HomeMy WebLinkAboutPR 17400: ENGINEERING CONTRACT FOR TRANSIT AUTO SCRUBBER FACILITY P. R. NO. 17400
11/21/2012 vrt
RESOLUTION NO.
A RESOLUTION AUTHORIZING A CONTRACT BETWEEN
THE CITY OF PORT ARTHUR AND NELSON
COLLABORATIVE FOR ENGINEERING DESIGN OF THE
TRANSIT DEPARTMENT'S AUTO SCRUBBER FACILITY IN
AN AMOUNT NOT TO EXCEED $62,500(PROJECT NOS.
TX96 -X040, TX96 -X042, TX90- X2013).
WHEREAS, the Port Arthur Transit desires to build an auto
scrubber to wash its buses and other vehicles in its fleet; and
WHEREAS, three firms applied in accordance with the Request
for Qualifications for the design of the facility; and
WHEREAS, the top scoring firm Negrete and Kolar fees exceeded
the Transit Department's budget and the City Council rejected the
proposal and authorized the City Manager to negotiate with Nelson
Collaborative pursuant to Resolution No. 12 -536; and
WHEREAS, the City desires to engage Nelson Collaborative to
provide engineering and design of the Auto Scrubber Facility as
delineated in a synopsis of the RFQ as delineated in Exhibit "A ";
and
WHEREAS, the estimated cost of the construction is $500,000
and the compensation for the basic services of Nelson Collaborative
is 12.5% of the estimated gross construction cost, which is an
amount not to exceed $62,500;and
WHEREAS, any changes in the scope of work, services, and fees
must be pre- authorized via a formal resolution of the City Council.
s.pr17400
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PORT ARTHUR:
Section 1. The facts and opinions in the preamble are true
and correct.
Section 2. That the City Council hereby approves a
contract in substantially the same form as Exhibit "B" between the
City of Port Arthur and Nelson Collaborative for the Engineering
and Design of the Auto Scrubber facility for Transit vehicles in an
amount not to exceed $62,500.
Section 3. That a copy of the caption of this Resolution
shall be spread upon the Minutes of the City Council.
READ, ADOPTED, AND APPROVED, this day of
2012 AD, at a Regular Meeting of the City Council of the City of
Port Arthur, Texas by the following vote:
AYES: Mayor:
Councilmembers:
NOES:
Mayor
ATTEST:
City Secretary
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APPROVED AS TO FORM:
(SEE MEMO)
City Attorney
APPROVED FOR ADMINISTRATION:
City Manager
AVAILABILITY OF FUNDS:
4t4/14,244
Director of Finance
Purchasing Manager
4 4 . 0 1
..r..� (Ai
Transit`D'rector
EXHIBIT "A"
s.pr17400
City of Port Arthur
Request for Qualifications for
Designing of Washing Facility for Transit Vehicles
OBJECTIVE
1. The overall objective of this project is to provide engineering and design of the Washing Facility for
Transit Buses, Vans and Trucks. This project is a Transit project, so the Engineer will need to be
knowledgeable of the Federal Transit Authority procurement procedures and regulations.
A. The size of the corner lot that the Washing Facility will be located on 75'x139.99'.
B. The exterior of the Washing Facility building must match the exterior look of the Transit Terminal
& Service Center located at 320 Dallas Avenue, Port Arthur, TX 77640.
C. The Transit Department desires to use a bus washing system equivalent to a W.E.T. Istobal
4PJ13223 bus wash system. The building must be able to house this system.
D. Construction must be completed by March 2, 2013.
2. The successful firm will be expected to:
A. Provide a detailed engineering report on project to include construction cost estimates.
B. Provide Construction Management of the project including making and/or approving pay
estimates to the contractor.
C. Engineer will be present at the Pre -bid Meeting.
D. Provide design phase services to include detailed engineering plans and specifications for
construction of the recommended project to be owned by the City. Design phase to include all
services through recommendation of the award.
E. Perform oversight to the construction of Washing Facility.
3. Consideration may be given to the utilization of qualified Port Arthur companies wherein the use
thereof will create additional economic development opportunities for the City, including the
employment of Port Arthur residents and increased tax revenues to the City.
Page 4 of 16
EXHIBIT "B"
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THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
CONTRACT
FOR PROFESSIONAL SERVICES
FEDERAL /STATE FUNDS
PART I — AGREEMENT
THIS AGREEMENT, entered into as of this 27th day of November 2012, by and
between the City of Port Arthur, Port Arthur, Texas (hereinafter called the "CITY ") acting herein by its
City Managerduly authorized by Resolution of the City Council of the City of Port Arthur and
The Nelson Collaborative, (hereinafter called the "ARCHITECT ") acting herein by Michael E.
Nelson hereunto duly authorized:
WITNESSETH THAT:
WHEREAS, the CITY desires to engage the Architect 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 ARCHITECT
The CITY hereby agrees to engage the ARCHITECT and the ARCHITECT hereby
agrees to perform the "Scope of Services" hereinafter set forth. This contract shall be
performed in Jefferson County, Texas.
2. SCOPE OF SERVICES
Architectural/ 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: New
Transit Bus Wash Facility at Dallas Ave & Procter Street.
The services rendered by Project for the Project to be designed for construction are
divided into three (3) distinct and sequential phases as follows:
1. Preliminary Phase - Preliminary studies, layouts, and cost estimates
2. Design Phase - Preparation of plans, specifications and contract documents
3. Construction Phase — Assist CITY'S representative during bidding and
construction phase
Certain elements of the architect work are covered under the Basic Services; others are
performed as Additional Services. Those elements of the architectural work which cannot be
accurately predetermined or controlled entirely by the ARCHITECT 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 following outline:
A. BASIC SERVICES
1. PRELIMINARY PHASE
(a) Provide Project Management services to direct, supervise and coordinate the
various items of work within this Phase, including review of activities of
subcontracted consultants.
(b) Attend preliminary conference with the CITY and other interested parties
regarding the project in order to further define the work.
(c) Establish the scope of any soil and foundation investigations or any special
surveys and tests which, in the opinion of the ARCHITECT, may be
required, and arrange for such work to be done, for the CITY'S account.
(d) Prepare a preliminary design on the project in sufficient detail to indicate
clearly the problems involved and the alternate solutions available to the
CITY, including preliminary layouts, and cost estimates, and setting forth
clearly the ARCHITECT'S recommendations. Number of copies of reports
not to exceed ten (10).
2. DESIGN PHASE
(a) Provide Project Management service to direct, supervise and coordinate the
various items of work within this Phase, including review of the activities of
subcontracted consultants.
(b) Establish the scope of any additional investigations or any special surveys
and tests which, in the opinion of the ARCHITECT may be required for
design, and arrange for such work to be done, for the CITY'S account.
(c) Furnish to the CITY, where required by the circumstances of the
assignment, the data necessary for applications for routine permits by local,
state, and federal authorities (as distinguished from detailed applications and
supporting documents for government grants -in -aid, or for planning
advances).
(d) Perform field surveys to collect information which in the opinion of the
ARCHITECT is required for design, including photos, and related office
computations and drafting.
(e) Prepare detailed specifications, contract drawings and bidding documents to
be included in contract documents for construction authorized by the CITY.
(f) Prepare detailed cost estimates of authorized construction. The
ARCHITECT shall use reasonable skill and care befitting the profession in
preparing cost estimates that will reflect current, local construction costs.
(g) Furnish the CITY all necessary copies of approved Contract Documents
including notices to bidders and proposal forms, up to twenty (20) sets.
3. CONSTRUCTION PHASE
(a) Provide Project Management services to direct supervise and coordinate the
various items of work within this Phase, including review of activities of
subcontracted consultants.
(b) Assist the CITY in the advertisements of the project for bids.
(c) Assist the CITY in the opening and tabulation of bids for construction of the
Project, and consult with the CITY as the proper action to be taken, based
on the design considerations involved.
(d) Assist in the preparation of formal Contract Documents.
(e) a.) Make periodic visits to the construction site (as distinguished from the
continuous services of a Resident Project Representative) as intervals
appropriate to the various stages of construction to observe and to evaluate
the progress and quality of work, and to determine in general if the
construction is proceeding in accordance with the Contract Documents.
ARCHITECT will work closely with the Resident Project Representative
(when required by CITY) to insure that complete, accurate construction
records, reports and information are being provided and that the quantities
and quality of work done by the Contractor are consistent with the Contract
Documents.
b.) Provide services of a Resident Project Representative and other field
personnel as required by the City for on- the -site determination of the
quantities and quality of the work done by the Contractor, and to assist in
the preparation of construction records, reports and information to the
ARCHITECT or Project ARCHITECT.
Duties, responsibilities and limitations of authority of Resident Project
Representative is more fully described in Exhibit "8 ".
(f) Consult and advise with the CITY, issue all instructions to the Contractor
requested by the CITY, and prepare and issue routine change orders with
CITY'S approval.
On matters requiring the CITY's involvement the ARCHITECT shall
provide the CITY'S designated representative with all facts germane to such
matters along with a complete recommendation for the CITY to consider.
Upon the decision of the CITY, the ARCHITECT shall be notified of the
CITY'S decision with instructions to inform the Contractor. All matters of
this nature shall be reduced to writing for the record as soon as practical.
The ARCHITECT shall have other duties in this regard that may be
included in the General Conditions of construction contract documents:
(g) Review samples, catalog data, schedules, shop drawings, laboratory shop and
mill tests of material and equipment and other data which the Contractor
submits. This review is for the benefit of the CITY and covers only general
conformance with the information given by the Contract Documents. The
Contractor is to review and stamp his approval on submittals prior to
submitting to ARCHITECT, and review by the ARCHITECT does not relieve
the Contractor of any responsibility such as dimensions to be confirmed and
correlated at the job site, appropriate safety measures to protect workers and
the public, or the necessity to construct a complete and workable facility in
accordance with the Contract Documents.
(h) Obtain and reviews monthly the final estimates for payments to Contractors,
furnish to the CITY any recommended payments to Contractors and
assemble written guarantees which are required by the Contract Documents.
(j) Conduct, in company with the CITY, a final inspection of the Project for
compliance with the Contract Documents, and submit recommendations
concerning Project status, as it may affect CITY'S final payment to the
Contractor.
4. COMPENSATION FOR BASIC SERVICES
Overall compensation shall be 12.5% of the construction cost estimated at $500,000.
Basic Services: (See pages 3 -5)
New Transit Bus Wash Facility ($500,000 estimated construction cost):
1. Programming / Schematic Design Phase ..Percent (15 %) $9,375
2. Design Development Phase ..Percent (20 %) $12,500
3. Construction Document Phase .Percent (40 %) $25,000
4. Bidding and Negotiation Phase Percent (5 %) $3,125
0
5. Construction Phase Percent (20%) $12,500
Total Basic Services Compensation Phase I - - -one hundred percent (100 %) $62,500
Owner's Project Budget for Cost of Work: $500,000; however, additional fees will be
negotiated.
Compensation for Additional Services, Project Related Expenses and Other Direct Costs:
Compensation for Additional Services, Project Related Expenses and Other Direct Costs shall be
as described in "Exhibit A" and shall be invoiced by the Design Professional on a monthly
accrual basis.
B. ADDITTIONAL SERVICES
All work performed by ARCHITECT at the request of CITY which is not included in the
Basic Services defined above, shall constitute Additional Services. Unless included in
said Basic Services, Additional Services may include but are not limited to the following:
§ 4.1.1 Programming !Architect
§ 4.1.2 Multiple preliminary designs Not Provided 1 1
§ 4.1.3 Measured drawings Not Provided i 1
§ 4.1.4 Existing facilities surveys Not Provided } 1
§ 4.1.5 Site Evaluation and Planning (B2O3TM_ Not Provided f
2007)
§ 4.1.6 Building information modeling Not Provided 1 E 1
chitect Architectural Consultant in Basic
§ 4.1.7 Civil engineering !Service
!Architect lArchitectural Consultant in Basic
§ 4.1.8 Landscape design Service I
§ 4.1.9 Architectural Interior Design (B252 !Architect !Included in Basic Services
2007)
§ 4.1.10 Value Analysis (B204TM -2007) Not Provided 1
§ 4.1.11 Detailed cost estimating Not Provided
§ 4.1.12 On -site project representation !Architect
§ 4.1.13 Conformed construction documents Not Provided 1 1 1
§ 4.1.14 As- designed record drawings !Architect ] 1 1
'General !Architect will review
rontractor /Construction'
§ 4.1.15 As- constructed record drawings !Manager
§ 4.1.16 Post occupancy evaluation Not Provided 1 1
§ 4.1.17 Facility Support Services (B210T"'L2007) Not Provided 1
§ 4.1.18 Tenant - related services !Not Provided 1 1 1
§ 4.1.19 Coordination of Owner's consultants :Owner 1 1
§ 4.1.20 Telecommunications /data design :Owner /Architect 1 1 1
§ 4.1.21 Security Evaluation and Planning iNotProvided 1 L 1
(B206T2007)
§ 4.1.22 Commissioning (B211T Not Provided 1 1
§ 4.1.23 Extensive environmentally responsible Not Provided 1 1
design
§ 4.1.24 LEED Certification (B214TM2007) Not Provided 1 1
§ 4.1.25 Fast -track design services Not Provided 1 1 1
§ 4.1.26 Historic Preservation (B205T" -2007) Not Provided 1 1
§ 4.1.27 Furniture, Finishings, and Equipment !;Not Provided _I (
Design (B253T" -2007)
1 1 1 1 1.
1. If the additional services listed above are required, the Architect will provide a proposal fee for the
scope of work that will be agreed upon with the Owner prior to commencement of the work.
2. Additional Services may be provided after execution of this Agreement, without invalidating the
Agreement. Except for services required due to the fault of the Architect, any Additional Services
provided in accordance with this Section 4.3 shall entitle the Architect to compensation pursuant to
Exhibit `A' and an appropriate adjustment in the Architect's schedule.
3. TIME OF PERFORMANCE
ARCHITECT will proceed immediately upon execution of this Contract with
performance of the services called for under the Basic Services with completion within
calendar days after execution, unless delayed by causes outside the control of
ARCHITECT, and will proceed with subsequent work only on authorization by CITY.
ARCHITECT shall immediately submit to CITY in writing evidence of delay
satisfactory to the City, ARCHITECT's reasonable discretion, upon which an extension
of time equal to the period of actual delay shall be granted in writing.
4. INFORMATION AND SERVICES TO BE FURNISHED TO ARCHITECT
It is agreed that the CITY will furnish, without charge, for the use of the Contract
information, data, reports, records, and maps as are existing, available, and necessary for
the carrying out of the work of the ARCHITECT as outlined under "Scope of Services."
The CITY and its agencies will cooperate with the ARCHITECT in every way possible to
facilitate the performance of the work described in this Contract.
5. COMPENSATION AND METHOD OF PAYMENT
A. COMPENSATION
City will pay ARCHITECT for work performed and services rendered under
Paragraph 2, "Scope of Services" (Basic Services and Additional Services), at the
following rates as detailed in Paragraph A(4).
It is agreed that total fees for Basic Services (including subcontracted consultants
services as described herein) under this Contract, as defined in Paragraph 2A and
based on the preceding schedule, shall not exceed the sum of $62,500 (sixty -two
thousand five hundred and No /100 Dollars).
B. PAYMENT
ARCHITECT will invoice CITY monthly for its services and charges incurred by
ARCHITECT for subcontracted consultants services performed under the direction
and control of ARCHITECT as described therein.
CITY agrees to pay ARCHITECT at his office the full amount of each such invoice upon
receipt or as otherwise specified in this Agreement. A charge of one percent per month
shall be added to the unpaid balance of invoices not paid within 31 days after date of
invoice. Approved subcontracted consultants are shown on Exhibit "C" attached hereto
and made a part hereof. The ARCHITECT shall pay his subcontractors no later than the
tenth day after he receives payment as required under Chapter 2251 Government Code of
the Revised Civil Statutes of Texas.
6. RECORDS
ARCHITECT shall keep accurate records, including time sheets and travel Vouchers, of
all time and expenses allocated to performance of Contract work. Such records shall be
kept in the office of the ARCHITECT for a period of not less than five (5) years and shall
be made available to the CITY for inspection and copying upon reasonable request.
7. OWNERSHIP OF DOCUMENTS
All documents, including original drawings, estimates, specifications, field notes and data
are property of CITY. ARCHITECT may retain reproducible copies of drawings and
other documents.
All documents, including drawings and specifications prepared by ARCHITECT 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 ARCHITECT for the specific purpose
intended. Any such verification or adaption will entitle ARCHITECT to further
compensation at rates to be agreed upon by CITY and ARCHITECT.
8. INSURANCE
All insurance must be written by an insurer licensed to conduct business in the State of
Texas, unless otherwise permitted by Owner. The ARCHITECT 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. ARCHITECT also agrees to maintain Professional Liability Insurance coverage of
$250,000 minimum per occurrence /claim/policy year aggregate limits against
ARCHITECT 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
ARCHITECT'S assignment under this Contract is completed. Additional Professional
Liability Insurance required is $ N/A
ARCHITECT shall cause ARCHITECT'S insurance company or insurance agent to
fill in all information required (including names of insurance agencies, ARCHITECT
and insurance companies, and policy numbers, effective dates and expiration dates)
and to date and sign and do all other things necessary to complete and make into 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,
ARCHITECT 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
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) days prior written notice has been given to the CITY.
ARCHITECT 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 Liabillty shall not exceed $ 5,000 unless
specifically approved by the Owner.
9. PROFESSIONAL LIABILITY
A. ARCHITECT 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 ARCHITECT 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 ARCHITECT 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 ARCHITECT 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, ARCHITECT 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, ARCHITECT does not guarantee or insure the work
completed by the Contractor. During visits to the construction site, and on the basis of the
ARCHITECT'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 ARCHITECT or otherwise brought to the ARCHITECT'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, ARCHITECT
will use the usual degree of care and prudent judgement in the selection of competent
Project Representatives, and the ARCHITECT 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), ARCHITECT 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, ARCHITECT
does not guarantee or insure the work completed by the Contractor.
D. In performing these services the ARCHITECT 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, ARCHITECT does not
guarantee or insure the work completed by the Contractor, nor is ARCHITECT
responsible for the actual supervision of construction operations or for the safety
measures that the Contractor takes or should take.
E. ARCHITECT shall not be responsible for any excess of construction costs over an
amount estimated.
10. INDEMNIFICATION
ARCHITECT shall comply with the requirements of all applicable laws, rules, and
regulations in connection with the services of ARCHITECT and shall exonerate,
indemnify and hold harmless the CTIY, its officers, agents and ali employees from any
and all liability, loss or damage ariSing out of noncompliance with such laws, rules and
regulations; without limitation, ARCHITECT shall assume full responsibility for
payments of Federal, State and Local taxes or contributions imposed or required under
the Social Security, Workers Compensation, and Income Tax Laws with respect to
ARCHITECT'S employees. Further, ARCHITECT 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 ARCHITECT, its officers,
agents and employees in connection with any of the work performed or to be performed
under this Contract by ARCHITECT or as a result of ARCHITECT'S failure to use and
employ reasonable skill and care befitting the profession in accordance with paragraph 9
hereof. Further, ARCHITECT 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 ARCHITECT in the performance of this
Contract.
The foregoing indemnification provision shall apply to ARCHITECT regardless of
whether or not said liability, loss, damages, expenses, or claims is caused in part by a
party indemnified hereunder.
11. ADDRESS OF NOTICE AND COMMUNICATIONS
CITY MANAGER „ ARCHITECT:
CITY OF PORT ARTHUR The Nelson Collaborative.
P.O. Box 1089 5450 Northwest Central
Port Arthur, Texas 77641 Drive, Suite #330
Houston, Texas 77092
All notices and communications under this Contract shall be mailed or delivered to CITY
and ARCHITECT at the above addresses.
12. 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.
13. SUCCESSORS AND ASSIGNMENTS
The CITY and the ARCHITECT 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 ARCHITECT 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.
14. TERMINATION OF CONTRACT FOR CAUSE
If, through any cause, the ARCHITECT shall fail to fulfill in timely and proper manner
his obligations under this Contract, or if the ARCHITECT 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 ARCHITECT 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
ARCHITECT under this Contract shall, at the option of the CITY, become CITY's
property and the ARCHITECT shall be entitled to receive just and equitable
compensation for any work satisfactorily completed hereunder.
Notwithstanding the above, the ARCHITECT 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
ARCHITECT and the CITY may withhold any payment to the ARCHITECT for the
purpose of setoff until such time as the exact amount of damages due the CITY from the
ARCHITECT is determined.
15. 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 ARCHITECT. If the Contract is terminated by the
CITY as provided herein, the ARCHITECT 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 ARCHITECT, Paragraph 14 hereof relative to termination shall apply.
16. CHANGES
The CITY may, from time to time, request changes in the Scope of Services of the
ARCHITECT to be performed hereunder. Such changes, including any increase or
decrease in the amount of the ARCHITECT'S compensation, which are mutually agreed
upon by and between the CITY and ARCHITECT, shall be incorporated in written
amendments to this Contract.
17. PERSONNEL
A. The ARCHITECT 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 ARCHITECT 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.
18. REPORTS AND INFORMATION
The ARCHITECT 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.
19. 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
ARCHITECT will carry out its work under this Contract in a manner which will permit
full compliance by the CITY with the Statute.
20. INTEREST OF ARCHITECT AND EMPLOYEES
The ARCHITECT 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 ARCHITECT further covenants that in the performance of this Contract, no person
having any such interest shall be employed.
21. 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.
EXECUTED in two (2) counterparts (each of which is an original) on behalf of
ARCHITECT by Michael E. Nelson, Owner (Name and Office or Position) shown
below, and on behalf of the CITY by its Mayor and City Manager thereto duly authorized
this 27 day of , November 2012
ACCEPTED: PROPOSED AND AGREED TO:
CITY: ARCHITECT:
CITY OF PORT ARTHUR, TEXAS
City Manager
DATE: DATE:
EXHIBIT "A"
THE NELSON COLLABORATIVE
New Transit Bus Wash Facility
Located at Dallas Avenue, & Procter Street
ARCHITECT'S BILLING RATES AND PROJECT RELATED EXPENSES AND
OTHER DIRECT COST
A. Hourly billing rates for services of the Architect and the Architect's consultants:
Employee or Category Rate
Administrative Support $40.00/hr
Designer $100.00/hr
Senior Designer $110.00/hr
Project Architect $95.00/hr
Project Manager $100.00/hr
Intern $85.00/hr
Interior Designer $65.00/hr
Engineer in Training $65.00/hr
Structural Engineer $90.00/hr
Senior Structural Engineer $100.00/hr
Construction Administrator $70.00/hr
Principal /Director $150.00/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 Architect and the Architect'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 Architect,
and the Architect's employees and consultants.
EXHIBIT "B"
THE NELSON COLLABORATIVE
New Transit Bus Wash Facility
Located at Dallas Avenue & Procter Street
DUTIES, RESPONSIBILITIES AND LIMITATIONS OF AUTHORITY
OF RESIDENT PROJECT REPRESENTATIVE
A. General
Resident Project Representative as ARCHITECT'S Agent, will act as directed by and
under the supervision of ARCHITECT and will confer with the ARCHITECT regarding
his actions. Resident Project Representative's dealings in matters pertaining to the on -site
work shall in general be only with ARCHITECT 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 ARCHITECT.
B. Duties and Responsibilities
Resident Project Representative will:
1. Schedules
Review the progress schedule, Shop Drawing submissions and schedule of values
prepared by Contractor and consult with ARCHITECT concerning their acceptability
2. Conferences
Attend pre - construction conferences. Arrange a schedule of progress meetings and other
job conferences as required in consultation with ARCHITECT and notify those expected
to attend in advance. Attend meetings, and maintain and Circulate copies of minutes
thereof.
3. Liaison
a. Serve as ARCHITECT'S liaison with Contractor, working principally through
Contractor's superintendent and assist him in understanding the intent of the
Contract Documents. Assist ARCHITECT in serving as CITY'S liaison with
Contractor when Contractor's operations affect CITY'S on -site operations.
b. As requested by ARCHITECT, 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 ARCHITECT of their
availability for examination.
II
b. Advise ARCHITECT 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 ARCHITECT.
5. Review of Work, Rejection of Defective Work, Inspection and Test:
Conduct periodic on -site observations of the work in progress to assist ARCHITECT
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 ARCHITECT 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 ARCHITECT 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 ARCHITECT 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
ARCHITECT.
6. Interpretation of Contract Documents
Transmit to Contractor ARCHITECT'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 ARCHITECT.
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, ARCHITECT'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 ARCHITECT.
c. Record names, addresses and telephone numbers of all Contractor, subcontractors
and major suppliers of materials and equipment.
9. Reports
a. Furnish ARCHITECT 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 ARCHITECT in advance of scheduled major test, inspections or
start of important phases of the work.
c. Report immediately to ARCHITECT 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
ARCHITECT, 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 ARCHITECT for his review
and forwarding to OWNER prior to final acceptance of the work.
12. Completion
a. Before ARCHITECT 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 ARCHITECT, 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 ARCHITECT concerning acceptance.
C. Limitations of Authority
Except upon written instructions of ARCHITECT, 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 ARCHITECT'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.
EXHIBIT "C"
List of Subcontracted Consultants
Civil Engineers
Fittz & Shipman Consulting Engineers and Land Surveyors, 1405 Cornerstone Court, Beaumont,
Texas 77706
(409) 832 -7238
Structural Engineers
Fittz & Shipman Consulting Engineers and Land Surveyors, 1405 Cornerstone Court, Beaumont,
Texas 77706
(409) 832 -7238
Mechanical, Electrical & Plumbing Engineers
Rice & Gardner Consultants Incorporated, 6161 Savoy, Suite #1212, Houston, Texas 77036
(713) 482 -2300
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 (ARCHITECT, 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. Termination 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, from time to time, request changes in the Scope of Services of the Consultant to
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.
II
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 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 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. 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 Contiac.t 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 employment be given lower income residents of the project
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,
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 corporated affiliates, shall
be 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 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
nondiscrimination in employment.
d. The reports required by paragraph D of this clause shall include, but not 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 openings" includes, but is not limited
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 " "ARCHITECT ".
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.
•
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.
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 FT A 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.
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Federally Required Contract Clauses for Professional Services Contracts 3
3. LOBBYING
31 USC§ 1352
49CFRPart19
49 CFR Part 20
Applicability to Contracts
The Lobbying requirements apply to Construction/ Architectural 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-- CERTII'ICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements
(To be submitted with each bid or offer exceeding $100,000)
The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned,
to any person for influencing or attempting to influence an officer or employee of, an agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress
in connection with the awarding of any Federal contract, the making 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, The Nelson Collaborative, 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 pro isions of 31 USC § A 3801, et seq" apply to this certification and disclosure, if any.
1 1 :.. re of Contractor's Authorized Official
Michael E. Nelson /Owner Name and Title of Contractor's Authorized Official
July 11, 2012 Date
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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 FT A 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
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.
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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 FT A. 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 3118 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
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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 ContTactor 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.
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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, j£ 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 manneI' 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 Come (General Provision) The City of Port Arthur in its sole discretion may, in the
case of a termination for breach or default, allow the Contractor [an appropriately short period of
time] in which to cure the defect. In such case, the notice of termination will state the time period in
which cure is permitted and other appropriate conditions
If Contractor fails to remedy to City of Port Arthur's satisfaction the breach or default or any of the
terms, covenants, or conditions of this Contract within [ten (10) days) after receipt by Contractor or
written notice from City of Port Arthur setting forth the nature of said breach or default, City of Port
Arthur shall have the right to terminate the Contract without any further obligation to Contractor.
Any such termination for default shall not in any way operate to preclude City of Port Arthur from
also pursuing all available remedies against Contractor and its sureties for said breach or default.
d. Waiver of Remedies for any Breach In the event that City y ty 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 (Supplies and Service) If the Contractor fails to deliver supplies or to
perform the services within the time specified in this contract or any extension or if the Contractor
fails to comply with any other provisions of this contract, the City of Port Arthur may terminate this
contract for default. The City of Port Arthur shall terminate by delivering to the Contractor a Notice
of Termination specifying the nature of the default. The Contractor will only be paid the contract
price for supplies delivered and accepted, or services performed in accordance with the manner or
performance set forth in this contract.
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Federally Required Contract Clauses for Professional Services Contracts 9
If, after ternunation 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 ContTactor 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
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' I
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 (Architect 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 arid 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
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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 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 P.FP's [for inclusion by contractors in their bids or proposals 1 for
all conh'acts 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,"
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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 wit.c'1 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 ParagraphS 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.
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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 opetate 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 teTln-- 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.
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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 C'ivil 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 discrimLrlate against any employee or applicant for
employment because of race, color, creed, national origLrl, 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 underlyLrlg contract:
(a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights Act,
as amended, 42 USC § 2000e, and Federal transit laws at 49 USC § 5332, the Contractor agrees to
comply with all applicable equal employment opportunity requirements of U.S. Department of Labor
(U.S. DOL) regulations, "Office of Federal Contract Compliance programs, Equal Employment
Opportunity, Depathnent 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 theruture 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, deniotion or transfer, recruitment or recruitment advertising, layoff or
termination; rates of payor 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 DiscrimLrlation 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.
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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
[title of employee]. This decision shall be final and conclusive unless within [ten (10)] days from the
date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the [title of
employee]. In connection with any such appeal, the Contractor shall be afforded an opportunity to be
heard and to offer evidence in support of its position. The decision of the [title of employee 1 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.
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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, (Architect) or Contractor shall constitute a waiver of any right or duty
afforded any of them under the Contract, nor shall any such action or failure to act constitute an
approval of or acquiescence in any breach thereunder, except as may be specifically agreed in
writing.
13. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
49 CFR Part 26
Applicability to Contracts
DEE provisions only apply to all DOT - assisted contracts. Disadvantaged Business Enterprise
Provision
1. The Federal Fiscal Year goal has been set by City of Port Arthur in an attempt to match projected
procurements with available qualified disadvantaged businesses. City of Port Arthur's goals for
budgeted service contracts, bus parts, and other material and supplies for Disadvantaged Business
Enterprises have been established by City of Port Arthur as set forth by the Department of
Transportation Regulations 49 CFR Part 23, March 31, 1980, and amended by Section 106(c) of the
Surface Transportation Assistance Act of 1987, and is considered pertinent to any Contract
Agreement resulting from this request for proposal.
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 DBEs 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.
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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) DEE 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 DEE'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 DEE 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 DEE 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. DEE 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 % of the stock of which is owned by one or more women
individuals; and
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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 4220.1D
Applicability to Contracts
The incorporation of FTA terms applies to all contracts.
Flow Down
The incorporation of FTA terms has unlimited flow down.
Model Clause/Language
FT A has developed the following incorporation of terms language:
Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions include, in
part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in
the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA
Circular 4220.1D, dated April 15, 1996, 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 (name of grantee) requests which would
cause (name of grantee) to be in violation of the FTA terms and conditions.
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