HomeMy WebLinkAboutPR 18477: 1 YEAR CONTRACT CARROLL & BLACKMAN, INC MANAGEMENT OF INSUSTRIAL STORM WATER POLLUTION, TRANSIT P.R.No. 18477
07/30/2014
RESOLUTION NO.
A RESOLUTION AUTHORIZING A ONE (1) YEAR CONTRACT BETWEEN THE
CITY OF PORT ARTHUR AND CARROLL & BLACKMAN, INC. FOR THE
MANAGEMENT OF THE INDUSTRIAL STORM WATER POLLUTION
PREVENTION PLAN FOR THE CITY OF PORT ARTHUR TRANSIT FACILITIES IN
THE AMOUNT OF $4,500.00. THE TRANSIT OPERATING PROPOSED GRANT TX90-
X2015, WITH ACCOUNT NUMBER FOR THIS SERVICE IS 401-1504-561.54-00.
WHEREAS, on August 2, 2014, per Resolution No. 14-340 the City Manager was
authorized and directed to negotiate a contract between the City of Port Arthur and Carroll &
Blackman, Inc., to provide certain professional engineering management services related to a
Storm Water Pollution Prevention Plan (SWP3) for Transit Facilities, located at 320 Dallas
Avenue, and the Auto Scrubber located at 244 Procter Street; and,
WHEREAS, the U.S. Environmental Protection Agency set regulations on construction
activities to prevent contamination through a program known as the National Pollutant Discharge
Elimination System; and,
WHEREAS, The Texas Commission on Environmental Quality operates this program
under the Texas Pollutant Discharge Elimination System; and,
WHEREAS, there are several storm water discharges that are monitored and regulated;
and,
WHEREAS, it is necessary to have Storm Water Industrial (SWP3) Management
Services for the City of Port Arthur Transit Facilities located at 320 Dallas Avenue and 244
Procter Street requires monitoring as per the Federal Water Pollution Control Act; and
P.R.No. 18477
07/30/2014
WHEREAS, Carroll & Blackman, Inc. has submitted a proposal to provide engineering
management services for the Storm Water Pollution Prevention Plan as to continue providing
engineering management services under the Storm Water Pollution Prevention Plan in an amount
not to exceed $4,500 for one (1) year as delineated in the contract.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PORT ARTHUR:
THAT the City Manager is hereby authorized and directed to enter into a contract with
Carroll & Blackman, Inc. to provide certain professional engineering management services
related to a Storm Water Pollution Plan (SWP3) for the City's Transit Facilities located at 320
Dallas Avenue, and 244 Procter Street.
THAT pursuant to Section 252.022 of the Texas Local Government Code, procurement for
professional services is exempted from competitive bidding requirements.
THAT the total contract amount will be billed in a lump sum on a percent completion basis
for each quarter in amount not to exceed $4,500, and funding for the management engineering
services contract is provided for under line item Professional Services in Transit Operating
Proposed Grant TX90-X2015, with account number 401-1504-561.54-00.
THAT, a copy of the caption of this Resolution is spread upon the Minutes of the City
Council.
READ, ADOPTED AND APPROVED,this day of August, A.D., 2014, at a
Regular Meeting of the City Council of the City of Port Arthur, Texas, by the following vote:
AYES:
Mayor:
Councilmembers:
NOES:
Debris"Bobbie" Prince, Mayor
ATTEST:
Sherri Bellard, City Secretary
APPROVED A TO FORM:
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Val Tizeno, ity A ey
APPROVED FOR ADMINISTRATION:
John A. Comeaux,
Interim City Managers
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Colleen • .--- , ca sit Di actor
APPROVED AS TO THE AVAILABILITY OF FUNDS:
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Deborah Echols, 0
Director of Finance(401-1504-561.54-00)
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Shawna Tubbs, Purchasing Manager
EXHIBIT "A"
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
CONTRACT
FOR PROFESSIONAL SERVICES
FEDERAL/STATE FUNDS
PART I—AGREEMENT
THIS AGREEMENT, entered into as of this 2nd day of September, 2014, by and
between the City of Port Arthur, Port Arthur, Texas (hereinafter called the "CITY")
acting herein by its City Manager, duly authorized by Resolution of the City Council of
the City of Port Arthur and Carroll & Blackman, Inc. for update of the Storm Water
Pollution Plan (hereinafter called the "ENGINEER") acting herein by Kim Carroll, P.E.
is hereunto duly authorized:
WITNESSETH THAT:
WHEREAS, the CITY desires to engage the ENGINEER to (1) render certain
technical and professional services hereafter described in "Scope of Services" or (2)
perform certain work hereafter described in "Scope of Services"; the Parties hereto do
mutually agree as follows:
1. EMPLOYMENT OF ENGINEER
The CITY hereby agrees to engage the ENGINEER and the ENGINEER hereby
agrees to perform the "Scope of Services" hereinafter set forth. This contract shall
be performed in Port Arthur, Jefferson County, Texas.
2. SCOPE OF SERVICES
Engineering services in connection with the Storm Water Pollution Plan(SWP3)
for transit. Preparation of plans and specifications and construction phase
services, including design, production documents, monitoring data and resident
project representation for the following described project(s),to wit:
The services rendered by ENGINEER for the Project to be designed for
construction are divided into three (3) distinct and sequential phases as follows:
1. Preliminary Phase- Preliminary studies, layouts, and cost estimates to
amend or update the plans
2. Planning Phase-Preparation of plans, specifications for TECQ
compliance and other EPA reports and documents recorded for the files.
3. Construction/Consultation Services—Aide the City's representative
during bidding construction, certain elements of the engineering work are
covered under Basic Services; others are performed as Additional
Services. Those elements of the engineering work which cannot be
accurately pre-determined, or controlled entirely by the Engineer are
performed as Additional Services.
Certain elements of the ENGINEER work are covered under the Basic Services; others
are performed as Additional Services. Those elements of the ENGINEERING work
which cannot be accurately predetermined or controlled entirely by the ENGINEER are
performed as Additional Services.
A. BASIC SERVICES
1. PRELIMINARY PHASE
a) Provide Project Management services to direct, supervise and coordinate
the various items of work within this Phase I, including review of
activities regarding SWP3.
b) Attend preliminary conferences with the CITY if necessary or other
interested parties regarding projects and concerning SWP3 matters in
order to further define the work and any related projects to impact this
procedure or process of collecting data. Define at least 3 goals to be met
annually to ensure compliance and to include informing the City on
changes in requirements or staff assessment needs.
c) Establish the scope of any soil and foundation investigations or any
special surveys and test which, in the opinion of the ENGINEER, may be
required, and arrange for such work to be done, for the CITY'S account.
As well as performance measures to detect failings as to SWP3 process
and procedures
a. Prepare quarterly reports 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 ENGINEER'S
recommendations if applicable. Update and evaluate our SWP3
data, process and note if quarterly collection is sufficient or
should staff do additional testing during the time Carroll and
Blackman does not do so. Say what training staff should get such
that PAT (Port Arthur Transit) will be in compliance with EPA's
regulations and TECQ's requirements for qualified in house staff.
2. PLAN PHASE
a) Provide Project Management service to direct, supervise and coordinate
the various items of work within this Phase, including review of activities
of subcontracted engineers.
b) Establish the scope of any additional soil and foundation investigations or
any special surveys and test which, in the opinion of the Engineer 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 circumstances of the assignment,
the engineering 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
ENGINEER is required for design, including photogrammetry if needed,
and related office computation and drafting of sites.
e) Prepare detailed specifications, contract drawings and bidding documents
to be included in contract documents for construction authorized by the
CITY if necessary.
f) Prepare detailed cost estimates of authorized construction or additional
services. The ENGINEER shall use reasonable skill and care befitting the
profession in preparing cost estimates that will reflect current, local
construction costs
3. PHASE SERVICES AS TO SITES (NEW OR EXISITING)
a) Provide Project Management services to direct supervise and coordinate
the various items of work within this Phase, including review of activities
of subcontracted engineers as per specifications.
b) Assist the City in advertisement of related project for bids
c) Assist the City in the opening and tabulation of bids for construction of
the Projects so related and consult with the City as the proper action to be
taken,based on the engineering considerations involved.
d) Assist in the preparation of formal Contract Documents.
e) Provide routine horizontal and vertical controls for use by Contractor to
do his detailed construction staking.
0
a.Make routine quarterly visits to the Transit Complexes (Auto Scrubber
and Garage)to conduct SWP3 collection of samples and keep data results
b. Provide services for resident staff on their part as to knowledge and
licenses and responsibility
Duties, responsibilities and limitations of authority of Engineer will be
related to that fully described in Exhibit`B".
c. Consult and advise the CITY, issue all instructions to the Contractor
requested by the CITY, and prepare and issue routine change orders with
the CITY'S approval.
d. On matter's requiring the CITY'S involvement the ENGINEER 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 ENGINEER 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 Engineer 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 the ENGINEER, and review by the
ENGINEER 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
Contractor Documents.
i) Conduct, in company with the CITY, a final inspection of the Project for
compliance with the Contractor Documents and submit recommendations
concerning Project status as it may affect the CITY'S final payments to
Contractor.
B. ADDITIONAL SERVICES
All work performed by ENGINEER at request of the CITY which is not
included in the Basic Services defined above, shall constitute Additional
Service. Unless included in said Basic Services, Additional Services may
include but are not limited to the following:
1) Studies, tests and process determination to establish basis of
design for water and waste treatment facilities.
2) Land surveys, and establishment of boundaries and monuments and
related office computation and drafting.
3) Preparation of property or easement descriptions.
4) Preparation of any special reports required for marketing of bonds.
5) Small design assignments (estimated construction cost less than
$100,000).
6) Appearances before regulatory agencies.
7) Assistant to the CITY as an expert witness in any litigation with third
parties, arising for development or construction of the Project, including
preparation of engineering data and reports.
8) Special investigations involving detailed consideration of operation,
maintenance and overhead expenses; preparation of rate schedules;
earnings and expense statements; special feasibility studies; appraisals;
evaluations; and material audits or inventories required for certification of
force account construction performed by the CITY.
9) Special soil and foundation investigations, including field and laboratory
tests,borings, related engineering analyses, and recommendations.
10) Detailed mill, shop and/or laboratory inspection of materials or
equipment.
11) Travel and subsistence required of the ENGINEER and authorized by the
CITY to point other than the CITY'S or ENGINEER's offices and Project
site.
12) Additional copies of reports over ten (10) sets and additional sets of
Contract Documents over twenty(20) sets.
13) Preparation of applications and supporting documents for government
grants or planning advances for TRANSIT projects.
14) Preparing of environmental statements and assistance to CITY in
preparing for, and attending public hearings.
15) Plotting, computing, and filing plats of subdivisions; staking of lots; an
related land planning and partitioning functions
16) Revision of contract drawings after a definite plan has been approved by
the CITY redrawing of plans to show work as actually constructed.
17) Services after issuance of Certificate of Completion.
18) Services to investigate existing conditions or facilities or to make
measured drawings thereof, or to verify accuracy of drawings or other
information furnished by Client.
19) Preparation of operating instructions and manuals for facilities and
training of personnel and assistance in operation of facilities.
20) Additional or extended services during construction made necessary by
work damaged by fire or other cause during construction, defective or
neglected work of contractor; services rendered after prolongation of
construction contract time by more than 20% acceleration of work
schedule involving services beyond normal working hours; or default
under construction contract due to delinquency or insolvency.
21) Providing any other service not otherwise including in this agreement or
not customarily furnished in accordance with generally accepted
engineering practice.
22) Any other special or miscellaneous assignments specifically authorized
by the CITY.
4. TIME OF PERFORMANCE
ENGINEER will proceed immediately upon execution of this Contract with performance
of the services called for under Basic Services with completion within 365 calendar days after
execution, unless delay by causes outside the control of ENGINEER, and will proceed with
subsequent work only on authorization by the CITY. ENGINEER shall immediately submit to the
CITY in writing evidence of delay satisfactory to the City Engineer's reasonable discretion, upon
which an extension of time equal to the period of actual delay shall be granted in writing.
5. INFORMATION AND SERVICES TO BE FURNISHED ENGINEER
It is agreed that the CITY will furnish, without charge, for 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 ENGINEER as outlined under"Scoop of Services."The CITY
and its agencies will cooperate with the ENGINEER in every way possible to facilitate the
performance of the work described in this Contract.
6. COMPENSATION AND METHOD OF PAYMENT
A. COMPENSATION
City will pay ENGINEER for work performed and services rendered under Paragraph 2,
"Scope of Services" (Basic Services and Additional Services), at the following rates:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF.
It is agreed that total fees for Basic Services (including subcontracted engineering
services as described herein) under this Contract, as defined in Paragraph 2A and based on
the preceding schedule, shall not exceed the sum of$4,500.00.
B. PAYMENT
ENGINEER will invoice CITY monthly for its services and charges incurred by
ENGINEER for subcontracted engineering services performed under the direction and
control of ENGINEER as described herein.
6. RECORDS
ENGINEER 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 ENGINEER 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. ENGINEER may retain reproducible copies of
drawings and other documents.
All documents, including drawings and specifications prepared by ENGINEER
are instruments of service in respect to the project. They are not intended or
represented to be suitable for reuse by CITY or others on extensions of the Project
or on any other project without written verification or adaption by ENGINEER
for the specific purpose intended. Any such verification or adaption will entitle
ENGINEER to further compensation at rates to be agreed upon by CITY and
ENGINEER.
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 ENGINEER shall, at his own
expense, purchase, maintain and keep in force insurance that will protect against injury
and/or damages which may arise out of or result from operations under this contract,
whether the operations be by himself or by any subcontractor or by anyone directly or
indirectly employed by any of them, or by anyone for whose acts any of them may be
liable, of the following types and limits (no insurance policy or certificate of insurance
required below shall contain any aggregate policy year limit unless a specific dollar
amount (or specific formula for determining a specific dollar amount) aggregate policy
year limit is expressly provided in the specification below which covers the particular
insurance policy or certificate of insurance):
1. Standard Worker's Compensation Insurance (with Waiver of Subrogation in
favor of the City of Port Arthur, its officers, agents and employees.)
2. Commercial General Liability occurrence type insurance. (No "XCU"
restrictions shall be applicable.)Products/completed operations coverage must
be included, and the City of Port Arthur, its officers, agents and employees
must be named as an additional Insured.
a. Bodily injury $500,000 single limit per occurrence or$500,000 each
person/$500,000 per occurrence.
b. Property Damage $100,000 per occurrence.
c. Minimum aggregate policy year limit $1,000,000.
3. Commercial Automobile Liability Insurance (including owned, non-owned
and hired vehicles coverage).
a. Minimum combined single limit of $500,000 per occurrence for bodily
injury and
property damage.
b. If individual limits are provided minimum limits are $300,000 per person,
$500,000 per occurrence for bodily injury and $100,000 per occurrence
for property damage.
4. Contractual Liability Insurance covering the indemnity provision of this
contract in the same amount and coverage as provided for Commercial
General Liability Policy, specifically referring to this Contract by date, job
number and location.
5. ENGINEER also agrees to maintain Professional Liability Insurance coverage
of $250,000 minimum per occurrence/claim/policy year aggregate limits
against ENGINEER for damages arising in the course of, or as a result of,
work performed under this Contract. Coverage shall continue for a minimum
of two (2) years after the ENGINEER assignment under this Contract is
completed. Additional Professional Liability Insurance required is Errors and
Omission liability applies.
ENGINEER shall cause ENGINEER's insurance company or insurance agent
to fill in all information required (including names of insurance agencies,
ENGINEER 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, ENGINEER shall
file said completed Form with the CITY. None of the provisions in said Form
shall be altered or modified in any respect except as herein expressly
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 ten-(10) days prior written notice has been given to
the CITY. ENGINEER shall also file with the CITY valid CERTIFICATE(s)
OF INSURANCE on like form from or for all Subcontractors and showing the
Subcontractor(s) as the Insured. Said completed CERTIFICATE OF
INSURANCE Form(s) shall in any event be filed with CITY not more than
ten(10) days after execution of this Contract.
Deductible on policy for Professional Liability shall not exceed $ 5,000 unless
specifically approved by the Owner.
9. PROFESSIONAL LIABILITY
A. ENGINEER shall be responsible for the use and employment of reasonable skill
and care befitting the profession in the designs, drawings, plans, specifications, data,
reports and designation of materials and equipment provided by ENGINEER for the
Project covered by this Contract. Approval by CITY shall not constitute nor be deemed a
release or waiver of the responsibility and liability of ENGINEER for the accuracy and
competency of such designs, drawings, plans, specifications, data, reports and
designation of materials and equipment. Contractor will be responsible for the actual
supervision of Construction operations and safety measures involving the work, his
employees and the public, but the ENGINEER will advise the Contractor of any items
requiring the attention and action of the Contractor.
B. If services include periodic visits to the site to inspect work performed by another
Contractor, ENGINEER is responsible for exercising reasonable care and skills befitting
the profession to assure that the Contractor performs the work in accordance with
Contract Documents and to safeguard the CITY against defects and deficiencies in the
work; provided, however, ENGINEER does not guarantee or insure the work completed
by the Contractor. During visits to the construction site, and on the basis of the
ENGINEER's onsite observations as an experienced and qualified design professional,
he will keep the CITY informed on the extent of the progress of the work, and advise the
CITY of material and substantial defects and deficiencies in the work of material and
substantial defects and deficiencies in the work of Contractors which are discovered by
the ENGINEER or otherwise brought to the ENGINEER's attention in the course of
construction, and may, on behalf of the CITY exercise whatever rights the CITY may
have to disapproved work and materials as failing to conform to the Contract
Documents.
C. In connection with the services of Resident Project Representatives, ENGINEER
will use the usual degree of care and prudent judgment in the selection of competent
Project Representatives, and the ENGINEER will use best efforts to see that the Project
Representatives are on the job to perform their required duties. In performing these duties
and services (described in this sub-paragraph), ENGINEER is responsible for exercising
reasonable care and skill befitting the profession the assure that the Contractor performs
the work in accordance with Contract Documents and to safeguard the City against
defects and deficiencies in the work; provided, however, ENGINEER does not guarantee
or insure the work completed by the Contractor.
D. In performing these services the ENGINEER will at all times endeavor to protect
the CITY on the Project and work Sites and safeguard the CITY against defects and
deficiencies in the work of the Contractor; provided, however, ENGINEER does not
guarantee or insure the work completed by the Contractor, nor is ENGINEER responsible
for the actual supervision of construction operations or for the safety measures that the
Contractor takes or should take.
E. ENGINEER shall not be responsible for any excess of construction costs over an
amount estimated.
10. INDEMNIFICATION
ENGINEER shall comply with the requirements of all applicable laws, rules, and
regulations in connection with the services of ENGINEER and shall exonerate, indemnify
and hold harmless the CITY, its officers, agents and all employees from any and all
liability, loss or damage arising out of noncompliance with such laws, rules and
regulations; without limitation, ENGINEER 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 ENGINEER'
employees. Further, ENGINEER shall exonerate, indemnify and hold harmless the City,
its officers, agents and all employees from any and all liability, loss, damages, expenses
or claims arising out of negligence of ENGINEER, its officers, agents and employees in
connection with any of the work performed or to be performed under this Contract by
ENGINEER or as a result of ENGINEER'S failure to use and employ reasonable skill
and care befitting the profession in accordance with paragraph 9 hereof. Further,
ENGINEER shall exonerate, indemnify and hold harmless the City, its officers, agents,
and all employees from any and all liability, loss, damages, expenses or claims for
infringement of any copyright or patents arising out of the use of any plans, design,
drawings, or specifications furnished by ENGINEER in the performance of this Contract.
The foregoing indemnification provision shall apply to ENGINEER regardless of
whether or not said liability, loss, damages, expenses, or claims is caused in part by a
party indemnified hereunder.
11. ADDRESS OF NOTICE AND COMMUNICATIONS
CITY: ENGINEER:
John A. Comeaux, Interim City Manager Kim Carroll, P.E.
CITY OF PORT ARTHUR CARROLL & BLACKMAN INC.
Box 1089 1120 Fannin Street
Port Arthur, Texas 77641 Beaumont, Texas 77701
409-983-8102 409-833-3363
All notices and communications under this Contract shall be mailed or delivered to
CITY and ENGINEER 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 ENGINEER each binds himself and his successors, executors,
administrators, and assigns to the other party of this Contract and to the successors,
executors, administrators and assigns of such other party, in respect to all covenants of
this Contract. Except as above, neither the CITY nor the ENGINEER shall assign, sublet,
or transfer his interest in this Contract without the written consent of the other. Nothing
herein shall be construed as creating any personal liability on the part of any officer or
agent of any public body which may be a party hereto.
14. TERMINATION OF CONTRACT FOR CAUSE
If, through any cause,the ENGINEER shall fail to fulfill in timely and proper manner
his obligations under this Contract, or if the ENGINEER shall violate any of the
covenants, agreements, or stipulations of this Contract, the CITY shall thereupon have
the right to terminate this Contract by giving written notice to the ENGINEER of such
termination and specifying the effective date thereof, at least five (5) days before the
effective date of such termination. In such event, all finished or unfinished documents,
data, studies, survey, drawings, maps, models, photographs, and reports prepared by the
ENGINEER under this Contract shall, at the option of the CITY, become CITY's
property and the ENGINEER shall be entitled to receive just and equitable compensation
for any work satisfactorily completed hereunder.
Notwithstanding the above, the ENGINEER shall not be relieved of liability to the
CITY for damages sustained by the CITY by virtue of any breach of the Contract by the
ENGINEER and the CITY may withhold any payment to the ENGINEER for the purpose
of setoff until such time as the exact amount of damages due the CITY from the
ENGINEER is determined.
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 ENGINEER. If the Contract is terminated by
the CITY as provided herein, the ENGINEER will be paid for the time provided and
expenses incurred up to the termination date. If this Contract is terminated due to the fault
of the ENGINEER, Paragraph 14 hereof relative to termination shall apply.
16. CHANGES
The CITY may, from time to time, request changes in the Scope of Services of the
ENGINEER to be performed hereunder. Such changes, including any increase or
decrease in the amount of the ENGINEER'S compensation, which are mutually agreed
upon by and between the CITY and ENGINEER, shall be incorporated in written
amendments to this Contract.
17. PERSONNEL
A. The ENGINEER represents that he has, or will secure at this own expense, all
personnel required in performing the services under this Contract. Such
personnel shall not be employees of or have any contractual relationship with
the CITY.
B. All of the services required hereunder shall be performed by the ENGINEER
or under his supervision and all personnel engaged in the work shall be fully
qualified and, if applicable shall be authorized or permitted under State and
local law to perform such services.
C. None of work or services covered by this Contract shall be subcontracted
without the prior written approval of the CITY. Any work or services
subcontracted hereunder shall be specified by written Contract or agreement
and shall be subject to each provision of this Contract.
18. REPORTS AND INFORMATION
The ENGINEER at such times and in such forms as the CITY may require, shall
furnish the CITY such periodic reports it may request pertaining to the work or services
undertaken pursuant to this Contract, including the costs and obligations incurred or to be
incurred in connection therewith and any other matters covered by this Contract.
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 ENGINEER 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 ENGINEER AND EMPLOYEES
The ENGINEER covenants that he presently has no interest and shall not acquire any
interest, direct or indirect, in the study area or any parcels therein or any other interests
which would conflict in any manner or degree with the performance of his services
hereunder.
The ENGINEER further covenants that in the performance of this Contract, no person
having any such interest shall be employed.
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
ENGINEER by CARROLL & BLACKMAN, Inc. Kim Carroll, P.E, (Principal) shown
below, and on behalf of the CITY by its City Manager_thereto duly authorized this 2t
day of, September 2014.
ACCEPTED: PROPOSED AND AGREED
TO:
CITY: ENGINEER:
CITY OF PORT ARTHUR,TEXAS CARROLL&BLACKMAN,INC.
CITY MANAGER REPRESENTATIVE
DATE: DATE:
ATTEST: ATTEST:
CITY SECRETARY WITNESS
APPROVED AS TO FORM:
CITY ATTORNEY:
EXHIBIT "A"
Engineer's Billing Rates
For Personnel/Equipment/Reimburseables
BASIS OF COMPENSATION- ENGINEERING FEES
Principal Registered Professional Engineer $170.00 per
hour
Senior Project Engineer $155.00 per
hour
Senior Electrician Engineer $235.00 per
hour
Project Engineer and Registered Land Surveyor $135.00 per
hour
Computer Programming Specialist $155.00 per
hour
GIS Specialist $120.00 per
hour
Senior Environmental Scientist $155.00 per
hour
Environmental Scientist $114.00 per
hour
Environmental Technician $ 93.00 per
hour
Engineering in Training (EIT) $ 93.00 per
hour
Level 1 $ 93.00 per
hour
Level2 $109.00 per
hour
Technician VI (Project Manager, Sr. Designer, Real Property Specialist) $124.00 per
hour
Technician V (Designer, Survey Coordinator) $103.00 per
hour
Technician IV (Autographic Operator, Office Survey Technician) $ 88.00 per
hour
Technician III (Jr. Autographic Operator, Field Survey, Party Chief) $ 73.00 per
hour
Technician II (Data Entry, Field Survey Technician $ 63.00 per
hour
Resident Project Representative $ 91.00 per
hour
Secretary/Typist $ 55.00 per
hour.
Reimbursable expenses such as outside reproduction services, courier service,photo
processing, and sub-consultant services will be invoiced at cost plus 10%.
Rates are adjusted as necessary at the beginning of each calendar year to reflect increases
in cost of operation, inflation etc.
Invoices based on these rates or on any other contractual arrangements with Carroll&
Blackman, Inc. are NET 30 DAYS unless specific arrangements/agreements are made. If
payment is not received in 30 days,project work will proceed at our discretion. Finance
charges will be assessed on overdue accounts at the rate of 2% per month
compounded daily.
Exhibit"A"
ATTACHMENT "1"
SCOPE OF WORK FOR SWP3 MANAGEMENT ALONG WITH OTHER
ENVIRONMENTAL DOCUMENT REVIEW PERTAINING TO PLANNING
PROGRAMS
• Conduct periodic inspections and quarterly visual monitoring at the facility in
compliance with the Multi-Sector General Permit (MSGP).
• Conduct appropriate employee training in compliance with the MSGP.
• Conduct annual records review meeting and develop annual report.
EXHIBIT "B"
DUTIES,RESPONSIBILITIES AND LIMITATIONS OF AUTHORITY
OF RESIDENT PROJECT REPRESENTATIVE
A. General
Resident Project Representative as ENGINEER'S Agent, will act as directed by
and under the supervision of ENGINEER and will confer with the ENGINEER
regarding his actions. Resident Project Representative's dealings in matters
pertaining to the on-site work shall in general be only with ENGINEER and
Contractor, and dealings with subcontractors shall only be through or with the full
knowledge of Contractor. Written communication with CITY will be only
through or as directed by ENGINEER.
B. Duties and Responsibilities
Resident Project Representative will:
1. Schedules
Review the progress schedule, Shop Drawing submissions and schedule of values
prepared by Contractor and consult with ENGINEER concerning their
acceptability.
2. Conferences
Attend pre-construction conferences. Arrange a schedule of progress meetings
and other job conferences as required in consultation with ENGINEER and notify
those expected to attend in advance. Attend meetings, and maintain and Circulate
copies of minutes thereof.
3. Liaison
a. Serve as ENGINEER'S liaison with Contractor, TECQ,working
principally through Contractor's superintendent and assist him in
understanding the intent of the Contract Documents. Assist ENGINEER in
serving as CITY'S liaison with Contractor when Contractor's operations affect
CITY'S on-site operations.
b. As requested by ENGINEER, assist in obtaining from CITY additional
details or information, when required at the job site for proper execution of the
work.
4. Shop Drawings and Samples
a. Keep a record of approved Shop Drawings and samples, receive samples
which are furnished at the site by CONTRACTOR, and notify
ENGINEER of their availability for examination.
b. Advise ENGINEER and Contractor or its superintendent immediately of
the commencement of any work requiring a Shop Drawing or sample
submission if the submission has not been approved by ENGINEER.
5. Review of Work, Rejection of Defective Work,Inspections and Test:
Conduct periodic on-site observations of the work in progress to assist
ENGINEER in determining if the work is proceeding in accordance with the
Contract Documents and that completed work will conform to the Contract
Documents.
a. Report to ENGINEER whenever he believes that any work is
unsatisfactory, faulty or defective or does not conform to the Contract
Documents, or does not meet the requirements of any inspections, test or
approval required to be made or has been damaged prior to final payment; and
advise ENGINEER when he believes work should be corrected or rejected or
should be uncovered for observation, or requires special testing, inspection or
approval.
b. Verify that tests, equipment and systems startups and operating and
maintenance instructions are conducted as required by the Contract
Documents and in presence of the required personnel, and that Contractor
maintains adequate records thereof; observe, record and report to ENGINEER
appropriate details relative to the test procedures and startups.
c. Accompany visiting inspectors representing public or other agencies
having jurisdiction over the project, record the outcome of these inspections
and report to ENGINEER.
6. Interpretation of Contract Documents
Transmit to Contractor ENGINEER'S clarifications and interpretations of the
Contract Documents.
7. Modifications
Consider and evaluate Contractor's suggestions for modifications in drawings
or specifications and report them with recommendations to ENGINEER IF
there are Errors and Omissions on the part of the Engineer, said liability
shall lie with them and no additional payment will be required on the part of
the City, only the need for additional time to reconcile the situation.
8. Records
a. Maintain at the job site orderly files for correspondence, reports of job
conferences, shop drawings and sample submissions, reproductions of
original Contract Documents including all addenda, change orders, field
orders, additional drawings issued subsequent to the execution of the
Contract, ENGINEER'S clarifications and interpretations of the Contract
Documents,progress reports, and other Project related documents.
b. Keep a daily diary and a daily report log book, recording hours on the job
site, weather conditions, data relative to questions of extras or deductions,
list of visiting officials and representatives of manufactures, fabricators,
suppliers and distributors, daily activities, decisions, observations in
general and specific observations in more detail as in the case of observing
test procedures. Send copies of daily reports to ENGINEER.
c. Record names, addresses and telephone numbers of all Contractor,
subcontractors and major suppliers of materials and equipment.
9. Reports
a. Furnish ENGINEER periodic reports as required of the work and
Contractor's compliance with the approved progress schedule and
schedule of shop drawings submissions.
b. Consult with ENGINEER in advance of scheduled major test, inspections
or start of important phases of the work.
c. Report immediately to ENGINEER upon the occurrence of an accident.
10. Payment Requisitions
Review applications for payment with Contractor for compliance with the
established procedure for their submission and forward those with the
recommendations to ENGINEER, noting particularly their relation to the
schedule of values, work completed and materials and equipment delivered at
the site but not incorporated in the work. Engineers' payment will be
quarterly.
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 this
material to ENGINEER for his review and forwarding to OWNER prior to
final acceptance of the work.
12. Completion
a. Before ENGINEER issues a Certificate of Substantial Completion, submit
to Contractor a list of observed items regarding completion or correction.
b. Conduct final inspection in the company of ENGINEER, CITY, and
Contractor and prepare a final list of items to be completed or corrected.
c. Verify that all items on final list have been completed or corrected and
make recommendations to ENGINEER concerning acceptance.
C. Limitations of Authority
Except upon written instructions of ENGINEER, Resident Project Representative:
1. Shall not authorize any deviation from the Contract Documents or approve
any substitute materials or equipment.
2. Shall not exceed limitations on ENGINEER'S authority as set forth in the
Contract Documents.
3. Shall not undertake any of the responsibilities of Contractor,
subcontractors or Contractor's Superintendent, or expedite the work.
4. Shall not advise on or issue directions relative to any aspect of the means,
methods, techniques, sequences or procedures of construction unless such
is specifically called for in the Contract Documents.
5. Shall not advise on or issue directions as to safety precautions and
programs in connection with the work.
6. Shall not authorize the City to occupy the Project in whole or in part.
7. Shall not participate in specialized field or laboratory tests.
EXHIBIT "C"
List of Subcontracted Engineers
CONTRACT FOR PROFESSIONAL SERVICES
(FEDERAL/STATE FUNDS)
PART II -TERMS AND CONDITIONS
1. Termination of Contract for Cause
If, through any cause, the Consultant shall fail to fulfill in timely and proper manner his
obligations under this Contract, or if the Consultant (engineer, architect 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.
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 pertaining 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 other 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 Contract so that such provisions will be
binding upon each subcontractor, provided that the foregoing provisions shall not
apply to contracts or subcontracts for standard commercial supplies or raw materials.
12. Civil Rights Act of 1964
Under Title VI of the Civil Rights Act of 1964, no person shall, on the grounds of race,
color, or national origin, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity receiving federal financial
assistance
13. Section 109 of the Housing and Community Development Act of 1974
No person in the United States shall on the grounds of race, color, national origin, or sex
be excluded from participation, be denied the benefits if, or be subjected to
discrimination under any program or activity funded in whole or in part with funds made
available under this title
14. Compliance with Employment Opportunities for Businesses and lower Income
Persons
The Consultant shall comply with the regulations of Section 3 of the Housing and Urban
Development Act of 1968. A copy of the Federal Register, Title 24 part 135.20 sub-
paragraph(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, or 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 there under 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 and 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 been 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 there under
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 of the
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 corporate 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 paragraphs 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 or 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 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.
18. Interest of Other Local Public Officials
No member of the governing body of the locality and no other public official of such
locality, who exercises any functions or responsibilities in connection with the
planning and carrying out of the program, shall have any personal financial interest,
direct or indirect, in this Contract; and the Consultant shall take appropriate steps to
assure compliance.
19. Interest of Consultant and Employees
The Consultant covenants that he presently has no interest and shall not acquire any
interest, direct or indirect, in the study area of any parcels therein or any other
interests which would conflict in any manner or degree with the performance of his
services hereunder. The Consultant further covenants that in the performance of this
Contract, no person having any such interest shall be employed.
20. Compliance with Copeland Anti-Kickback Act
The Consultant shall comply with the applicable regulations of the Secretary of
Labor, United States Department of Labor, made pursuant to the so-called "Anti-
Kickback Act" of June 13, 1934 (48 Sta. 948: 62 Stat. 862; Title U.S.C., Section 874;
and Title 40 U.S.C., Section 276c), and any amendments or modifications thereof,
shall cause appropriate provisions to be inserted in subcontracts to insure compliance
therewith by all subcontractors subject thereto, and shall be responsible for the
submissions of affidavits required by subcontractors thereunder, except as said
Secretary of Labor may specifically provide for reasonable limitation, variations,
tolerances, and exemptions from the requirements thereof.
21. References to Contractor
All references to "Contractor" in Part II, Terms and Conditions, shall be construed to
mean "Consultant" or"Engineer".
22. Incorporation of Provisions Required by Law
Each provision and clause required by law to be inserted into the Contract shall be
deemed to be enacted herein and the Contract shall be read and enforced as though
each were included herein. If through mistake or otherwise any such provision is not
inserted or is not correctly inserted, the Contract shall be amended to make such
insertion on application by either party.
EXHIBIT "C"
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 sub-recipients and their sub-agreements 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/ENGINEER and consultants/Acquisition
of Rolling Stock/Professional Service Contract/Operational Service Contract/Turnkey
contracts.
Flow Down
The Lobbying requirements mandate the maximum flow down,pursuant to Byrd Anti-
Lobbying
Amendment, 31 USC § 1352(b)(5) and 49 CPR Part 19, Appendix A, Section 7.
Mandatory Clause/Language
- Clause and specific language therein are mandated by 49 CPR Part 19, Appendix A.
Modifications have been made to the Clause pursuant to Section 10 of the Lobbying
Disclosure
Act of 1995,PL 104-65 [to be codified at 2 USC § 1601, et. seq.]
-Lobbying Certification and Disclosure of Lobbying Activities for third party contractors are
mandated by 31 USC § 1352(b) (5), as amended by Section 10 of the Lobbying Disclosure
Act of 1995, and DOT implementing regulation, "New Restrictions on Lobbying)' at 49 CFR
§ 20.110(d)
-Language in Lobbying Certification is mandated by 49 CFR Part 19, Appendix A, Section
7, which provides that contractors file the certification required by 49 CFR Part 20, Appendix
A.
Modifications have been made to the Lobbying Certification pursuant to Section 10 of the
Lobbying Disclosure Act of 1995.
-Use of"Disclosure of Lobbying Activities)' Standard Form-LLL set forth in Appendix B of
49
CFR Part 20, as amended by "Government wide Guidance For New Restrictions on
Lobbying,"
61 Fed. Reg. 1413 (1/19/96) is mandated by 49 CFR Part 20, Appendix A.
Byrd Anti-Lobbying Amendment, 31 USC § 1352, as amended by the Lobbying Disclosure
Act of 1995, PL 104-65 [to be codified at 2 USC § 1601, et seq.]- Contractors who apply or
bid for an award of$100,000 or more shall file the certification required by 49 CFR Part 20,
"New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has
not used Federal appropriated funds to pay any person or organization for influencing or
attempting to influence an officer or employee of any agency, a member of Congress, officer
or employee of Congress, or an employee of a member of Congress in connection with
obtaining any Federal contract, grant or any other award covered by 31 USC § 1352. Each
Federally Required Contract Clauses for Professional Services Contracts 4
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.
APPENDIX A, 49 CFR,Part 20--CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements
(To be submitted with each bid or offer exceeding $100,000)
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 sub awards at all tiers (including subcontracts, sub grants, 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.].
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Federally Required Contract Clauses for Professional Services Contracts 5
The Contractor, Carroll & Blackman, Inc., certifies or affirms the truthfulness and accuracy
of each statement of its certification and disclosure, if any, In addition,the Contractor
understands and agrees that the provisions of (31 USC § A 3801, et seq)apply to this
certification and disclosure, if any.
Signature of Contractor's Authorized Official
Name and Title of Contractor's Authorized Official
Date
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
Federally Required Contract Clauses for Professional Services Contracts 6
Contractor agrees to report each violation to the Purchaser and understands and agrees that
the Purchaser will, in turn, report each violation as required to assure notification to FTA and
the appropriate EPA Regional Office.
(2)The Contractor also agrees to include these requirements in each subcontract exceeding
$100,000 financed in whole or in part with Federal assistance provided by FTA.
6.NO GOVERNMENT OBLIGATION TO THIRD PARTIES
Applicability to 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.
. Federally Required Contract Clauses for Professional Services Contracts 7
Program Fraud and False or Fraudulent Statements or Related Acts.
(1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies
Act of 1986, as amended, 31 USC § 3801 et seq. and U.S. DOT regulations, "Program Fraud
Civil Remedies," 49 CFR Part 31, apply to its actions pertaining to this Project. Upon
execution of the underlying contract, the Contractor certifies or affirms the truthfulness and
accuracy of any statement it has made, it makes, it may make, or causes to be made,
pertaining to the underlying contract or the FTA assisted project for which this contract work
is being performed. In addition to other penalties that may be applicable,the Contractor
further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent
claim, statement, submission, or certification,the Federal Government reserves the right to
impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to
the extent the Federal Government deems appropriate.
(2)The Contractor also acknowledges that if it makes, or causes to be made,a false,
fictitious, or fraudulent claim, statement, submission, or certification to the Federal
Government under a contract connected with a project that is financed in whole or in part
with Federal assistance originally awarded by FTA under the authority of 49 USC § 5307, the
Government reserves the right to impose the penalties of 18 USC § 1001 and 49 USC §
5307(n) (1) on the Contractor,to the extent the Federal Government deems appropriate.
(3)The Contractor agrees to include the above two clauses in each subcontract financed in
whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses
shall not be modified,except to identify the subcontractor who will be subject to the
provisions.
8. TERMINATION
49 USC Part 18
FTA Circular 4220.1F
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:
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Federally Required Contract Clauses for Professional Services Contracts 8
a. Termination for Convenience (General Provision) The City of Port Arthur may terminate
this contract, in whole or in part, at any time by written notice to the Contractor when it is in
the Government's best interest. The Contractor shall be paid its costs, including contract
closeout costs, and profit on work performed up to the time of termination. The Contractor
shall promptly submit its termination claim to City of Port Arthur to be paid the Contractor.
If the Contractor has any property in its possession belonging to the City of Port Arthur,the
Contractor will account for the same, and dispose of it in the manner the City of Port Arthur
directs.
b. Termination for Default [Breach or Cause) (General Provision) If the Contractor does not
deliver supplies in accordance with the contract delivery schedule, or, if the contract is for
services,the Contractor fails to perform in the manner called for in the contract, or if the
Contractor fails to comply with any other provisions of the contract,the City of Port Arthur
may terminate this contract for default. Termination shall be effected by serving a notice of
termination on the contractor setting forth the manner in which the Contractor is in default.
The contractor will only be paid the contract price for supplies delivered and accepted, or
services performed in accordance with the manner of performance set forth in the contract.
If it is later determined by the City of Port Arthur that the Contractor had an excusable reason
for not performing, such as a strike, fire, or flood, events which are not the fault of or are
beyond the control of the Contractor,the City of Port Arthur, after setting up a new delivery
of performance schedule,may allow the Contractor to continue work, or treat the termination
as a termination for convenience.
c. Opportunity to 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 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.
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Federally Required Contract Clauses for Professional Services Contracts 9
e. Termination for Convenience (Professional or Transit Service Contracts) The City of Port
Arthur, by written notice, may terminate this contract, in whole or in part,when it is in the
Government's interest. If this contract is terminated,the Recipient shall be liable only for
payment under the payment provisions of this contract for services rendered before the
effective date of termination.
f. Termination for Default(Supplies and Service) If the Contractor fails to deliver supplies or
to perform the services within the time specified in this contract or any extension or if the
Contractor fails to comply with any other provisions of this contract,the City of Port Arthur
may terminate this contract for default. The City of Port Arthur shall terminate by delivering
to the Contractor a Notice of Termination specifying the nature of the default. The Contractor
will only be paid the contract price for supplies delivered and accepted, or services performed
in accordance with the manner or performance set forth in this contract.
If, after termination for failure to fulfill contract obligations, it is determined that the
Contractor was not in default,the rights and obligations of the parties shall be the same as if
the termination had been issued for the convenience of the Recipient.
g. Termination for Default(Transportation Services) if the Contractor fails to pick up the
commodities or to perform the services, including delivery services,within the time specified
in this contract or any extension or if the Contractor fails to comply with any other provisions
of this contract,the City of Port Arthur may terminate this contract for default. The City of
Port Arthur shall terminate by delivering to the Contractor a Notice of Termination
specifying the nature of default. The Contractor will only be paid the contract price for
services performed in accordance with the manner of performance set forth in this contract.
If this contract is terminated while the Contractor has possession of Recipient goods,the
Contractor shall, upon direction of the City of Port Arthur,protect and preserve the goods
until surrendered to the Recipient or its agent. The Contractor and City of Port Arthur shall
agree on payment for the preservation and protection of goods. Failure to agree on an amount
will be resolved under the Dispute clause.
If, after termination for failure to fulfill contract obligations, it is determined that the
Contractor was not in default,the rights and obligations of the parties shall be the same as if
the termination had been issued for the convenience of the City of Port Arthur
h. Termination for Default(Construction) If the Contractor refuses or fails to prosecute the
work or any separable part,with the diligence that will insure its completion within the time
specified in this contract or any extension or fails to complete the work within this time, or if
the Contractor fails to comply with any other provisions of this contract,the City of Port
Arthur may terminate this 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 08/09/01
Federally Required Contract Clauses for Professional Services Contracts 10
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
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(ENGINEER 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.
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Federally Required Contract Clauses for Professional Services Contracts 11
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 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 Part 29
Executive Order 12549
Applicability to Contracts
Executive Order 12549, as implemented by 49 CFR Part 29,prohibits FTA recipients and
sub-recipients from contracting for goods and services from organizations that have been
suspended or debarred from receiving Federally assisted contracts.As part of their
applications each year,recipients are required to submit a certification to the effect that they
will not enter into contracts over$100,000 with suspended or debarred contractors and that
they will require their contractors (and their subcontractors)to make the same certification to
them.
Flow Down
Contractors are required to pass this requirement on to subcontractors seeking subcontracts
over$100,000. Thus,the terms "lower tier covered participant" and "lower tier covered
transaction" include both contractors and subcontractors and contracts and subcontracts over
$100,000.
Model Clause/Language
(Instructions)The certification and instruction language is contained at 29 CFR Part 29,
Appendix B, and must be included in IFB's and P.FP's [for inclusion by contractors in their
08/09/01
Federally Required Contract Clauses for Professional Services Contracts 12
bids or proposals] for all contracts over$100,000, regardless of the type of contract to be
awarded. Certification Regarding Debarment, Suspension, and Other Responsibility Matters
Lower Tier Covered Transactions (Third Party Contracts over$100,000).
Instructions for Certification
1. By signing and submitting this bid or proposal,the prospective lower tier participant is
providing the signed certification set out below.
2. The certification in this clause is a material representation of fact upon which reliance was
placed when this transaction was entered into. If it is later determined that the prospective
lower tier participant knowingly rendered an erroneous certification, in addition to other
remedies available to the Federal Government, City of Port Arthur may pursue available
remedies, including suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate written notice to City of
Port Arthur if at any time the prospective lower tier participant learns that its certification
was erroneous when submitted or has become erroneous by reason of changed circumstances.
4. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered
transaction,": "participant," "persons,""lower tier covered transaction,""principal,"
"proposal,"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'l 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 Non-
procurement 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.
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Federally Required Contract Clauses for Professional Services Contracts 13
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.
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 employee's operate a system of records on
behalf of the Federal Government.The Contractor understands that the requirements of the
Privacy Act, including the civil and criminal penalties for violation of that Act, apply to those
individuals involved, and that failure to comply with the terms of the Privacy Act may result
in termination of the underlying contract.
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Federally Required Contract Clauses for Professional Services Contracts 14
(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.
Model Clause/Language
The following clause was predicated on language contained at 49 CFR Part 19,Appendix A,
but FTA has shortened the lengthy text.
Civil Rights -The following requirements apply to the underlying contract:
(1)Nondiscrimination- In accordance with Title VI of the Civil Rights Act, as amended,42
USC § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 USC §
6102, section 202 of the Americans with Disabilities Act of 1990,42 USC § 12132, and
Federal transit law at 49 USC § 5332,the Contractor agrees that it will not discriminate
against any employee or applicant for employment because of race,color, creed, national
origin, sex, age, or disability. In addition,the Contractor agrees to comply with applicable
Federal implementing regulations and other implementing requirements FTA may issue.
(2) Equal Employment Opportunity-The following equal employment opportunity
requirements apply to the underlying contract:
(a)Race, Color, Creed,National Origin, Sex- In accordance with Title VII of the Civil
Rights Act, as amended,42 USC § 2000e, and Federal transit laws at 49 USC § 5332,the
Contractor agrees to comply with all applicable equal employment opportunity requirements
of U.S. Department of Labor(U.S. DOL)regulations, "Office of Federal Contract
Compliance programs, Equal Employment Opportunity, Department of Labor," 41 CFR Parts
60 et seq. (which implement Executive Order No. 11246, "Equal Employment Opportunity,"
as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to
Equal Employment opportunity," 42 USC § 2000e note), and with any applicable Federal
statutes, executive orders,regulations, and Federal policies that may in the future affect
construction activities undertaken in the course of the Project. The Contractor agrees to take
affirmative action to ensure that applicants are employed, and that employees are treated
during employment,without regard to their race, color, creed,national origin, sex, or age.
08/09/01
Federally Required Contract Clauses for Professional Services Contracts 15
Such action shall include,but not be limited to,the following: employment, upgrading,
demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of
pay or other forms of compensation; and selection for training, including apprenticeship. In
addition,the Contractor agrees to comply with any implementing requirements FTA may
issue.
(b)Age - In accordance with section 4 of the Age Discrimination in Employment Act of
1967, as amended, 29 USC § 623 and Federal transit law at 49 USC § 5332,the Contractor
agrees to refrain from discrimination against present and prospective employees for reason of
age. In addition,the Contractor agrees to comply with any implementing requirements FTA
may issue.
(c) Disabilities -In accordance with section 102 of the Americans with Disabilities Act, as
amended, 42 USC § 12112,the Contractor agrees that it will comply with the requirements of
U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal
Employment Provisions of the Americans with Disabilities Act," 29 CFR Part 1630,
pertaining to employment of persons with disabilities. In addition,the Contractor agrees to
comply with any implementing requirements FTA may issue.
(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 4220.1F
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
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[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 therefore shall be made in
writing to such other party within a reasonable time after the first observance of such injury
of damage.
Remedies -Unless this contract provides otherwise, all claims, counterclaims, disputes and
other matters in question between the City of Port Arthur and the Contractor arising out of or
relating to this agreement or its breach will be decided by arbitration if the parties mutually
agree, or in a court of competent jurisdiction within the State in which the City of Port Arthur
is located.
Rights and Remedies-The duties and obligations imposed by the Contract Documents and
the rights and remedies available there under shall be in addition to and not a limitation of
any duties, obligations, rights and remedies otherwise imposed or available by law.No action
or failure to act by the City of Port Arthur, (ENGINEER)or Contractor shall constitute a
waiver of any right or duty afforded any of them under the Contract, nor shall any such action
or failure to act constitute an approval of or acquiescence in any breach there under, 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,
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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. and shall abided by all applicable changes to 49 CFR part 26 (as
of as of the time of contract).
(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 and shall abided by all applicable changes to 49
CFR part 26 (as of as of the time of contract).
The Contractor agrees to ensure that DBE's as defined in 49 CFR Part 26 and Section 106(c)
of the STURAA of 1987, have the maximum opportunity to participate in the whole or in.
part with federal funds provided under this Contract Agreement. In this regard,the
Contractor shall take all necessary and reasonable steps in accordance with the regulations to
ensure that DBE's have the maximum opportunity to compete for and perform subcontracts.
The Contractor shall not discriminate on the basis of race, color,national origin, religion, sex,
age or physical handicap in the award and performance of subcontracts and shall abided by
all applicable changes to 49 CFR part 26 (as of as of the time of contract).
It is further the policy of City of Port Arthur to promote the development and increase the
participation of businesses owned and controlled by disadvantaged. DBE involvement in all
phases of City of Port Arthur's procurement activities is encouraged.
(b) DBE obligation-The Contractor end its subcontractors agree to ensure that
disadvantaged businesses have the maximum opportunity to participate in the performance of
contracts and subcontracts financed in whole or in part with federal funds provided under the
Contract Agreement. In that regard, ell Contractors and subcontractors shall take all
necessary and reasonable steps in accordance with 49 CFR Part 26 as amended,to ensure that
minority business enterprises have the maximum opportunity to compete for end performs
contracts and shall abided by all applicable changes to 49 CFR part 26 (as of as of the time of
contract).
(c)Where the Contractor is found to have failed to exert sufficient reasonable and good faith
efforts to involve DBE's in the work provided,the City of Port Arthur may declare the
Contractor non-complaint end in breach of Contract Agreement.
(d)The Contractor will keep records and documents for a reasonable time following
performance of this Contract Agreement to indicate compliance With City of Port Arthur's
DBE program. These records and documents will be made available at reasonable times and
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Federally Required Contract Clauses for Professional Services Contracts 18
places for inspection by any authorized representative of City of Port Arthur and will be
submitted to City of Port Arthur upon request.
(e) City of Port Arthur will provide affirmative assistance as may be reasonable and
necessary to assist the prime Contractor in implementing their programs for DBE
participation. The assistance may include the following upon request:
* Identification of qualified DBE
* Available listing of Minority Assistance Agencies
* Holding bid conferences to emphasize requirements
2. DBE Program Definitions, as used in the Contract Agreement:
(a) Disadvantaged business "means a small business concern":
i. Which is at least 51 percent owned by one or more socially and economically
disadvantaged individuals,or, in the case of any publicly owned business, at least 51 percent
of the stock of which is owned by one or more socially and economically disadvantaged
individuals; and
ii. Whose management and daily business operations are controlled by one or more of
the socially and economically disadvantaged individuals who own it.
or
iii. Which is at least 51 percent owned by one or more women individuals, or in the
case of any publicly owned business, at least 51 %of the stock of which is owned by one or
more women individuals; and
iv. Whose management and daily business operations are controlled by one or more
women individuals who own it.
(b) "Small business concern" means a small business as defined by Section 3 of the Small
Business Act and Appendix B -
This section is being developed to reflect the new rule in 49 CFR Part 26.
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
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15. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION(FTA)TERMS
FTA Circular 4220.1F
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.
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 4220.1F, dated March 3,2013, and are hereby
incorporated by reference. Anything to the contrary herein notwithstanding, all FTA
mandated terms shall be deemed to control in. the event of a conflict with other provisions
contained in this Agreement. The Contractor shall not perform any act, fail to perform any
act, or refuse to comply with any(of The City of Port Arthur)requests which would cause
(The City of Port Arthur)to be in violation of the FTA terms and conditions.
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