3. Review contractor's qualification statement and advise the Client of information
gathered during the review. Provide letter of award and recommendation.
4. Assist in the execution of formal construction contract documents
C. CONSTRUCTION PHASE SERVICES
1. Make periodical visits to the site to inspect work
2. Review material submittals
3. Be available to answer contractors questions
4. Review contractor payment request and verify construction progress
5. Provide Geotechnical Review of construction work
6. Assist in closing out project and close out documents
D. ADDITIONAL SERVICES
• Services include daily Project Management and coordination with other nearby projects.
• Special investigations involving detailed consideration of operation, maintenance, and
overhead expenses as required for certification of force account construction
performed by the Client or Contractor.
• Design services pertaining to special structures within the project.
E. BASIS OF COMPENSATION
1. Engineering Services
A. Engineering Design Fee: $ 25,050.00
Topographical Survey: $ 5,000.00
Geotechnical Report and Testing: $ 14,000.00
Registered Accessibility Specialist Review: $ 1,500.00
Total Fees: $ 45,550.00
B. Service Billing Phasing:
Design 65% $29,607.50
Contract 10% $ 4,555.00
Construction 25% $11,387.50
Total 100% $45,550.00
C. Hourly Billing Rate:
Principle $125.00
Senior Engineer $125.00
-- — -- — Design Engineer Engineering CAD Technician $ 75.00
Surveyor $125.00
Field Crew $125.00
Construction Inspector $ 75.00
2. Additional Services
Fees to be based and billed on atime and material basis in accordance with the
above Schedule of Hourly Rates or a lump sum basis agreed upon at the time
the work is authorized.
3. Reimbursable Expenses
A separate charge that includes actual expenses incurred by Engineer or
Engineer's independent professional associate or consultants directly or
indirectly in connection with the Project, if requested by the client.
•
F. Schedule of Payments
Fees to be invoiced on the given percentage rates
G. Schedule of Performance
The Project design will be completed in the Project Schedule supplied after the
"Notice to Proceed" is issued pending outside review.
, 4. OWNERSHIP OF DOCUMENTS
All documents, including original drawings, estimates, specifications, field notes and data
are property of CITY. ENGINEER may retain reproducible copies of drawings and other
documents.
All documents, including drawings g g and specifications prepared by ENGINEER are
instruments of service in respect to the project. They are not intended or represented to be
suitable for reuse by CITY or others on extensions of the Project or on any other project
without written verification or adaption by ENGINEER for the specific purpose intended.
Any such verification or adaption will entitle ENGINEER to further compensation at
rates to be agreed upon by CITY and ENGINEER.
5. INSURANCE
All insurance must be written by an insurer licensed to conduct business in the State of
_- - _ __ - _ -_ _ _ __ __ Texas,. unless_otherwise-_permittedh_y_ Owner.._ The_ENGINEER-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 (no insurance policy or certificate of insurance required below
shall contain any aggregate policy year limit unless a specific dollar amount (or specific
formula for determining a specific dollar amount) aggregate policy year limit is expressly
provided in the specification below which covers the particular insurance policy or
certificate of insurance):
1. Standard Worker's Compensation Insurance (with Waiver of Subrogation in favor of
the City of Port Arthur, its officers, agents and employees.)
2. Commercial General Liability occurrence type insurance. (No "XCU" restrictions
shall be applicable.) Products /completed operations coverage must be included, and
the 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.
b. Property Damage $100,000 per occurrence.
c. Minimum aggregate policy year limit $1,000,000.
3. Commercial Automobile Liability Insurance (including owned, non -owned and hired
vehicles coverages).
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.
4. Contractual Liability Insurance covering the indemnity provision of this contract in
the same amount and coverage as provided for Commercial General Liability Policy,
specifically referring to this Contract by date, job number and location.
5. ENGINEER also agrees to maintain Professional Liability Insurance coverage of
$250,000 minimum per occurrence /claim/policy year aggregate limits against
ENGINEER for damages arising in the course of, or as a result of, work performed
under this Contract. Coverage shall continue for a minimum of two (2) years after the
ENGINEER'S assignment under this Contract is completed. Errors of Omission
liability applies.
6.
ENGINEER shall cause ENGINEER'S insurance company or insurance agent to fill
in all information required (including names of insurance agencies, ENGINEER and
I k 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 a valid
certificate of insurance the CERTIFICATE OF INSURANCE Form attached to and
made a part of this Contract, and pertaining to the above listed Items 1,2,3,4, and 5;
and before commencing any of the work and within the time otherwise specified,
ENGINEER shall file said completed Form with the CITY. None of the provisions in
said Form shall be altered or modified in any respect except as herein expressly
Y p � p Y
authorized. Said CERTIFICATE OF INSURANCE Form contains a provision that
coverages afforded under the policies will not be altered, modified or cancelled unless
at least fifteen-(15) en- been given to the
s fte 1 (5) days prior written notice has be n In CITY. ENGINEER
shall also file with the CITY valid CERTIFICATE(s) OF INSURANCE on like form
from or for all Subcontractors and showing the Subcontractor(s) as the Insured. Said
completed CERTIFICATE OF INSURANCE Formes) shall in any event be filed with
CITY not more than ten (10) days after execution of this Contract.
Deductible on policy for Professional Liability shall not exceed $ 5,000 unless
specifically approved by the Owner.
6. PROFESSIONAL LIABILITY
A. ENGINEER shall be responsible for the use and employment of reasonable skill and
care befitting the profession in the designs, drawings, plans, specifications, data, reports
and designation of materials and equipment provided by ENGINEER for the Project
•
covered by this Contract. Approval by CITY shall not constitute nor be deemed a release
or waiver of the responsibility and liability of ENGINEER for the accuracy and
competency of such designs, drawings, plans, specifications, data, reports and
designation of materials and equipment. Contractor will be responsible for the actual
supervision of Construction operations and safety measures involving the work, his
employees and the public, but the ENGINEER will advise the Contractor of any items
requiring the attention and action of the Contractor.
B. If services include periodic visits to the site to inspect work performed by another
Contractor, ENGINEER is responsible for exercising reasonable care and skills befitting
the profession to assure that the Contractor performs the work in accordance with
Contract Documents and to safeguard the CITY against defects and deficiencies in the
work; provided, however, ENGINEER does not guarantee or insure the work completed
by the Contractor. During visits to the construction site, and on the basis of the
ENGINEER'S onsite observations as an experienced and qualified design professional, he
will keep the CITY informed on the extent of the progress of the work, and advise the
CITY of material and substantial defects and deficiencies in the work of material and
substantial defects and deficiencies in the work of Contractors which are discovered by
the ENGINEER or otherwise brought to the ENGINEER'S attention in the course of
construction, and may, on behalf of the CITY exercise whatever rights the CITY may
have to disapproved work and materials as failing to conform to the Contract Documents.
C. In connection with the services of Resident Project Representatives, ENGINEER will
use the usual degree of care and prudent judgement in the selection of competent Project
Representatives, and the ENGINEER will use its best efforts to see that the Project
Representatives are on the job to perform their required duties. In performing these duties
and services (described in this sub - paragraph), ENGINEER is responsible for exercising
reasonable care and skill befitting the profession the assure that the Contractor performs
the work in accordance with Contract Documents and to safeguard the City against
defects and deficiencies in the work; provided, however, ENGINEER does not guarantee
or insure the work completed by the Contractor.
D. In performing these services the ENGINEER will at all times endeavor to protect the
CITY on the Project and work Sites and safeguard the CITY against defects and
deficiencies in the work of the Contractor; provided, however, ENGINEER does not
guarantee or insure the work completed by the Contractor, nor is ENGINEER responsible
for the actual supervision of construction operations or for the safety measures that the
Contractor takes or should take.
E. ENGINEER shall not be responsible for any excess of construction costs over an
amount estimated.
7. INDEMNIFICATION
ENGINEER shall comply with the requirements of all applicable laws, rules, and
regulations in connection with the services of ENGINEER and shall exonerate, indemnify
and hold harmless the CTIY, its officers, agents and ali employees from any and all
of Federal, State and Local taxes or contributions imposed or required under the Social
Security, Workers Compensation, and Income Tax Laws with respect to ENGINEER'S
employees. Further, ENGINEER shall exonerate, indemnify and hold harmless the cm,
its officers, agents and all employees from any and all liability, loss, damages, expenses
or claims arising out of negligence of ENGINEER, its officers, agents and employees in
connection with any of the work performed or to be performed under this Contract by
ENGINEER or as a result of ENGINEER'S failure to use and employ reasonable skill
and care befitting the profession in accordance with paragraph 9 hereof. Further,
ENGINEER shall exonerate, indemnify and hold harmless the cm, its officers, agents,
and all employees from any and all liability, loss, damages, expenses or claims for
infringement of any copyright or patents arising out of the use of any plans, design,
drawings, or specifications furnished by ENGINEER in the performance of this Contract.
The foregoing indemnification provision shall apply to ENGINEER regardless of
whether or not said liability, loss, damages, expenses, or claims is caused in part by a
party indemnified hereunder.
8. ADDRESS OF NOTICE AND COMMUNICATIONS
CITY: Floyd T. Johnson, City Manager ENGINEER: Richard W. Cansler, P.E
CITY OF PORT ARTHUR CIVIL CONCEPTS, INC.,
P.O. Box 1089 3425 Federal Street
Port Arthur, Texas 77641 Pasadena, Texas 77504
409 - 983 -8101 713- 947 -6609
All notices and communications under this Contract shall be mailed or delivered to CITY
and ENGINEER at the above addresses.
9 CAPTIONS
Each paragraph of this Contract has been supplied with a caption to serve only as a guide
to the contents. The caption does not control the meaning of any Paragraph or in any way
determine its interpretation or application.
10. SUCCESSORS AND ASSIGNMENTS
The CITY and the ENGINEER each binds himself and his successors, executors,
administrators, and assigns to the other party of this Contract and to the successors,
executors, administrators and assigns of such other party, in respect to all covenants of
this Contract. Except as above, neither the CITY nor the ENGINEER shall assign, sublet,
or transfer his interest in this Contract without the written consent of the other. Nothing
herein shall be construed as creating any personal liability on the part of any officer or
agent of any public body which may be a party hereto.
11. TERMINATION OF CONTRACT FOR CAUSE
If, through any cause, the ENGINEER shall fail to fulfill in timely and proper manner his
obligations under this Contract, or if the ENGINEER 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 ENGINEER of such termination
and specifying the effective date thereof, at least five (5) days before the effective date of
such termination. In such event, all finished or unfinished documents, data, studies,
survey, drawings, maps, models, photographs, and reports prepared by the ENGINEER
under this Contract shall, at the option of the CITY, become CITY's property and the
ENGINEER shall be entitled to receive just and equitable compensation for any work
satisfactorily completed hereunder.
Notwithstanding the above, the ENGINEER 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
ENGINEER and the CITY may withhold any payment to the ENGINEER for the purpose
of setoff until such time as the exact amount of damages due the CITY from the
ENGINEER is determined.
12. TERMINATION FOR CONVENIENCE OF THE CITY
The CITY may, at its convenience, terminate this Contract at any time by giving at least
thirty (30) days notice in writing to the ENGINEER. If the Contract is terminated by the
CITY as provided herein, the ENGINEER will be paid for the time provided and
expenses incurred up to the termination date. If this Contract is terminated due to the fault
of the ENGINEER, Paragraph 14 hereof relative to termination shall apply.
13. CHANGES
The CITY may, from time to time, request changes in the Scope of Services of the
ENGINEER to be performed hereunder. Such changes, including any increase or
decrease in the amount of the ENGINEER'S compensation, which are mutually agreed
upon by and between the CITY and ENGINEER, shall be incorporated in written
amendments to this Contract.
14. PERSONNEL
A. The ENGINEER represents that he has, or will secure at this own expense, all
personnel required in performing the services under this Contract. Such personnel
shall not be employees of or have any contractual relationship with the CITY.
B. All of the services required hereunder shall be performed by the ENGINEER or under
his supervision and all personnel engaged in the work shall be fully qualified and, if
applicable shall be authorized or permitted under State and local law to perform such
services.
C. None of work or services covered by this Contract shall be subcontracted without the
prior written approval of the CITY. Any work or services subcontracted hereunder
shall be specified by written Contract or agreement and shall be subject to each
provision of this Contract.
15. REPORTS AND INFORMATION
The ENGINEER at such times and in such forms as the CITY may require, shall furnish
the CITY such periodic reports it may request pertaining to the work or services
undertaken pursuant to this Contract, including the costs and obligations incurred or to be
incurred in connection therewith and any other matters covered by this Contract.
16. CIVIL RIGHTS
Under Chapter 106 Civil Practice and Remedies Code of the Revised Civil Statutes of
Texas, no person shall, on the grounds of race, religion, color, sex or national origin, be
excluded due to discrimination under any program or activity of the CITY. The
ENGINEER will carry out its work under this Contract in a manner which will permit
full compliance by the CITY with the Statute.
17. INTEREST OF ENGINEER AND EMPLOYEES
The ENGINEER covenants that he presently has no interest and shall not acquire any
interest, direct or indirect, in the study area or any parcels therein or any other interests
which would conflict in any manner or degree with the performance of his services
hereunder. The ENGINEER further covenants that in the performance of this Contract,
no person having any such interest shall be employed.
18. INCORPORATED OF PROVISIONS REQUIRED BY LAW
Each provision and clause required by law to be included in the Contract shall be deemed
to be inserted herein and the Contract shall be read and enforced as though each were
inserted 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.
pP Y
EXECUTED in two (2) counterparts (each of which is an original) on behalf of
ENGINEER by Richard W. Cansler, Owner (Name and Office or Position) shown below,
and on behalf of the CITY by its Mayor and City Manager thereto duly authorized this
16 day of, October 2012
ACCEPTED: PROPOSED AND AGREED TO:
CITY: ENGINEER:
CITY OF PORT ARTHUR, TEXAS
City Manager
DATE: DATE:
ATTEST: ATTEST:
City Secretary
APPROVED AS TO FORM:
City Attorney
ACCEPTED:
John A. Comeaux, P.E. Asst. City Manager.
DATE:
EXHIBIT "B"
CIVIL CONCEPTS, INCORPORATED
The Construction of 9 Shelter Slab Foundations and Ramps for Port Arthur Transit
Located at Throughout the City
ENGINEER'S BILLING RATES AND PROJECT RELATED EXPENSES AND OTHER
DIRECT COST
A. Hourly billing rates for services of the ENGINEER and the ENGINEER's consultants:
Employee or Category Rate
Administrative Support $40.00/hr
Designer Engineer $ 95.00/hr
Senior Designer $125.00/hr
Engineering CAD technician $ 75.00/hr
Surveyor $125.00/hr
Field Crew $125.00/hr
Construction Administrator $75.00/hr
Principal /Director $125.00/hr
B. Project Related Expenses and other direct cost
a. Transportation in connection with the Project, authorized out -of -town and
subsistence, and electronic communications
b. Fees paid for securing approval of authorities having jurisdiction over the Project
c. Reproductions, plots, standard form documents, postage, handling and delivery of
instruments of Service
d. Renderings, models and mock -ups requested by the Owner
e. Expense of professional liability insurance dedicated exclusively to this Project or
the expense of additional insurance coverage or limits requested by the Owner in
excess of that normally carried by the ENGINEER and the ENGINEER's
consultants
f. Fees paid to permitting authorities
g. Third party code review fees (as required)
h. Plan review fees payable to Texas Department of Licensing and Regulations for
ADA Compliance Review
j. Schematic Design and Design Development Presentation/Material Costs
k. Document originals and copies for Owner's use during Design Reviews,
construction
1. For Reimbursable Expenses as described above the compensation shall be
computed as a multiple of one (1) time the expenses incurred by the ENGINEER,
and the ENGINEER's employees and consultants.
EXHIBIT "C"
CIVIL CONCEPTS, INCORPORATED
The Construction of 9 Shelter Slab Foundations and Ramps for Port Arthur Transit
Located at Throughout the City
DUTIES, RESPONSIBILITIES AND LIMITATIONS OF AUTHORITY
OF RESIDENT PROJECT REPRESENTATIVE
A. General
Resident Project Representative as ENGINEER'S Agent, will act as directed by and
under the supervision of ENGINEER and will confer with the ENGINEER regarding his
actions. Resident Project Representative's dealings in matters pertaining to the on -site
work shall in general be only with ENGINEER and Contractor, and dealings with
subcontractors shall only be through or with the full knowledge of Contractor. Written
communication with CITY will be only through or as directed by ENGINEER.
B. Duties and Responsibilities
Resident Project Representative will do:
1. Schedules
Review the progress schedule, Shop Drawing submissions and schedule of values
prepared by Contractor and consult with ENGINEER concerning their acceptability
2. Conferences
Attend pre - construction conferences. Arrange a schedule of progress meetings and other
job conferences as required in consultation with ENGINEER and notify those expected to
attend in advance. Attend meetings, and maintain and Circulate copies of minutes
thereof.
3. Liaison
a. Serve as ENGINEER'S liaison with Contractor, working principally through
Contractor's superintendent and assist him in understanding the intent of the
Contract Documents. Assist ENGINEER in serving as CITY'S liaison with
Contractor when Contractor's operations affect CITY'S on -site operations.
b. As requested by ENGINEER, assist in obtaining from CITY additional details or
information, when required at the job site for proper execution of the work.
4. Shop Drawings and Samples
a. Keep a record of approved Shop Drawings and samples, receive samples which
are furnished at the site by CONTRACTOR, and notify ENGINEER of their
availability for examination.
b. Advise ENGINEER and Contractor or its superintendent immediately of the
commencement of any work requiring a Shop Drawing or sample submission if
the submission has not been approved by ENGINEER.
5. Review of Work, Rejection of Defective Work, Inspection and Test:
Conduct periodic on -site observations of the work in progress to assist ENGINEER in
determining if the work is proceeding in accordance with the Contract Documents
and that completed work will conform to the Contract Documents.
a. Report to ENGINEER whenever he believes that any work is unsatisfactory,
faulty or defective or does not conform to the Contract Documents, or does not
meet the requirements of any inspections, test or approval required to be made or
has been damaged prior to final payment; and advise ENGINEER when he
believes work should be corrected or rejected or should be uncovered for
observation, or requires special testing, inspection or approval.
b. Verify that tests, equipment and systems startups and operating and maintenance
instructions are conducted as required by the Contract Documents and in presence
of the required personnel, and that Contractor maintains adequate records thereof;
observe, record and report to ENGINEER appropriate details relative to the test
procedures and startups.
c. Accompany visiting inspectors representing public or other agencies having
jurisdiction over the project, record the outcome of these inspections and report to
ENGINEER.
6. Interpretation of Contract Documents
Transmit to Contractor ENGINEER'S clarifications and interpretations of the
Contract Documents.
7. Modifications
Consider and evaluate Contractor's suggestions for modifications in drawings or
specifications and report them with recommendations to ENGINEER.
8. Records
a. Maintain at the job site orderly files for correspondence, reports of job
conferences, shop drawings and sample submissions, reproductions of original
Contract Documents including all addenda, change orders, field orders, additional
drawings issued subsequent to the execution of the Contract, ENGINEER'S
clarifications and interpretations of the Contract Documents, progress reports, and
other Project related documents.
b. Keep a daily diary and a daily report log book, recording hours on the job site,
weather conditions, data relative to questions of e)(tras or deductions, list of
visiting officials and representatives of manufactures, fabricators, suppliers and
distributors, daily activities, decisions, observations in general and specific
observations in more detail as in the case of observing test procedures. Send
copies of daily reports to ENGINEER.
c. Record names, addresses and telephone numbers of all Contractor, subcontractors
and major suppliers of materials and equipment.
9. Reports
a. Furnish ENGINEER periodic reports as required of the work and Contractor's
compliance with the approved progress schedule and schedule of shop drawings
submissions.
b. Consult with ENGINEER in advance of scheduled major test, inspections or start
of important phases of the work.
c. Report immediately to ENGINEER upon the occurrence of an accident.
10. Payment Requisitions
Review applications for payment with Contractor for compliance with the established
procedure for their submission and forward them with the recommendations to
ENGINEER, noting particularly their relation to the schedule of values, work
completed and materials and equipment delivered at the site but not incorporated in
the work.
11. Certificates. Maintenance and Operation Manuals
During the course of the work, verify that certificates, maintenance and operation
manuals and other data required to be assembled and furnished by Contractor are
applicable to the items actually installed and delivered to ENGINEER for his review
and forwarding to OWNER prior to final acceptance of the work.
12. Completion
a. Before ENGINEER issues a Certificate of Substantial Completion, submit to
Contractor a list of observed items regarding completion or correction.
b. Conduct final inspection in the company of ENGINEER, CITY, and Contractor
_ _^ and prepare a final list of items to be completed or corrected. _ _ _ _
c. Verify that all items on final list have been completed or corrected and make
recommendations to ENGINEER concerning acceptance.
C. Limitations of Authority
Except upon written instructions of ENGINEER, Resident Project Representative:
1. Shall not authorize any deviation from the Contract Documents or approve any
substitute materials or equipment.
2. Shall not exceed limitations on ENGINEER'S authority as set forth in the Contract
Documents.
3. Shall not undertake any of the responsibilities of Contractor, subcontractors or
Contractor's Superintendent, or expedite the work.
4. Shall not advise on or issue directions relative to any aspect of the means, methods,
techniques, sequences or procedures of construction unless such is specifically called
for in the Contract Documents.
5. Shall not advise on or issue directions as to safety precautions and programs in
connection with the work.
6. Shall not authorize cm to occupy the Project in whole or in part.
7. Shall not participate in specialized field or laboratory tests.
CONTRACT FOR PROFESSIONAL SERVICES
(FEDERAL /STATE FUNDS)
PART II - TERMS AND CONDITIONS
1. Termination of Contract: for Cause
If, through any cause, the Consultant shall fail to fulfill in timely and proper manner his
obligations under this Contract, or if the Consultant (ENGINEER, engineer or other profession)
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 Consultant of
such termination and specifying the effective date thereof, at least five days before the effective
date of such termination. In such event, all finished or unfinished documents, data, studies,
surveys, drawings, maps, models, photographs and reports prepared by the Consultant under this
Contract shall, at the option of the City, become CITY'S property and the Consultant shall be
entitled to receive just and equitable compensation for any work satisfactorily completed
hereunder. Notwithstanding the above, the Consultant 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 Consultant and
the City may withhold any payments to the Consultant for the purposes of set off such time as
the exact amount of damages due the City from the Consultant is determined.
2 3' for - Convenience of the - City - — -
The City may terminate this Contract at any time by giving at least thirty (30) days notice in
writing to the Consultant. If the Contract is terminated by the City as provided herein, the
Consultant will be paid for the time provided and expenses incurred up to the terminated date. If
this Contract is terminated due to the fault of the Consultant, Paragraph 1 hereof relative to
termination shall apply.
3. Changes
The City may, request changes Scope from time to time, imer uest chan es in the Sco e of Services of the Consultant to
Y
be performed hereunder. Such changes, including any increase or decrease in the amount of the
Consultant's compensation, which are mutually agreed upon by and between the City and the
Consultant, shall be incorporated in written amendments to this Contract.
4. Personnel
A. The Consultant represents that he has, or will secure at his own expense, all personnel
required in performing the services under this Contract. Such personnel shall not be
employees of or have any contractual relationship with the City.
B. All of the services required hereunder shall be performed by the Consultant or under
his supervision and all personnel engaged in the work shall be fully qualified and shall be
authorized or permitted under State and local law to perform such services.
C. None of the work or services covered by this Contract shall be subcontracted without the
prior written approval of the City. Any work or services subcontracted hereunder shall be
specified by written Contract or agreement and shall be subject to each provision of this
Contract.
5. Assignability
The Consultant shall not assign any interest in this Contract, and shall not transfer any interest in
the same (whether by assignment or novation), without the prior written consent of the City
thereto; provided, however, that claims for money due the Consultant from the City under
this Contract may be assigned to a bank, trust company, or other financial institution without
such approval. Notice of any such assignment or transfer shall be furnished promptly to the City.
6. Reports and Information
The Consultant, at such times and in such forms as the City may require, shall furnish the City
such periodic reports as it may request peltaining to the work or services undertaken pursuant to
this Contract, the costs and obligations incurred or to be incurred in connection therewith, and
any other matters covered by this Contract.
7. Records and Audits
The Consultant shall maintain accounts and records, including personnel, property and financial
records, adequate to identify and account for all costs pertaining to the Contract and such other
records as may be deemed necessary by the City to assure proper accounting for all project
funds, both Federal /State and Non - Federal /State shares. These records will be made available for
audit purposes to the City or any authorized representative, and will be retained for not less than
five (5) years after the expiration of this Contract unless permission to destroy them is granted by
the City.
8. Findings Confidential
All of the reports, information, data, etc., prepared or assembled by the Consultant under this
Contract are confidential and the Consultant agrees that they shall not be made available to any
individual or organization without the prior written approval of the City.
9. Copyright
No report, maps, or ot.her documents produced in whole or in part under this Contract shall be
the subject of an application for copyright by or on behalf of the Consultant.
10. Compliance with Local Laws
The Consultant shall comply with all applicable laws, ordinances, and codes of the State and
local governments, and the Consultant shall save the City harmless with respect to any damages
arising from any tort done in performing any of the work embraced by this Contract.
11. Equal Employment Opportunity
During the e performance of this Contract, the Consultant agrees as follows:
a. Consultant will not discriminate against any employee or applicant for employment
because of sex, race, creed, color, or national origin. The Consultant will take affirmative
action to ensure that applicants are employed, and the employees are treated, during
employment, without regard to their sex, race, creed, color, or national origin. Such action
- — -. - -- shall- includebut -not- be limited - to; - the foll - Empiayment, upgrading; - -
transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other
forms of compensation; and selection for training, including apprenticeship. The Consultant
agrees to post in conspicuous places, available to employees and applicants for employment,
notices to be provided by the City setting forth the provisions of this nondiscrimination
clause.
b. The Consultant will, in all solicitations or advertisements for employees placed by
or on behalf of the Consultant, state that all qualified applicants will receive consideration for
employment without regard to sex, race, color or national origin.
c. The Consultant will cause the foregoing provisions to be inserted in all subcontracts for
any work covered by this Contract so that such provisions will be binding upon each
subcontractor, provided that the foregoing provisions shall not apply to contracts or
subcontracts for standard commercial supplies or raw materials.
12. Civil Rights Act of 1964
Under 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
13. Section 109 of the Housing and Community Development Act of 1974
No person in the United States shall on the grounds of race, color, national origin, or sex be
excluded from participation, be denied the benefits if, or be subjected to discrimination under
any program or activity funded in whole or in part with funds made available under this title
14. Compliance with Employment Opportunities for Businesses and lower Income Persons
The Consultant shall comply with the regulations of Section 3 of the Housing and Urban
Development Act of 1968. A copy of the Federal Register, Title 24 part 135.20 subparagraph (b)
"Section 3 Clause" is made a part of this Contract:
a. The work to be performed under this Contract is on a project assisted under a program
providing State Funds or direct federal financial assistance from the Department of
Housing and Urban Development or other Federal Agencies and is subject to the
requirements of Section 3 of the Housing and Urban Development Act of 1968, as
amended, 12 U.S.C. 1701u. Section 3 requires that to the greatest extent feasible,
- - -- - opportunities- for -training and empioyment - given - iovaer income residents of the projecf - —
area and contracts for work in connection with the project be awarded to business
concerns which are located in, 01' owned in substantial part by persons residing in the
area of the project.
b. The parties to this Contract will comply with the provisions of Section 3 and the
regulations issued pursuant thereto by the Secretary of Housing and Urban Development
not forth in 24 CFR Part 135, and all applicable rules and orders of the Department issued
thereunder prior to the execution of this contract. The parties to this contract certify and
agree that they are under no contractual or other disability which would prevent them
from complying with those requirements.
c. The Consultant will send to each labor organization or representative of workers with
which he has a collective bargaining agreement or other contract of understanding, if any,
a notice advising the said labor organization or worker's representative of his
commitments under this Section 3 clause and shall post copies of the notice in
conspicuous places available to employees and applicants for employment or training.
d. The Consultant will include this Section 3 clause in every subcontract for work in
connection with the project arid will, at the direction of the applicant for or recipient of
federal financial assistance, take appropriate action pursuant to the subcontract upon a
finding that the subcontractor is in violation of regulations issued by the Secretary of
Housing and Urban Development, 24 CFR 131. The Consultant will not subcontract with
any subcontractor where it has notice or knowledge that the latter has bee found in
violation of regulations under 24 CFR Part 135 and will not let any subcontract unless the
subcontractor has first provided it with a preliminary statement of ability to comply with
the requirements of these regulations.
e. Compliance with the provisions of Section 3, the regulations set forth in 24 CFR Part
135, and all applicable rules and orders of the Department issued thereunder prior to the
execution of the Contract, shall be a condition of the federal financial assistance provided
to the project, binding upon the applicant or recipient for such assistance, its successors,
and assigns. Failure to fulfill these requirements shall subject the applicant or recipient,
its contractors and subcontractors, its successors, and assigns to those sanctions specified
by the grant or loan agreement or contract through which federal assistance is provided,
—i and to such sanctions as are specified by 24 CFR 135."
15. Section 3 Handicapped (if $25,000 or Over Affirmative Action for Handicapped
Workers)
a. The Contractor will not discriminate against any employee or applicant for employment
because of physical or mental handicap in regard to any position for which the employee
or applicant for employment is qualified. The Contractor agrees to take affirmative action
to employ, advance in employment and otherwise treat qualified handicapped individuals
without discrimination based upon their physical or mental handicap in all employment
practices such as the following: Employment, upgrading, demotion or transfer,
recruitment, advertising, layoff or termination, rates of pay or other forms of
compensation, and selection for training, including apprenticeship.
b. The Contractor agrees to comply with the rules, regulations, and relevant orders of the
Secretary of Labor issued pursuant to the Act.
c. In the event of the Contractor's noncompliance with the requirements of this clause,
actions for noncompliance may be taken in accordance with the rules, regulations, and
relevant orders of the Secretary of Labor issued pursuant to the Act.
d. The Contractor agrees to post in conspicuous places, available to employees and
applicants for employment, notices in a form to be prescribed by the Director, provided by
or through the contracting officer. Such notices shall state the Contractor's obligation
under the law to take affirmative action to employ and advance in employment qualified
handicapped employees and applicants for employment, and the rights of applicants and
employees.
e. The Contractor will notify each labor union or representative of workers with which it has
a collective bargaining agreement or other contract understanding, that the Contractor is
bound by the terms of Section 503 of the Rehabilitation Act of 1973, and is committed to
take affirmative action to employ and advance in employment physically and mentally
handicapped individuals.
f. The Contractor will include the provisions of this clause in every subcontract or purchase
order of 2
$ ,500 or more unless exempted by rules, regulations, or orders of the Secretary
issued pursuant to Section 503 of the Act, so that such provisions will be binding upon
each subcontractor or vendor. The Contractor will take such action with respect to any
subcontract or purchase order as the Director of the Office of Federal Contract
Compliance Programs may direct to enforce such provisions, including action for non-
compliance.
16. Section 402 Veterans of the Vietnam Era (if $10,000 or Over. Affirmative Action for
Disabled Veterans and Veterans of the Vietnam Era.
a. The Contractor will not discriminate against any employee or applicant for employment
because he or she is a disabled veteran or veteran of the Vietnam Era in regard to any
position for which the employee or applicant for employment is qualified. The Contractor
agrees to take affirmative action to employ, advance in employment and otherwise treat
qualified disabled veterans and veterans ofthe Vietnam Era without discrimination based
upon their disability or veteran status in all employment practices such as the following:
Employment upgrading, demotion or transfer, recruitment, advertising, layoff or
termination, rates of pay or other forms of compensation, and selection for training,
including apprenticeship.
b. The Contractor agrees that all suitable employment openings of the Contractor which exist
at the time of the execution of this contract and those which occur during the performance
of this contract, including those not generated by this contract and including those
occurring at an establishment of the Contractor other than the one wherein the contract is
being performed but excluding those of independently operated co orated affiliates shall
g p Y p corporated
listed at an appropriate local office of the State employment service system wherein the
opening occurs. The Contractor further agrees to provide such reports to such local office
regarding employment openings and hires as may be required. State
g g y eq and local government
agencies holding Federal contracts of $10,000 or more shall also list all their suitable
openings with the appropriate office of the State employment service, but are not required
to provide those reports set forth in paragraphs (D) and (E).
c. Listing of employment openings with the employment service system pursuant to this
clause shall be made at least concurrently with the use of any other recruitment source or
effort and shall involve the normal obligations which attach to the placing of a bona fide
job order, including the acceptance of referrals of veterans' non - veterans. The listing of
employment openings does not require the hiring of any particular job applicant or from
any particular group of job applicants, and nothing herein is intended to relieve the
Contractor from any requirements in Executive Orders or regulations regarding
t� re ar g g
nondiscrimination in employment.
d. The reports required by D of this clause shall include, but not q y t of be limited to,
periodic reports which shall be filed at least quarterly with the appropriate local office or,
where the Contractor has more than one hiring location in a State, with the central office
of that State employment service. Such reports, shall indicate for each hiring location. (1)
the number of individuals hired during the reporting period, (2) the number of nondisabled
veterans of the Vietnam Era hired, (3) the number of disabled veterans of the Vietnam Era
hired, and (4) the total number of disabled veterans hired. The reports should include
covered veterans hired for on-the-job training under 38 U.S.C. 1787. The Contractor shall
submit a report within 30 days after the end of each reporting period wherein any
performance is made on this contract identifying date for each hiring location. The
Contractor shall maintain at each hiring location copies of the reports submitted until the
expiration of one year after final payment under the contract, during which time those
reports and related documentation shall be made available, upon request, for examination
by any authorized representatives of the contracting officer or of the Secretary of Labor.
Documentation would include personnel records respecting job openings, recruitment and
placement.
e. Whenever the Contractor becomes contractually bound to the listing provisions of this
clause, it shall adVise the employment service system in each State where it has
establishments of the name and location of each hiring location in the State. As long as the
Contractor is contractually bound to these provisions and has so advised the State system,
there is no need to advise the State system of subsequent contracts. The Contractor may
advise the State system when it is no longer by this contract clause.
f. This clause does not apply to the listing of employment openings which occur and are
filled outside of the 50 states, the District of Columbia, Puerto Rico, Guam and the Virgin
Islands.
g. The provisions of pal "agraphs B, C, D and E of this clause do not apply to openings which
the Contractor proposes to fill from within his own organization or to fill pursuant to a
customary and traditional employer -union hiring arrangement. This exclusion does not
apply to a particular opening once an employer decides to consider applicants outside of
his own organization or employer -union arrangement for that opening.
h. As used in this clause: 1 "All suitable employment o enin s" includes, but is not limited
() p g
to, openings which occur in the following job categories: Production and non - production;
plant and office; laborers and mechanics; supervisory and non - supervisory,' technical, and
executive, administrative, and professional openings are compensated on a salary basis of
less than $25,000 per year. This term includes full -time employment, temporary
employment of more than three (3) days' duration, and part-time employment. It does not
include openings which the Contractor proposes to fill from within his own organization
or to fill pursuant to a customary and traditional employer -union hiring arrangement nor
openings in an educational institution which are restricted to students of that institution.
Under the most compelling circumstances an employment opening may not be suitable for
listing, including such situation where the needs of the Government cannot reasonably be
otherwise supplied, where listing would be contrary to national security, or where the
requirement of listing would otherwise not be for the best interest of the government. (2)
"Appropriate office of the State employment service system" means the local office of the
Federal, State and local system of public employment offices with original responsibility
for serving the area where the employment opening is to be filled, including the District of
Columbia, Guam, Puerto Rico, and the Virgin Islands. (3) "Openings which the Contractor
proposes to fill from within his own organization" means employment openings for which
no consideration will be given to persons outside the Contractor's organization (including
any affiliates, subsidiaries, and the parent companies) and includes any openings which
the Contractor proposes to fill from regularly established "recall" lists. (4) "Openings
which the Contractor proposes to fill pursuant to a customary and traditional employer-
union hiring arrangement" mean" employment openings which the Contractor proposes to
fill from union halls, which is part of the customary and traditional hiring relationship
which exists between the Contractor and representatives of his employees.
i. The Contractor agrees to comply with the rules, regulations, and relevant orders of the
Secretary of Labor issued pursuant to the act.
j. In the event of the Contractor's noncompliance with the requirements of this clause,
actions for noncompliance may be taken in accordance with the rules, regulations, and
relevant orders of the Secretary of Labor issued pursuant to the Act.
k. The Contractor agrees to post in conspicuous places, available to employees and
applicants for employment, notices in a form to be prescribed by the Director, provided by
or through the contracting officer. Such notice shall state the Contractor's obligation under
the law to make affirmative action to employ and advance in employment qualified
disabled veterans and veterans of the Vietnam Era for employment, and the rights of
applicants and employees.
1. The Contractor will notify each labor union or representative of workers with which it has
a collective bargaining agreement or other contract understanding, that the Contractor is
bound by the terms of the Vietnam Era Veterans Readjustment Assistance Act, and is
committed to take affirmative action to employ and advance in employment qualified
disabled veterans and veterans of the Vietnam Era.
m. The Contractor will include the provisions of this clause in every subcontract or purchase
order of $10,000 or more unless exempted by rules, regulations, or orders of the Secretary
issued pursuant to the Act, so that such provisions will be binding upon each subcontractor
or vendor. The Contractor will take such action with respect to any subcontract or
purchase order as the Director of the Office of Federal Contract Compliance Programs
may direct to enforce such provisions, including action for noncompliance.
17. 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 func.tions 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 Consultant shall take appropriate steps to assure compliance.
18. Interest of Other Local Public Officials
No member of the governing body of the locality and no other public official of such locality,
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 Consultant shall take appropriate steps to assure compliance.
19. Interest of Consultant and Employees
The Consultant covenants that he presently has no interest and shall not acquire any interest,
direct or indirect, in the study area of any parcels therein or any other• interests which would
conflict in any manner or degree with the performance of his services hereunder. The
Consultant further covenants that in the performance of this Contract, no person having any
such interest shall be employed.
20. Compliance with Copeland Anti - Kickback Act
The Consultant shall comply with the applicable regulations of the Secretary of Labor,
United States Department of Labor, made pursuant to the so- called "Anti- Kickback Act" of
June 13, 1934 (48 Sta. 948: 62 Stat. 862; Title U.S.C., Section 874; and Title 40 U.S.C.,
Section 276c), and any amendments or modifications thereof, shall cause appropriate
provisions to be inserted in subcontracts to insure compliance therewith by all subcontractors
subject thereto, and shall be responsible for the submissions of affidavits required by
subcontractors thereunder, except as said Secretary of Labor may specifically provide for
reasonable limitation, variations, tolerances, and exemptions from the requirements thereof.
21. References to Contractor
All references to "Contractor" in Part II, Terms and Conditions, shall be construed to mean
"Consultant" or " "ENGINEER ".
22. 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.
- i
EXHIBIT "D"
Federally Required Contract Clauses for Professional Services Contracts 1
Table of Contents
1 Energy Conservation Requirements
2 Clean Water Requirements
3 Lobbying
4 Federal Changes
5 Clean Air
6 No Government Obligation to Third Parties
7 Program Fraud and False or Fraudulent Statements and Related Acts
8 Termination
9 Government -wide Debarment and Suspension (Non- procurement)
10 Privacy Act
11 Civil Rights Requirements
12 Breaches and Dispute Resolution
13 Disadvantaged Business Enterprises (DBE)
14 State and Local Law Disclaimer
15 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.
1
Federally Required Contract Clauses for Professional Services Contracts 2
1. ENERGY CONSERVATION REQUIREMENTS
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.
2. 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 FT A 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.
08/09/01
Federally Required Contract Clauses for Professional Services Contracts 3
3. LOBBYING
31 USC§ 1352
49CFRPart 19
49 CFR Part 20
Applicability to Contracts
The Lobbying requirements apply to Construction/ ENGINEER and consultants/ 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 CPR Part 19, Appendix A, Section 7.
Mandatory Clause /Language
- Clause and specific language therein are mandated by 49 CPR 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
fl.11lds 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.
08/09/01
Federally Required Contract Clauses for Professional Services Contracts 4
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 $1 00,000)
The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned,
to any person for influencing or attempting to influence an officer or employee of, an agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress
in connection with the awarding of any Federal contract, the making or 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, Civil Concepts , Incorporate, 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 Contractors Authorized Official
Richard W. Cansler
President Civil Concepts Inc. Name and Title of Contractor's Authorized Official
Date: September 30, 2012
Federally Required Contract Clauses for Professional Services Contracts 5
4. FEDERAL CHANGES
49 CFR Part 18
Applicability to Contracts
The Federal Changes requirement applies to all contracts.
Flow Down
The Federal Changes requirement flows down appropriately to each applicable changed requirement.
Model Clause /Language
No specific language is mandated. The following language has been developed by FTA.
Federal Changes - Contractor shall at all times comply with all applicable FTA regulations, policies,
procedures and directives, including without limitation those listed directly or by reference in the
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.
5. 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
q PP Y g g q
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.
08/09/01
Federally Required Contract Clauses for Professional Services Contracts 6
6. 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.
7. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED
ACTS
31 USC § 3801 et seq.
49 CFR Part 31 18 USC § 1001
49 USC §5307
Applicability to Contracts
These requirements are applicable to all contracts.
Flow Down
These requirements flow down to contractors and subcontractors who make, present, or submit
covered claims and statements.
Model Clause/Language
These requirements have no specified language, so FTA proffers the following language.
Program Fraud and False or Fraudulent Statements or Related Acts.
(1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act
of 1986, as amended, 31 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
08/09/01
Federally Required Contract Clauses for Professional Services Contracts 7
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.
8. 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.
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.
08/09/01
Federally Required Contract Clauses for Professional Services Contracts 8
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 ty ( ) C ty o ort Arthur in its sole discretion may, in the
case of a termination for breach or default, allow the Contractor an appropriately
[ short eriod of
period
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.
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 Su lies and Service) If the Contractor fails to deliver supplies or to
( pp ) pp
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.
08/09/01
1
Federally Required Contract Clauses for Professional Services Contracts 9
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
contractor 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 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 did the Contractor charge with damages
under this clause if-
1. The delay in completing the work arises from unforeseeable causes beyond the control and without
the fault or negligence of the Contractor. Examples of such causes include: acts of God, acts of the
Recipient, acts of another Contractor in the performance of a contract with the Recipient, epidemics,
quarantine restrictions, strikes, freight embargoes; and
2. The contractor, within [ 10] days from the beginning of any delay, notifies the 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
Federally Required Contract Clauses for Professional Services Contracts 10
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 (Engineering and Consultants) 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 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
08/09/01
Federally Required Contract Clauses for Professional Services Contracts 11
are not the faults 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.
9. GOVERNMENT -WIDE DEBARMENT AND SUSPENSION (NON - PROCUREMENT)
49 CFR Par129
Executive Order 12549
Applicability to Contracts
Executive Order 12549, as implemented by 49 CFR Part 29, prohibits FTA recipients and
subrecipients 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 p q 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
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,"
08/09/01
Federally Required Contract Clauses for Professional Services Contracts 12
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.
"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.
08/09/01
T
Federally Required Contract Clauses for Professional Services Contracts 13
10. 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.
11. CIVIL RIGHTS REQUIREMENTS
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.
08/09/01
Federally Required Contract Clauses for Professional Services Contracts 14
Model Clause /Language
The following clause was predicated on language contained at 49 CFR Part 19, Appendix A, but
FTA has shortened the lengthy text.
Civil Rights - The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 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 o ortuni requirements of U.S. Department of Labor
p Y pp q opportunity q p
(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.
(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.
Federally Required Contract Clauses for Professional Services Contracts 15
(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.
12. BREACHES AND DISPUTE RESOLUTION
49 CFR Part 18
FTA Circular 4220.1 D
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 City
of Port Arthur Attorney. 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 City
of Port Arthur Attorney. 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 City of
Port Arthur Attorney 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.
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.
08/09/01
r
Federally Required Contract Clauses for Professional Services Contracts 16
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, Engineer 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.
13. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
49 CFR Part 26
Applicability to Contracts
DBE 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.
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 all 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.
08/09/01
r
Federally Required Contract Clauses for Professional Services Contracts 17
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 performs 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 at 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:
* 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 at least 51 percent owned by one or more women 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 women
individuals; and
08/09/01
Federally Required Contract Clauses for Professional Services Contracts 18
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.
14. 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 used in the
grantees procurement documents, the grantees should consult with their local attorney.
15. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS
FTA Circular 4220.1 D
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 4220.1 D, dated April 15, 1996, and 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 of the City of Port Arthur's requests which
would cause the City of Port Arthur to be in violation of the FTA terms and conditions.
08/09/01