HomeMy WebLinkAboutPR 18615: ONE YEAR CONTRACT WITH DIAMOND SHINE SERVIE, JANITORIAL SERVICES MEMORANDUM
CITY OF PORT ARTHUR, TEXAS
TRANSIT DEPARTMENT
TO: Mr.John A. Comeaux, P.E, Interim City Manager
Colleen Russell,Transit Director
FROM: June Aiken, Administrative Aide
DATE: September 29, 2014
SUBJECT: Proposed Resolution No. 18615
COMMENTS
Recommendation: The Transit Department is requesting that the City Council authorize
a one year contract for Janitorial Services at the Transit Department Complex with
Diamond Shine Building Services of Port Arthur, Texas, in an amount not to exceed
$16,260.00.
Background: Purchasing solicited bids from various vendors on the City's website
(Public Purchase EProcurement System). Bid Packets were e-mailed or downloaded to
seventeen (17) bidders. Two bids were received with one being from a Port Arthur
Vendor. Bids were received and opened on September 19, 2014 from the following
bidders:
Diamond Shine Building Services of Port Arthur, TX $16,260.00
SanServe Building Services of Beaumont, TX $37,176.00
Budgeting and Fiscal Effect: Funding is available within Transit Budget Account
Number 401-1501-561.59-00 - Other Contractual Service.
Staffing Effect: There is no effect on staff.
Summary: The Transit Department is requesting that the City Council authorize the City
Manager to enter into a Janitorial Services contract for the Transit Department Complex
with Diamond Shine Building Services of Port Arthur, Texas, in the not-to-exceed amount
of$16,260.00. Diamond Shine Building Services was the lowest and most responsive bid
received.
P.R. NO. 18615
09/29/2014 JA
RESOLUTION NO.
A RESOLUTION AUTHORIZING A ONE (1) YEAR CONTRACT BETWEEN
THE CITY OF PORT ARTHUR AND DIAMOND SHINE SERVICE OF PORT
ARTHUR, TEXAS, FOR JANITORIAL SERVICES AT THE TRANSIT SERVICE
CENTER AND TRANSIT TERMINAL, IN THE NOT-TO-EXCEED AMOUNT OF
$16,260,00. THE TRANSIT OPERATING GRANT ACCOUNT NUMBER FOR
THIS SERVICE IS 401-1501-561.59-00
WHEREAS, the Transit Department is presently without a contract for janitorial
service; and,
WHEREAS,the Purchasing Division solicited bids from various vendors on the City's
website (Public Purchase EProcurement System); and,
WHEREAS,bid packets were e-mailed or electronically downloaded to seventeen
(17) vendors,with two (2) bids received of which one (1) was a Port Arthur vendor (see
bid tabulation attached as Exhibit"A"); and,
WHEREAS, the City Council deems it is in the best interest of the City to enter into a
contract with Diamond Shine Building Service of Port Arthur, Texas, for janitorial services
for the Transit Service Center and Transit Terminal, in the not-to-exceed amount of
$16,260.00 for a one (1) year period.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
PORT ARTHUR:
THAT,the facts and opinions in the preamble are true and correct.
THAT, the City Manager is hereby authorized and directed to execute on behalf of the
City of Port Arthur a contract, in substantially the same form as attached hereto as Exhibit
"B", between the City of Port Arthur and Diamond Shine Building Services of Port Arthur,
Texas, for janitorial services for the Transit Service Center and Transit Terminal in the not-
to-exceed amount of$16,260.00.
THAT, this agreement can be terminated if funds are not available in any fiscal year
within thirty (30) days notice being given to Diamond Shine Building Service of Port
Arthur, Texas.
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 October, 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:
Deloris "Bobbie" Prince, Mayor
ATTEST:
Sherri Bellard, City Secretary
APPROVED�SS,T�O FORM:
/
Val Tizeno, City A/o rney
APPROVED FOR ADMINISTRATION:
John A. Comeaux, P.E.
Interim City Manager
Colleen Russell, Transit Director
APPROVED AS TO THE AVAILABILITY OF FUNDS:
ALIAtidit4,4
Deborah Echols, Director of Finance
di/ d41.-
Shawna Tubbs, Purchasing Manger
EXHIBIT "A"
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Purchasing Division
444 4`1' Street 2"d Floor
Port Arthur,Texas
(409) 983-8160
Today's Date: September 23, 2014
Seventeen (17) Bids were e-mailed or downloaded.
Two (2) Bids were received.
There were one (1) bids received from Port Arthur Vendors.
Attached is the bid tabulation & copies of the bids for:
Janitorial for Transit Services Center and Terminal
Bid Opening Date: September 19, 2014
Shawna Tubbs,
Purchasing Manager shawna.tuhhsGi portarthurtx.v,ov (409)983-8160
Clifton Williams,Senior
Purchasing Assistant clifton.williams(z portarthurtx.uov (409) 983-8161
Yolanda Coudeaux,
Purchasing Assistant volancfa.goucleaux(uportarthurtxx,ov (409) 983-8177
Carolyn Hale,
Purchasing Secretary Carolvn.halc(a portarthurtx.fov (409) 983-8160
EXHIBIT "B"
JANITORIAL SERVICES CONTRACT
FOR TRANSIT
THIS AGREEMENT, made this day of , 2014, by and between the
City of Port Arthur, a municipal corporation organized under the laws of the State of Texas,
hereinafter called "OWNER" or "CITY" and Diamond Shine Building Services herein acting by
and through , hereinafter called "CONTRACTOR"
agrees as follows:
WITNESSETH: That for and in consideration of the payments, terms, conditions, and
agreements set forth herein, OWNER and CONTRCTOR agree as follows:
1. The term of this Contract shall be for one (1) year from the date stated on the Notice
to Proceed unless sooner terminated under the provision hereof. The City can
terminate this contract at its convenience which includes, but is not limited to,
funding not being available in any budget cycle within thirty (30) days written notice.
2. The CONTRACTOR agrees to perform all the work described in the specifications,
and the contract documents and comply with the terms therein in the not-to-exceed
amount of$16,260.00.
3. The term "Contract Documents" means and includes the following:
(A) Agreement
(B) Advertisement for BIDS
(C) Information for BIDDERS
(D) BID
(E) BID BOND
(F) General Conditions
(G) Specifications
(H) Addendum
4. This agreement shall be binding upon all parties hereto and their respective heirs,
executors, administrators, successors and assigns.
5. INWITNESS WHEREOF, the parties hereto have executed, or caused to be executed
by their duly authorized officials, this Agreement in two (2) copies each of which
shall be deemed an original on the date first written above.
Signed on the day of , 2014.
OWNER:
CITY OF PORT ARTHUR
BY:
John A. Comeaux, P.E.,
Interim City Manager
ATTEST:
City Secretary
Signed on the day of , 2014.
CONTRACTOR:
DIAMOND SHINE BUILDING SERVICES
BY:
Print Name:
Title:
WITNESS:
Print Name:
DELORIS`BOBBIE"PRINCE,MAYOR �. JOHN A.COMEAUX,P.E.
DERRICK FREEMAN,MAYOR PRO TEM C.'irt°r1; t,- � ; } INTERIM CITY MANAGER
COUNCIL MEMBERS: ;/"j '' ` am% SHERRI BELLARD,TRMC
RAYMOND SCOTT,JR. `"."1 - CITY SECRETARY
TIFFANY L.HAMILTON r t AV r 1 Ii tr a
MORRIS ALBRIGHT , VAL TIZENO
STEPHEN A.MOSELY CITY ATTORNEY
WILLIE"BAE"LEWIS,JR.
ROBERT E.WILLIAMSON
KAPRINA RICHARDSON FRANK
SEPTEMBER 10, 2014
INVITATION TO BID
Janitorial Services for the Transit Department
DEADLINE: Sealed Bid submittals must be received and time stamped by 10:00 a.m., Central Standard
Time, Friday, September 19, 2014. (The clock located in the City Secretary's office will be the official
time.) All bids received will be read aloud at 10:15 a.m. on Friday, September 19, 2014 in the City
Council Chambers, City Hall, 5th Floor,Port Arthur,TX. You are invited to attend.
MARK ENVELOPE: Janitorial
DELIVERY ADDRESS: Please submit one(1) original and one(1)copy of your bid to:
CITY OF PORT ARTHUR CITY OF PORT ARTHUR
CITY SECRETARY or CITY SECRETARY
P.O. BOX 1089 444 4TH STREET,4th Floor
PORT ARTHUR,TEXAS 77641 PORT ARTHUR,TEXAS 77640
POINTS OF CONTACT:
Questions concerning the Invitation to Bid and Scope of Work should be directed in writing to:
City of Port Arthur,TX
Yolanda Scypion-Goudeaux, Purchasing Assistant
P.O. Box 1089
Port Arthur,TX 77641
Yolanda.goudeaux0,portarthurtx.gov
Deadline for submission of questions is Monday,September 15,2014 by 10:00 a.m.
Purchasing Division/Finance Department I Purchasing Manager,Shawna Tubbs,CPPO,CPPB
P.O.Box 10891444 4th Street! Port Arthur,Texas 776411 409.983.8160 I Fax 409.983.8291
The enclosed INVITATION TO BID (ITB) and accompanying GENERAL INSTRUCTIONS,
CONDITIONS SPECIFICATIONS, are for your convenience in submitting bids for the enclosed referenced
services for the City of Port Arthur.
Bids must be signed by a person having authority to bind the firm in a contract. Bids shall be placed in a
sealed envelope,with the Vendor's name and address in the upper left-hand corner of the envelope.
ALL BIDS MUST BE RECEIVED IN THE CITY SECRETARY'S OFFICE BEFORE OPENING DATE
AND TIME. It is the sole responsibility of the firm to ensure that the sealed ITB submittal arrives at the
above location by specified deadline regardless of delivery method chosen by the firm. Faxed or
electronically transmitted ITB submittals will not be accepted.
Shawna Tubbs, CPPO, CPPB
Purchasing Manager
Page 2 of 18
MANDATORY
PRE-BID CONFERENCE
A Mandatory Pre-Bid Conference between Representatives of the City of Port Arthur,Texas and prospective
bidders for Janitorial Services for Transit Department will be held on Tuesday, September 16, 2014 at
10:00 a.m. at the Transit Service Center Building located at 320 Dallas Avenue.
The purpose of the Mandatory Pre-Bid Conference is to make certain that the scope of work is fully
understood, to answer any questions, to clarify the intent of the Contract Documents, and to resolve any
problems that may affect the project construction. No addendum will be issued at this meeting, but
subsequent thereto, the Purchasing Manager, if necessary, will issue an addendum(s) to clarify the intent of
the Contract Documents.
Bids received from firms or individuals not listed on the roll of attendees of the Mandatory Pre-Bid
Conference will be rejected and returned unopened to the bidder.
Page 3 of 18
Auk
.i, CITY OF PORT ARTHUR,TEXAS
nrt rtHtrr
-- - ADDENDUM NO. ONE (1)
r..
September 16,2014
•
Bid Proposal For: Janitorial for Transit Buildings
The following clarifications, amendments. deletions, additions, revision and/or modifications are
made a part of the contract documents and change the original documents only in the manner and
to the extent hereinafter stated and shall be incorporated in the contract documents.
Provisions of this addendum shall take precedence over requirements of the original contract
documents and all BIDDERS ARE REQUESTED TO ACKNOWLEDGE SAID
PROVISIONS IN THE SUBMISSION OF THEIR BID.
Addendum as follows:
I. Please replace pages seven (7), eight(8) and nine (9) of current bid packet with the
revised bid packet pages seven(7),eight(8)and nine(9).
• If you have any questions,please contact the Purchasing Division at 409-983-8160.
NOTE: ALL PAGES OF ADDENDA MUST BE SIGNED AND SUBMITTED WITH
YOUR 1311) DOCUMENTS.
• Shawna Tubbs, CPPO, CPPB
Purchasing Manager
09/16/2014
Signature of Proposer Date
•
•
Page 1 of 1
SPECIFICATIONS
FOR
THE TRANSIT DEPARTMENT
SERVICE CENTER AND TRANSIT TERMINAL
SCOPE OF SERVICES:
To set forth the requirements and conditions for performing Janitorial/Cleaning services for locations listed
below. The bidder shall perform the required services in all areas and shall be qualified to furnish a complete
and efficient custodial service, including all labor, supervision, cleaning materials and equipment. The
successful bidder(s) shall be prepared to perform each task as stated according to the work schedule.
Janitorial Services shall be provided (5) nights weekly, Monday through Friday. ALL regular scheduled
NIGHT cleaning listed below MUST be done during the hours of 5:00 p.m. -7:00 p.m.
CONTRACT PERIOD:
The term of this contract shall be for one (1)year. This contract is federally funded through the Federal
Transit Administration. Bidders are advised to review and sign off on the enclosed federal required
contract clauses.
AREAS TO BE CLEANED:
Transit Service Center, 320 Dallas Avenue- Approximately 14,500 sq ft.
Transit Terminal, 300 Procter-Approximately 3,000 sq ft.
EMPLOYEES:
The supervisor's and employees' names and telephone number and supervisor's pager number/cell phone, if
applicable,must be submitted before the contract begins.
Contractor shall supply sufficient employees to maintain the buildings as required in these specifications.
Personnel performing work under this contract shall be direct employees of the Contractor. The Contractor
must ensure that all personnel assigned to this work site have at least one year's experience in the janitorial
services industry, either with the contractor or another janitorial company. Should the maintenance of the
building deteriorate, the Contractor will be notified, in writing, and steps shall be taken by the Contractor to
correct all problems. If the situation has not improved after a reasonable length of time, the Contractor shall
be in violation of the contract and appropriate action shall be taken to rescind the contract.
The City of Port Arthur shall have the right to require the dismissal from the premises covered by the
contract any employee(s) whose conduct is improper, inappropriate, or offensive as determined by the City
of Port Arthur. Any employee so dismissed from working on this contract shall not be allowed to return to
the premises without the written consent of the City. Personnel not employed by the Contractor (including
minors not employed by the contractor) shall not be permitted on the work premises.
INSPECTIONS:
The quality of the janitorial services performed under this contract shall be observed. Unscheduled job-site
inspections will be performed by the City Representative. Any deficiencies or unsatisfactory performance
shall be noted, and corrective action by the Contractor will be required. Continued failure to abide by the
City's specifications will be grounds for termination of the contract. A minimum of one(1)monthly daylight
inspection will be made by the City Representative and Contractor's representative.
Page 4 of 18
REFERENCES/EXPERIENCE:
Each Bidder shall submit a list, with their bid, of five (5) commercial references for their performance of
similar janitorial services. Preferred references are those of similar size and scope of work performed within
the past twelve months. Please include name, address, and telephone number of business along with the
name and title of the person to contact. Bidder shall have a minimum of five (5) years of documented
janitorial service experience.
The Contractor is responsible for instructing his/her employees on appropriate safety measures, including but
not limited to safe use of all chemicals,materials and supplies used to perform these services. Walkways and
halls shall be kept free of unattended mops, brooms, machines and other tools. "Wet floor" signs shall be
displayed in areas being wet or damp mopped. Signs shall be removed and stored after floors have dried.
The contractor shall accompany a Designated City Employee on a tour throughout the areas to receive this
janitorial service to establish and mutually agree upon the condition of surfaces, fixtures, furnishings and
other City and personal property before starting work on this contract. Surfaces, fixtures or furnishings
subsequently damaged by the contractor's employees shall be replaced or repaired to original condition, at
no cost to the city.
The contractor shall obtain and maintain in effect throughout the duration of this contact, all insurance
required by the City of Port Arthur.
SECURITY NOTE:
Bidder will be held responsible for securing all entrances as well as disarming and rearming the
Building's Electronic Security/Fire Alarm System.
QUALITY ASSURANCE:
Providing Transit Management with a Janitorial Services compliance checklist, bi-weekly, will be a
requirement in meeting contract specifications and payment.
CLEANING SERVICES NOT REQUIRED BY BIDDERS:
Bidder will not be required to clean or maintain maintenance office, located within the garage area of the
building. Admittance into the maintenance office is restricted.
Bidder will not be required to clean or maintain Coin Changer Room located off from the Supply Room.
Admittance into this area is restricted.
SUPPLIES FURNISHED BY CONTRACTOR:
Contractor shall furnish all materials and equipment including, but not limited to, cleaners, bowl cleaner,
wax remover and wax, dust mops, damp mops,brooms,buffer, vacuum cleaners, cloths, furniture polish and
anything else pertaining to cleaning as well as plastic liners for trash wastebasket containers.
SUPPLIES NOT FURNISHED BY CONTRACTOR:
Unless directed by Transit Management, contractor is NOT TO furnish paper towels, toilet tissue, deodorant
blocks,or light bulbs.
PRODUCT RESTRICTIONS:
ENDUST is not to be used at any time for any reason in the Transit Service Center and Transit Terminal —
NO EXCEPTIONS.
Page 5 of 18
No harsh cleaners shall be used on wallpaper or vinyl walls.
Do not use furniture polish on any metal surface.
PRODUCT REOUIREMENTS:
Johnson's Over and Under(or equal)
Johnson's Step Ahead (or equal)
All States Chemical's Lemon Glo Furniture Polish(or equal)
Liquid Gold(or equal)
Franklin's Spray Buff(or equal)
Franklin's Disappear(or equal)
PRODUCT REQUIREMENTS FOR CERAMIC TILE CARE MAINTENANCE:
A general purpose cleaner.
Buckeye Cirene Polishing Compound or approved equal.
Excel Floor Finish or approved equal.
Franklin Restore It or approved equal.
NOTE: THE BURDEN OF PROOF PERTAINING TO EQUAL PRODUCT QUALITY OF
REQUESTED MATERIALS SHALL BE THE RESPONSIBILITY OF THE CONTRACTOR.
The following definitions of terms shall be used in evaluating Janitorial services:
Dusting-A properly dusted surface shall be free of all dirt and dust,dust streaks, lint, and cobwebs. Dusting
shall be completed before vacuuming, sweeping/dust mopping.
Sweeping/dust mopping-A properly swept or dust mopped floor shall be free of all dirt, grit,lint and debris.
Vacuuming - A properly vacuumed carpet or floor shall be free of all dirt, dust, grit, lint and debris. All
spots or stains shall be removed by the spot cleaning methods. The machine used to vacuum shall have
adequate suction to lift dirt, grit and debris from the base of the carpet nap (3.5.amps or greater). All stains
shall be removed immediately with an approved carpet cleaning solution in such a manner as to not leave
rings or discoloration.
Wet mopping - A properly wet mopped floor shall be free of all dirt, dust, grit, and debris. Fresh water, to
which odorless detergent or cleaning agent has been added, shall be used with a sponge-type mop to removes
all dirt and marks. Most of the water shall be squeezed from the mop prior to its application to the floor
surface,to prevent free-flowing water from being applied to the floor.
Damp mopping- A properly damp mopped floor shall be free of all dirt, dust, grit, marks and debris. Fresh
water, to which an odorless detergent or cleaning agent has been added, shall be used with a sponge-type
mop to remove all dirt and marks. Most water shall be squeezed from the mop prior to its application to the
floor surface,to prevent free-flowing water from being applied to the floor.
Glass cleaning- A properly cleaned glass/mirror surface shall be free of streaks dust film, deposits, debris,
and stains shall have a uniformly bright appearance. All adjacent surfaces shall be wiped clean. Glass
windows, doors and walls shall be cleaned both sides.
Floor waxing, buffing- A properly waxed and /or buffed floor shall be free of dirt, dust marks, streaks,
debris,built—up wax, and standing waters,and shall have a uniformly bright,lustrous appearance
Sinks water fountain cleaning—these fixtures and their hardware, when properly cleaned, shall be free of
all deposits, stains, streaks, film, and debris and shall be dry polished to a uniformly bright appearance.
Page 6 of 18
Plumbing- fixture, restroom stall, wall, floor cleaning- these restroom surface, when properly cleaned, shall
be free of all deposits, stains, streaks, film, odor, debris, and germs.
CONTRACTOR SHALL PERFORM THE FOLLOWING SPECIFIC ITEMS OF WORK UNDER THIS
CONTRACT:: (Transit Manager may request additional cleaning if needed)
DAILY SERVICES-FIVE (5) TIMES PER WEEK(MONDAY THROUGH FRIDAY):
ADMINISTRATIVE OFFICES AND DRIVER'S ROOM:
All floor surfaces will be swept and/or vacuum all title floors and buff all floors, including office restrooms,
with a 1300 rpm high speed buffer.
All scuff marks will be cleaned.
Clean all furniture to include desks, tables, chairs, file cabinets, bookshelves and telephones taking care not
to disturb papers left on desks.
Clean and wash all Formica counter tops thoroughly.
Clean and polish daily (with stainless steel cleaner/non-abrasive cleaner) the rear office utility sink and
faucet fixture.
Clean doors,door frames, and Formica counter tops with a non—abrasive disinfected cleaner.
All wall switches and area around the wall switches will be kept clean and free of spots, smudges and
foreign.
Clean and wash all ashtrays.
All trash receptacles will be emptied, disinfected and lined. Provide/replace trash can liners as required.
Trash can liners shall be placed be replaced weekly at a minimum, or when they become stained, soiled or
torn. Dispose of trash in outside dumpster provided by the City.
Pick up any trash on floors.
Damp mop with a CLEAN mop all floors as needed, special attention to the floor area next to walls, file
cabinets,bookcases, etc.
RESTROOMS AND SHOWERS:
Restrooms/Shower floors will be cleaned by damp CLEAN mop and rinsing with a disinfecting cleaner.
Clean all mirrors.
Drinking fountains will be cleaned and disinfected and all exposed metal shall be polished and kept free of
foreign matter. Clean, dry polish water fountains with a stainless steel cleaner/ non- abrasive, odorless
cleaner. Cleaning of the fountains should be done daily.
All restrooms/shower fixtures, including lavatory sinks, commodes, and urinals will be scoured and
disinfected and kept free of scales at all times.
All soap,towel, and tissue dispensers will be filled nightly.
Clean doors,door frames, and Formica counter tops with a non—abrasive disinfected cleaner.
Restroom wall and switches will be kept clean and free of spots, smudges and foreign.
Page 7 of 18
WEEKLY SERVICES:
Sweep entire garage area.
Clean oil and grease on garage floor area.
Clean all ventilation ducts and light fixtures in main office.
Clean all cold air return vents in main office ceiling.
Clean ledges and window sills, and mini blinds in main offices.
Lightly strip,wax, and buff all title floors.
BI-WEEKLY SERVICES:
Supervisor will monitor work and see that it is done to specifications. A compliance checklist will be
submitted to Transit Management bi-weekly.
OUARTERLYSERVICES:
Strip, reseal, and wax all tile floors (Administrative offices, Driver's room,restroom, and rear office).
DAILY SERVICES-LOBBY WAITING AREA (MONDAY THROUGH FRIDAY)FOR TRANSIT
TERMINAL:
All floor surfaces will be swept and Mopped with water&required portion of a general purpose cleaner on a
daily basis, additional cleaning maybe requested by Transit Management.
Restore Floors with Franklin Restore It or approved equal and buff with a 1300 rpm high speed buffer as
required after cleaning.
All scuff marks will be cleaned.
Clean and disinfect all table tops, seats and their metal frame assemblies `on a daily basis, additional
cleaning maybe requested by Transit Management.
Empty and wipe out all ashtrays with a damp CLEAN cloth daily.
Clean and wipe down public pay phones stations with a disinfectant cleaner.
Wipe clean walls, money changer facing, and trim, additional cleaning maybe requested by Transit
Management.
All glass doors leading into lobby, lower front glass pane windows, and glass display case doors will be
cleaned to remove smudges and fingerprints.
Clean doors, door frames with a non—abrasive disinfected cleaner
Drinking fountain will be cleaned and disinfected and all exposed metal shall be polished and kept free of
foreign matter. Clean,dry polish water fountain with a non-abrasive, odorless cleaner.
Empty and reline trash containers with new liners.
RESTROOMS:
All floor surfaces will be swept and Mopped with water&required portion of a general purpose cleaner on a
daily basis, additional cleaning maybe requested by Transit Management.
Restore Floors with Franklin Restore It or approved equal and buff with a 1300 rpm high speed buffer as
required after cleaning.
Clean all mirrors.
Page 8 of 18
Drinking fountains will be cleaned and disinfected and all exposed metal shall be polished and kept free of
foreign matter. Clean, dry polish water fountains with a stainless steel cleaner/ non- abrasive, odorless
cleaner. Cleaning of the fountains should be done daily.
All restroom fixtures, including lavatory sinks, commodes, and urinals will be scoured and disinfected and
kept free of scales at all times.
All soap,towel,and tissue dispensers will be filled nightly.
Clean doors,door frames, and Formica counter tops with a non—abrasive disinfected cleaner.
Restroom wall and switches will be kept clean and free of spots, smudges and foreign.
OUTSIDE TRASH RECEPTACLES(MONDAY THROUGH FRIDAY):
Trash Receptacles are to be emptied daily. Change trash liners daily.
OUTSIDE CANOPY WALKWAY AND DRIVEWAY(MONDAY THROUGH FRIDAY):
Pick up trash daily, sweep,and hose down as needed,or as requested by Transit Management.
MECHANICAL AND SUPPLY ROOMS(WEEKLY):
Sweep Floors.
Damp mop with a CLEAN mop and buff vinyl tile floor in Supply Room.
Clean utility sink in Mechanical Room.
Clean cold-air return grill located on the outside wall of Mechanical Room.
Keep the shelving in the Supply Room neat&orderly.
Restore floor with Franklin Restore It or approved equal and buff with 1300 rpm high speed buffer as
required after cleaning.
BI-WEEKLY SERVICES FOR TRANSIT TERMINAL:
Supervisor will monitor work and see that it is done to specification. A compliance checklist will be
submitted to Transit Management bi-weekly.
MONTHLY SERVICES FOR TRANSIT TERMINAL:
Wash out and disinfect all Metal Trash Receptacles Liners(inside and outside) monthly, additional cleaning
maybe requested by Transit Management.
Clean all Ceiling Fan Blades.
Strip,reseal and wax vinyl tile floor located in Supply Room.
OUARTERLY SERVICE FOR TRANSIT TERMINAL:
Strip the Lobby and Restroom Floors with a basic stripping compound;reseal with Buckeye Cirene Polishing
compound & Excel floor finish or approved equal; and buff with a 1300 rpm high speed buffer in order to
restore the finish.
Page 9 of 18
CITY OF PORT ARTHUR, TEXAS
EID SHEET
Pare 1 of 1
BID FOR: Janitorial Services for Transit Service Center and Terminal
BID DUE DATE: September 19.2014
DESCRIPTION UOM QTY UNIT COST TOTAL COST
Transit Center Months 12 $ 685.00 $ 8,220.00
Transit Terminal Months 12 $ 670.00 $ 8,040.00
$ 16,260.00
Diamond Shine Bldg. Svc. 624 Linkwood St.
COMPANY NAME STREET ADDRESS
SIGNATURE OF BIDDER P.O.BOX
Eric Malveaux Port Arthur, TX 77640
PRINT OR TYPE NAME CITY STATE ZIP
Owner (409) 365-9939
TITLE AREA CODE TELEPHONE NO
diamondshine(dAgtrr.com (409) 548-4606
EMAIL FAX NO.
Page 10 0(18
NON-COLLUSION AFFIDAVIT
CITY OF PORT ARTHUR §
STATE OF TEXAS
By the signature below, the signatory for the bidder certifies that neither he nor the firm, corporation,
partnership or institution represented by the signatory or anyone acting for the firm bidding this project has
violated the antitrust laws of this State, codified at Section 15.01, et seq., Texas Business and Commerce
Code, or the Federal antitrust laws, nor communicated directly or indirectly the bid made to any competitor
or any other person engaged in the same line of business,nor has the signatory or anyone acting for the firm,
corporation or institution submitting a bid committed any other act of collusion related to the development
and submission of this bid proposal.
Signature:
Printed Name: Eric Malveaux
Title:
Owner
Company: Diamond Shine Bldg. Svc.
Date: 09/18/2014 Q
SUBSCRIBED and sworn to before me the undersigned authority by t U the S of, 17 on behalf of
said bidder.
Notary • blic in and fo •.e
• to of exas G7 -7
My commission expires: / Z / /
'•' 4.A JARALE JONES
Notary Publx,State of Texas
�., .gym`"�`�r My Com Exp 09.232017
Page 11 of 18
AFFIDAVIT
All pages in Offeror's Responses containing statements, letters, etc., shall be signed by a duly authorized
officer of the company whose signature is binding.
The undersigned offers and agrees to one of the following:
X I hereby certify that I do not have outstanding debts with the City of Port Arthur. I further agree to
pay succeeding debts as they become due.
I hereby certify that I do have outstanding debts with the City of Port Arthur and agree to pay said
debts prior to execution of this agreement. I further agree to pay succeeding debts as they become due.
I hereby certify that I do have outstanding debts with the City of Port Arthur and agree to enter into
an agreement for the payment of said debts. I further agree to pay succeeding debts as they become due.
Diamond Shine Bldg. Svc. 09/18/2014
Firm Name Date
Owner
Authorized ignatnre Title
Eric M veaux (4091 365-9939
Name(p ease print) Telephone
diamondshinedilut.rr.com
Email
STATE: -micas
COUNTY: J 1 ---
SUBSCRIBED AND SWORN to before me by the above named g--6`. Ma-vea.c.W
on this the I U day of —CO ,20 /ti .
Notary Public
RETURN THIS AFFIDAVIT AS PART OF THE BID PROPOSAL
Nn4,p
JARALE JONES
±L` Notary Public,Slate of Texas
.�`, My Corn Exp 09.23.201I
Page 12 of 18
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ
For Vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 1491,80t Leg.,Regular Session.
This questionnaire is being filed in accordance with Chapter 176,Local Government Code by a person who has a business relationship
as defined by Section 176.001(1-a)with a local governmental entity and the person meets requirements under Section 176.006(a).
By law this questionnaire must be filed with the records administrator of the local governmental entity not later than the 7th business
day after the date the person becomes aware of facts that require the statement to be filed.See Section 176.006,Local Government
Code.
A person commits an offense if the person knowingly violates Section 176.006,Local Government Code.An offense under this
section is a Class C misdemeanor.
1.Name of person who has a business relationship with local governmental entity. n/a
2. ❑ Check this box if you are filing an update to a previously filed questionnaire.
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than
7th business day after the date the originally filed questionnaire becomes incomplete or inaccurate.)
3.Name of a local government officer with whom filer has employment or business relationship.
n/a
Name of Officer
This section(item 3 including subparts A,B,C,&D)must be completed for each officer with whom the filer has an employment
or other business relationship as defined by Section 176.001 (1-a),Local Government Code.Attach additional pages to this Form
CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income,other than investment
income,from the filer of the questionnaire?
Yes ❑ No
B. Is the filer of the questionnaire receiving or likely to receive taxable income,other than investment income,from or at the
direction of the local government officer named in this section AND the taxable income is not received from the local
governmental entity?
❑ Yes ❑ No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government
Officer serves as an officer or director,or holds an ownership of 10 percent or more?
Yes E No
D. Describe each employment or business relationship with the local government officer named in this section.
4. fi~- 09/18/2014
Signature of person doing business with the governmental entity Date
Page 13 of 18
GENERAL INFORMATION:
NOTE: It is extremely important that the Vendor, Bidder, and/or Contractor furnish the City of Port
Arthur the required information specified in Bid or Proposal Specifications listed in this Bid Package.
All bids meeting the intent of this request for bid will be considered for award. BIDDERS TAKING
EXCEPTION TO THE SPECIFICATIONS, OR OFFERING SUBSTITUTIONS, SHALL STATE THESE
EXCEPTIONS BY ATTACHMENT AS PART OF THE BID. The absence of such a list shall indicate that
the bidder has not taken exceptions and the City shall hold the bidder responsible to perform in strict
accordance with the specifications of the invitation. The City reserves the right to accept any and all or none
of the exception(s)/substitutions(s) deemed to be in the best interest of the City of Port Arthur.
ALTERING BIDS: Bids cannot be altered or amended after submission deadline. Any interlineations,
alteration, or erasure made before opening time must be initialed by the signer of the bid, guaranteeing
authenticity.
BID AWARD: The City of Port Arthur will review all bids for responsiveness and compliance with these
specifications. The award shall be made to the responsive, responsible bidder who submits the best value
bid.
The City reserves the right to:
1. Reject any and all bids and to make no award if it deems such action to be in its best interest.
2. Award bids on the lump sum or unit price basis,whichever is in the best interest of the City.
3. Reject any or all bids and to waive informalities or defects in bids or to accept such bids as it shall
deem to be in the best interests of the City.
4. Award bids to bidders whose principal place of business is in the City of Port Arthur and whose bid is
within 5% of the lowest bid price, as provided by Section 271.905 of the Texas Government Code.
TERMINOLOGY: "Bid" vs. "Proposal"--For the purpose of this ITB, the terms "Bid" and Proposal" shall
be equivalent.
Bidders are cautioned to read the information contained in this ITB carefully and to submit a complete
response to all requirements and questions as directed.
CONFLICT OF INTEREST: No public official shall have interest in this contract, in accordance with
Vemon's Texas Code Annotated, Local Government Code Title 5, Subtitle C, Chapter 171.
ETHICS: The bidder shall not offer or accept gifts or anything of value nor enter into any business
arrangement with any employee, official or agent of the City of Port Arthur.
MINIMUM STANDARDS FOR RESPONSIBLE PROSPECTIVE BIDDERS: A prospective bidder
must affirmatively demonstrate bidder's responsibility. A prospective bidder must meet the following
requirements:
1. Be able to comply with the required or proposed delivery schedule.
2. Have a satisfactory record of performance.
3. Have a satisfactory record of integrity and ethics.
4. Be otherwise qualified and eligible to receive an award.
Page 14 of 18
5. Be engaged in a full time business and can assume liabilities for any performance or warranty service
required.
6. The City Council shall not award a contract to a company that is in arrears in its obligations to the
City.
7. No payments shall be made to any person of public monies under any contract by the City with such
person until such person has paid all obligations and debts owed to the City, or has made satisfactory
arrangements to pay the same.
ADDENDA: Any interpretations, corrections or changes to the ITB and Specifications will be made by
addenda. Sole issuing authority of addenda shall be vested in the City of Port Arthur Purchasing Manager.
The City assumes no responsibility for the bidder's failure to obtain and/or properly submit any addendum.
Failure to acknowledge and submit any addendum may be cause for the bid to be rejected. It is the vendor's
responsibility to check for any addendums that might have been issued before bid closing date and time.
PORT ARTHUR PRINCIPAL PLACE OF BUSINESS: Any bona fide business that claims the City of
Port Arthur as its principal place of business must have an official business address (office location and
office personnel) in Port Arthur, the principal storage place or facility for the equipment shall be in Port
Arthur and/or the place of domicile for the principal business owner(s) shall be in Port Arthur or such other
definition or interpretation as is provided by state law. Contractors outside the City of Port Arthur are
allowed to bid.
PRICES: The bidder should show in the proposal both the unit price and total amount, where required, of
each item listed. In the event of error or discrepancy in the mathematics,the unit price shall prevail.
PURCHASE ORDER: A purchase order(s) shall be generated by the City of Port Arthur to the successful
bidder. The purchase order number must appear on all itemized invoices.
INVOICES: All invoices shall be mailed directly to the City of Port Arthur, Attn.: Transit, P.O. Box 1089,
Port Arthur,Texas 77641.
PAYMENT: Payment will be made upon receipt of the original invoice and the acceptance of the goods or
services by the City of Port Arthur, in accordance with the State of Texas Prompt Payment Act, Article 601f
V.T.C.S. The City's standard payment terms are net 30, i.e. payment is due 30 days from the date of the
invoice.
SALES TAX: The City of Port Arthur is exempt by law from payment of Texas Sales Tax and Federal
Excise Tax;therefore the proposal shall not include Sales Tax.
VENUE: This agreement will be governed and construed according to the laws of the State of Texas. This
agreement is performable in Port Arthur, Texas,Jefferson County.
COMPLIANCE WITH LAWS: The Contractor shall comply with all applicable laws, ordinances, rules,
orders, regulations and codes of the federal, state and local governments relating to performance of work
herein.
INTEREST OF MEMBERS OF CITY: No member of the governing body of the City, and no other
officer, employee or agent of the City who exercises any functions or responsibilities in connection with the
Page 15 of 18
planning and carrying out of the program, shall have any personal financial interest, direct or indirect, in this
Contract; and,the Contractor shall take appropriate steps to assure compliance.
DELINQUENT PAYMENTS DUE CITY: The City of Port Arthur Code of Ordinances prohibits the City
from granting any license,privilege or paying money to any-one owing delinquent taxes, paving assessments
or any money to the City until such debts are paid or until satisfactory arrangements for payment has been
made. Bidders must complete and sign the AFFIDAVIT included as part of this ITB.
QUANTITIES: Quantities shown are estimated, based on projected use. It is specifically understood and
agreed that these quantities are approximate and any additional quantities will be paid for at the quoted price.
It is further understood that the contractor shall not have any claim against the City of Port Arthur for
quantities less than the estimated amount.
SHIPPING INFORMATION: All bids are to be F.O.B.,City of Port Arthur, Port Arthur,TX 77640
INCORPORATION OF PROVISIONS REQUIRED BY LAW: Each provision and clause required by
law to be inserted into the Contract shall be deemed to be enacted herein and the Contract shall be read and
enforced as though each were included herein. If, through mistake or otherwise, any such provision is not
inserted or is not correctly inserted the Contract shall be amended to make such insertion on application by
either party.
CONTRACTOR'S OBLIGATIONS:The Contractor shall and will,in good workmanlike manner,perform
all work and furnish all supplies and materials, machinery, equipment, facilities and means, except as herein
otherwise expressly specified, necessary or proper to perform and complete all the work required by this
Contract,in accordance with the provisions of this Contract and said specifications.
The apparent silence of these specifications as to any detail or to the apparent omission from it of a detailed
description concerning any point shall be regarded as meaning that only the best commercial practices are to
prevail.
While the purpose of the specifications is to indicate minimum requirements in the way of capability,
performance, construction, and other details, its use is not intended to deprive the City of Port Arthur the
option of selecting goods which may be considered more suitable for the purpose involved.
In the event of conflicts between the written bid proposal and information obtained verbally, the vendor is
specifically advised that the written bid proposal will prevail in the determination of the successful bidder.
Under the Title VI of the Civil Rights Act of 1964, no person shall, on the grounds of race, color, or national
origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance.
TERMINATION FOR CAUSE: If, through any cause, the Contractor shall fail to fulfill in a timely and
proper manner his obligations under this contract, or if the Contractor shall violate any of the covenants,
agreements or stipulations of this contract, the City shall thereupon have the right to terminate this contract
by giving written notice to the Contractor of such termination and specifying the effective date thereof, at
least fifteen (15) days before the effective date of such termination. Notwithstanding the above, the
Contractor shall not be relieved of liability to the City for damages sustained by the City by virtue of any
breach of the contract by the Contractor, and the City may withhold any payments to the Contractor for the
Page 16 of 18
purpose of set-off until such time as the exact amount of damages due the City from the Contractor is
determined.
TERMINATION FOR CONVENIENCE: The City may terminate this contract at any time giving at
least thirty(30) days notice in writing to the Contractor. If the Contract is terminated by the City as provided
herein, the Contractor will be paid for the service that it has performed up to the termination date. If this
contract is terminated due to fault of the Contractor, the previous paragraph hereof relative to termination
shall apply.
RELEASES AND RECEIPTS: The City of Port Arthur before making payments may require the
Contractor to furnish releases or receipts for any or all persons performing work and supplying material or
service to the Contractor, or any sub-contractors for work under this contract, if this is deemed necessary to
protect its interests.
CARE OF WORK: The Contractor shall be responsible for all damages to person or property that occurs
as a result of his fault or negligence in connection with the work performed until completion and final
acceptance by the City.
SUB-CONTRACTS: The Contractor shall not execute an agreement with any sub-contractor or permit any
sub-contractor to perform any work included in this Contract until he has received from the City of Port
Arthur written approval of such agreement.
INSURANCE: All insurance must be written by an insurer licensed to conduct business in the State of
Texas,unless otherwise permitted by Owner. The Contract shall, at his own expense, purchase, maintain and
keep in force insurance that will protect against injury and/or damages which may arise out of or result from
operations under this contract, whether the operations be by himself or by any subcontractor or by anyone
directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable, of
the following types and limits
1. Standard Worker's Compensation Insurance:
2. Commercial General Liability occurrence type insurance City of Port Arthur, its officers,
agents, and employees must be named as an additional insured):
a. Bodily injury $500,000 single limit per occurrence or $500,000 each person/$500,000 per
occurrence for contracts of$100,000 or less; or
Bodily injury$1,000,000 single limit per occurrence or$500,000 each
person/$1,000,000 per occurrence for contracts in excess of$100,000; and,
b. Property Damage$100,000 per occurrence regardless of contract amount; and,
c. Minimum aggregate policy year limit of$1,000,000 for contracts of$100,000 or less; or,
Minimum aggregate policy year limit of$2,000,000 for contracts in excess of$100,000.
3. Commercial Automobile Liability Insurance(Including owned,non-owned and hired vehicles
coverage's).
Page 17 of 18
a. Minimum combined single limit of$500,000 per occurrence, for bodily injury and property
damage.
b. If individual limits are provided,minimum limits are$300,000 per person,$500,000 per
occurrence for bodily injury and $100,000 per occurrence for property damage.
Contractor shall cause Contractor's insurance company or insurance agent to fill in all information required
(including names of insurance agency, contractor and insurance companies, and policy numbers, effective
dates and expiration dates) and to date and sign and do all other things necessary to complete and make into
valid certificates of insurance and pertaining to the above listed items, and before commencing any of the
work and within the time otherwise specified, Contractor shall file completed certificates of insurance with
the Owner.
None of the provisions in said certificate of insurance should be altered or modified in any respect except as
herein expressly authorized. Said CERTIFICATE OF INSURANCE Form should contain a provision that
coverage afforded under the policies will not be altered, modified or canceled unless at least fifteen(15)days
prior written notice has been given to the City of Port Arthur. Contractor shall also file with the City of Port
Arthur valid CERTIFICATE OF INSURANCE on like form from or for all Subcontractors and showing the
Subcontractor (s) as the Insured. Said completed CERTIFICATE OF INSURANCE Form (s) shall in any
event be filed with the City of Port Arthur not more than ten(10) days after execution of this Contract.
NOTICE TO PROCEED: Notice to Proceed shall be issued within ten (10) days of the execution of the
Contract by OWNER. Should there be any reasons why Notice to Proceed cannot be issued within such
period;the time may be extended by mutual agreement between OWNER and CONTRACTOR.
CELL PHONE OR PAGER: The Contractor must have a working cell phone or pager available Monday
through Friday from 8:00 a.m. to 5:00 p.m. so that the City will be able to contact the contractor.
•
Page 18 of 18
Table of Contents
1. Drug and Alcohol Testing
2. Fly America Requirements
3. Buy America Requirements
4. Charter Bus and School Bus Requirements
5. Cargo Preference Requirements
6. Seismic Safety Requirements
7. Energy Conservation Requirements
8. Clean Water Requirements
9. Bus Testing
10. Pre-Award and Post Delivery Audit Requirements
11. Lobbying
12. Access to Records and Reports
13. Federal Changes
14. Bonding Requirements
15. Clean Air
16. Recycled Products
17. Davis-Bacon Act
18. Contract Work Hours and Safety Standards Act
19. Copeland Anti-Kickback Act
20. No Government Obligation to Third Parties
21. Program Fraud and False or Fraudulent Statements and Related Acts
22. Termination
23. Government-wide Debarment and Suspension(Non-procurement)
24. Privacy Act
25. Civil Rights Requirements
26. Breaches and Dispute Resolution
27. Patent and Rights in Data
28. Transit Employee Protective Agreements
29. Disadvantaged Business Enterprises(DBE)
30. State and Local Law Disclaimer
31. Incorporation of Federal Transit Administration(FTA)Terms
Bidders are strongly advised to read and adhere to all signature and contractual
requirements. Requirements are specifically outlined within this Contract
Agreement.Failure to comply with all requirements could result in the bid being
rejected as non-responsive.
Federally Required and other Model Contract Clauses 2
1. DRUG AND ALCOHOL TESTING
49 U.S.C. A5331
49 CFR Parts 653 and 654
Applicability to contracts
The Drug and Alcohol testing provisions apply to Operational Service Contracts.
Flow Down Requirements
Anyone who performs a safety-sensitive function for the City of Port Arthur or subrecipient is
required to comply with 49 CFR 653 and 654,unless the contract is for maintenance services.
Maintenance contractors for non-urbanized area formula program grantees are not subject to
the rules.Also,the rules do not apply to maintenance subcontractors.
Model Clause/Language
Introduction
ETA's drug and alcohol rules,49 CFR 653 and 654,respectively,are unique among the
regulations issued by FTA. First,they require the City of Port Arthur to ensure that any entity
performing a safety-sensitive function on the City of Port Arthur's behalf(usually subrecipients
and/or contractors)implement a complex drug and alcohol testing program that complies with
Parts 653 and 654.Second,the rules condition the receipt of certain kinds of FTA funding on the
City of Port Arthur's compliance with the rules;thus,the City of Port Arthur is not in
compliance with the rules unless every entity that performs a safety-sensitive function on the
City of Port Arthur's behalf is in compliance with the rules.Third,the rules do not specify how
a City of Port Arthur ensures that its subrecipients and/or contractors comply with them.
Drug and Alcohol Testing
The contractor agrees to establish and implement a drug and alcohol testing program that
complies with 49 CFR Parts 653 and 654,produce any documentation necessary to establish its
compliance with Parts 653 and 654,and permit any authorized representative of the United
States Department of Transportation or its operating administrations,the State Oversight
Agency of Texas,or the City of Port Arthur,to inspect the facilities and records associated with
the implementation of the drug and alcohol testing program as required under 49 CFR Parts 653
and 654 and review the testing process.The contractor agrees further to certify annually its
compliance with Parts 653 and 654 before(insert date) and to submit the Management
Information System(MIS) reports before(insert date before March 15) to(insert title and
address of person responsible for receiving information).To certify compliance the contractor
shall use the"Substance Abuse Certifications"in the"Annual List of Certifications and
Assurances for Federal Transit Administration Grants and Cooperative Agreements,"which is
published annually in the Federal Register.The Contractor agrees further to [Select a,b,or c] (a)
submit before (insert date or upon request)a copy of the Policy Statement developed to
implement its drug and alcohol testing program;OR(b) adopt(insert title of the Policy
Statement the recipient wishes the contractor to use) as its policy statement as required under 49
CFR 653 and 654;OR(c) submit for review and approval before (insert date or upon request)a
copy of its Policy Statement developed to implement its drug and alcohol testing program.In
addition,the contractor agrees to: (to be determined by the recipient,but may address areas
such as: the selection of the certified laboratory,substance abuse professional,or Medical
Review Officer,or the use of a consortium).
Federally Required and other Model Contract Clauses 3
2. FLY AMERICA REQUIREMENTS
49 USC§40118
41 CFR Part 301-10
Applicability to Contracts
The Fly America requirements apply to the transportation of persons or property,by air,
between a place in the U.S. and a place outside the U.S.,or between places outside the U.S.,
when the FTA will participate in the costs of such air transportation.Transportation on a
foreign air carrier is permissible when provided by a foreign air carrier under a code share
agreement when the ticket identifies the U.S. air carrier's designator code and flight number.
Transportation by a foreign air carrier is also permissible if there is a bilateral or multilateral air
transportation agreement to which the U.S.Government and a foreign government are parties
and which the Federal DOT has determined meets the requirements of the Fly America Act.
Flow Down Requirements
The Fly America requirements flow down from FTA recipients and subrecipients to first tier
contractors,who are responsible for ensuring that lower tier contractors and subcontractors are
in compliance.
Model Clause/Language
The relevant statutes and regulations do not mandate any specified clause or language. FTA
proposes the following language.
Fly America Requirements-The Contractor agrees to comply with 49 USC§40118 (the"Fly
America" Act)in accordance with the General Services Administration's regulations at 41 CFR
Part 301-10,which provide that recipients and subrecipients of Federal funds and their
contractors are required to use U.S.Flag air carriers for U.S.Government-financed international
air travel and transportation of their personal effects or property,to the extent such service is
available,unless travel by foreign air carrier is a matter of necessity,as defined by the Fly
America Act. The Contractor shall submit,if a foreign air carrier was used,an appropriate
certification or memorandum adequately explaining why service by a U.S.flag air carrier was
not available or why it was necessary to use a foreign air carrier and shall,in any event,provide
a certificate of compliance with the Fly America requirements.The Contractor agrees to include
the requirements of this section in all subcontracts that may involve international air
transportation.
3. BUY AMERICA REQUIREMENTS
49 USC§5323(j)
49 CFR Part 661
Applicability to Contracts
The Buy America requirements apply to the following types of contracts:Construction
Contracts and Acquisition of Goods or Rolling Stock(valued at more than$100,000).
Flow Down
The Buy America requirements flow down from FTA recipients and subrecipients to first tier
contractors,who are responsible for ensuring that lower tier contractors and subcontractors are
in compliance.
• Fea'ly Required and other Model Contrac'auses 4
Mandatory Clause/Language
The Buy America regulation,at 49 CFR§661.13,requires notification of the Buy America
requirements in FTA-funded contracts,but does not specify the language to be used.The
following Language has been developed by FTA.
Buy America-The contractor agrees to comply with 49 USC§5323(j)and 49 CFR Part 661,
which provide that Federal funds may not be obligated unless steel,iron,and manufactured
products used in FTA-funded projects are produced in the United States,unless a waiver has
been granted by FTA or the product is subject to a general waiver.General waivers are listed in
49 CFR§661.7,and include final assembly in the United States for 15 passenger vans and 15
passenger wagons produced by Chrysler Corporation,microcomputer equipment,software,
and small purchases (currently less than$100,000) made with capital,operating,or planning
funds.Separate requirements for rolling stock are set out at 5323(j)(2)(C)and 49 CFR§661.11.
Rolling stock not subject to a general waiver must be manufactured in the United States and
have a 60 percent domestic content.
A bidder or offeror must submit to the FTA recipient the appropriate Buy America certification
(below)with all bids on FTA-funded contracts,except those subject to a general waiver. Bids or
offers that are not accompanied by a completed Buy America certification must be rejected as
non-responsive.This requirement does not apply to lower tier subcontractors.
Certification requirement for procurement of steel,iron, or manufactured products.
Certificate of Compliance with 49 USC§5323(j)(1)
The bidder or offeror hereby certifies that it will meet the requirements of 49 USC§5323(j)(1)
and the applicable regulations in 49 CFR Part 661.
Date
Signature y�
Company Name N /Ft
Title
Certificate of Non-Compliance with 49 USC§5323(j)(1)
The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 USC§
5323(j)(1),but it may qualify for an exception pursuant to 49 USC§5323(j)(2)(B) or(j)(2)(D) and
the regulations in 49 CFR§661.7.
Date
Signature N 1 P
Company Name
• • Fe(41'1 illy Required and other Model Contra.lauses 5
Title
Certification requirement for procurement of buses,other rolling stock and associated
equipment.
Certificate of Compliance with 49 USC§5323(j)(2)(C).
The bidder or offeror hereby certifies that it will comply with the requirements of 49 USC§
5323(j)(2)(C) and the regulations at 49 CFR Part 661.
Date
Signature t\.1 I A
Company Name
Title
Certificate of Non-Compliance with 49 USC§5323(j)(2)(C)
The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 USC§
5323(j)(2)(C),but may qualify for an exception pursuant to 49 USC§5323(j)(2)(B) or (j)(2)(D) and
the regulations in 49 CFR§ 661.7.
Date 14
Signature 1)4
Company Name
Title
4. CHARTER BUS REQUIREMENTS
49 USC§5323(d)
49 CFR Part 604
Applicability to Contracts
The Charter Bus requirements apply to the following type of contract:Operational Service
Contracts.
Flow Down Requirements
The Charter Bus requirements flow down from FTA recipients and subrecipients to first tier
service contractors.
Model Clause/Language
The relevant statutes and regulations do not mandate any specific clause or language.The
following clause has been developed by FTA.
Federally Required and other Model Contract Clauses 6
Charter Service Operations-The contractor agrees to comply with 49 USC§5323(d) and 49 CFR
Part 604,which provides that recipients and subrecipients of FTA assistance are prohibited from
providing charter service using federally funded equipment or facilities if there is at least one
private charter operator willing and able to provide the service,except under one of the
exceptions at 49 CFR§604.9. Any charter service provided under one of the exceptions must be
"incidental," i.e.,it must not interfere with or detract from the provision of mass transportation.
5. SCHOOL BUS REQUIREMENTS
49 USC§5323(F)
49 CFR Part 605
Applicability to Contracts
The School Bus requirements apply to the following type of contract:Operational Service
Contracts.
Flow Down Requirements
The School Bus requirements flow down from FTA recipients and subrecipients to first tier
service contractors.
Model Clause/Language
The relevant statutes and regulations do not mandate any specific clause or language.The
following clause has been developed by FTA.
School Bus Operations-Pursuant to 69 USC§5323(f) and 49 CFR Part 605,recipients and
subrecipients of FTA assistance may not engage in school bus operations exclusively for the
transportation of students and school personnel in competition with private school bus
operators unless qualified under specified exemptions.When operating exclusive school bus
service under an allowable exemption,recipients and subrecipients may not use federally
funded equipment,vehicles,or facilities.
6. CARGO PREFERENCE REQUIREMENTS
46 USC§1241
46 CFR Part 381
Applicability to Contracts
The Cargo Preference requirements apply to all contracts involving equipment,materials,or
commodities that may be transported by ocean vessels.
Flow Down
The Cargo Preference requirements apply to all subcontracts when the subcontract may be
involved with the transport of equipment,material,or commodities by ocean vessel.
Model Clause/Language
The MARAD regulations at 46 CFR§381.7 contain suggested contract clauses.The following
language is proffered by FTA.
Federally Required and other Model Contract Clauses 7
Cargo Preference-Use of United States-Flag Vessels-The contractor agrees: a.to use privately
owned United States-Flag commercial vessels to ship at least 50 percent of the gross tonnage
(computed separately for dry bulk carriers,dry cargo liners,and tankers)involved,whenever
shipping any equipment,material,or commodities pursuant to the underlying contract to the
extent such vessels are available at fair and reasonable rates for United States-Flag commercial
vessels;b. to furnish within 20 working days following the date of loading for shipments
originating within the United States or within 30 working days following the date of leading for
shipments originating outside the United States,a legible copy of a rated,"on-board"
commercial ocean bill-of-lading in English for each shipment of cargo described in the
preceding paragraph to the Division of National Cargo,Office of Market Development,
Maritime Administration,Washington,DC 20590 and to the FTA recipient(through the
contractor in the case of a subcontractor's bill-of-lading.) c. to include these requirements in all
subcontracts issued pursuant to this contract when the subcontract may involve the transport of
equipment,material,or commodities by ocean vessel.
7. SEISMIC SAFETY REQUIREMENTS
42 USC§7701 et seq.49
CFR Part 41
Applicability to Contracts
The Seismic Safety requirements apply only to contracts for the construction of new buildings
or additions to existing buildings.
Flow Down
The Seismic Safety requirements flow down from FTA recipients and subrecipients to first tier
contractors to assure compliance,with the applicable building standards for Seismic Safety,
including the work performed by all subcontractors.
Model Clauses/Language
The regulations do not provide suggested language for third-party contract clauses.The
following language has been developed by FTA.
Seismic Safety-The contractor agrees that any new building or addition to an existing building
will be designed and constructed in accordance with the standards for Seismic Safety required
in Department of Transportation Seismic Safety Regulations 49 CFR Part 41 and will certify to
compliance to the extent required by the regulation.The contractor also agrees to ensure that all
work performed under this contract including work performed by a subcontractor is in
compliance with the standards required by the Seismic Safety Regulations and the certification
of compliance issued on the project.
8. ENERGY CONSERVATION REQUIREMENTS
42 USC§6321 et seq.
49 CFR Part 18
Applicability to Contracts
The Energy Conservation requirements are applicable to all contracts.
Federally Required and other Model Contract Clauses 8
Flow Down
The Energy Conservation requirements extend to all third party contractors and their contracts
at every tier and subrecipients and their subagreements at every tier.
Model Clause/Language
No specific clause is recommended in the regulations because the Energy Conservation
requirements are so dependent on the state energy conservation plan.The following language
has been developed by FTA.
Energy Conservation-The contractor agrees to comply with mandatory standards and policies
relating to energy efficiency which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act.
9. CLEAN WATER REQUIREMENTS
33 USC§1251
Applicability to Contracts
The Clean Water requirements apply to each contract and subcontract which exceeds$100,000.
Flow Down
The Clean Water requirements flow down to FTA recipients and subrecipients at every tier.
Model Clause/Language
While no mandatory clause is contained in the Federal Water Pollution Control Act,as
amended,the following language developed by FTA contains all the mandatory requirements.
Clean Water-(1)The Contractor agrees to comply with all applicable standards,orders or
regulations issued pursuant to the Federal Water Pollution Control Act,as amended,33 USC§
1251 et seq.The Contractor agrees to report each violation to the Purchaser and understands
and agrees that the Purchaser will,in turn,report each violation as required to assure
notification to FTA and the appropriate EPA Regional Office.
(2)The Contractor also agrees to include these requirements in each subcontract exceeding
$100,000 financed in whole or in part with Federal assistance provided by FTA.
10. BUS TESTING
49 USC§5323(c)
49 CFR Part 665
Applicability to Contracts
The Bus Testing requirements pertain only to the acquisition of Rolling Stock/Turnkey.
Flow Down
The Bus Testing requirements should not flow down,except to the turnkey contractor as stated
in Master Agreement.
Model Clause/Language
Fe a
.11y Required and other Model Contra 9
Clause and language therein are merely suggested.49 CFR Part 665 does not contain specific
language to be included in third party contracts but does contain requirements applicable to
subrecipients and third party contractors. Bus Testing Certification and language therein are
merely suggested.
Bus Testing-The Contractor[Manufacturer] agrees to comply with 49 USC§A 5323(c) and
FTA's implementing regulation at 49 CFR Part 665 and shall perform the following:
1) A manufacturer of a new bus model or a bus produced with a major change in components
or configuration shall provide a copy of the final test report to the recipient at a point in the
procurement process specified by the recipient which will be prior to the recipient's final
acceptance of the first vehicle.
2) A manufacturer who releases a report under paragraph 1 above shall provide notice to the
operator of the testing facility that the report is available to the public.
3) If the manufacturer represents that the vehicle was previously tested, the vehicle being sold
should have the identical configuration and major components as the vehicle in the test report,
which must be provided to the recipient prior to recipient's final acceptance of the first vehicle.
If the configuration or components are not identical, the manufacturer shall provide a
description of the change and the manufacturer's basis for concluding that it is not a major
change requiring additional testing.
4) If the manufacturer represents that the vehicle is"grandfathered" (has been used in mass
transit service in the United States before October 1,1988,and is currently being produced
without a major change in configuration or components), the manufacturer shall provide the
name and address of the recipient of such a vehicle and the details of that vehicle's
configuration and major components.
CERTIFICATION OF COMPLIANCE WITH FTA's BUS TESTING REQUIREMENTS
The undersigned [Contractor/Manufacturer] certifies that the vehicle offered in this
procurement complies with 49 USC § A 5323(c) and FTA's implementing regulation at 49 CFR
Part 665.
The undersigned understands that misrepresenting the testing status of a vehicle acquired with
Federal financial assistance may subject the undersigned to civil penalties as outlined in the
Department of Transportation's regulation on Program Fraud Civil Remedies,49 CFR Part 31.
In addition,the undersigned understands that FTA may suspend or debar a manufacturer
under the procedures in 49 CFR Part 29.
Date:
Signature: N I N
Company Name:
Title:
Federally Required and other Model Contract Clauses 10
11. PRE-AWARD AND POST DELIVERY AUDITS REQUIREMENTS
49 USC§5323
49 CFR Part 663
Applicability to Contracts
These requirements apply only to the acquisition of Rolling Stock/Turnkey.
Flow Down
These requirements should not flow down,except to the turnkey contractor as stated in Master
Agreement.
Model Clause/Language
• Clause and language therein are merely suggested.49 CFR Part 663 does not contain
specific language to be included in third party contracts but does contain requirements
applicable to subrecipients and third party contractors.
• Buy America certification is mandated under FTA regulation, "Pre-Award and Post-
Delivery Audits of Rolling Stock Purchases,"49 CFR§663.13.
• Specific language for the Buy America certification is mandated by FTA regulation,
"Buy America Requirements—Surface Transportation Assistance Act of 1982,as amended,"
49 CFR§661.12,but has been modified to include FTA's Buy America requirements codified at
49 USC§A 5323(j).
Pre-Award and Post-Delivery Audit Requirements-The Contractor agrees to comply with 49
USC§5323(1)and FTA's implementing regulation at 49 CFR Part 663 and to submit the
following certifications:
(1) Buy America Requirements:The Contractor shall complete and submit a declaration
certifying either compliance or noncompliance with Buy America. If the Bidder/Offeror certifies
compliance with Buy America,it shall submit documentation which lists 1)component and
subcomponent parts of the rolling stock to be purchased identified by manufacturer of the
parts,their country of origin and costs;and 2) the location of the final assembly point for the
rolling stock,including a description of the activities that will take place at the final assembly
point and the cost of final assembly.
(2)Solicitation Specification Requirements:The Contractor shall submit evidence that it will be
capable of meeting the bid specifications.
(3) Federal Motor Vehicle Safety Standards(FIvIVSS):The Contractor shall submit 1)
manufacturer's FMVSS self-certification sticker information that the vehicle complies with
relevant FMVSS or 2) manufacturer's certified statement that the contracted buses will not be
subject to FMVSS regulations.
BUY AMERICA CERTIFICATE OF COMPLIANCE WITH FTA REQUIREMENTS
• Fed . y Required and other Model Contract auses 11
FOR BUSES,OTHER ROLLING STOCK,OR ASSOCIATED EQUIPMENT
(To be submitted with a bid or offer exceeding the small purchase threshold for Federal assistance
programs,currently set at$100,000.)
Certificate of Compliance
The bidder hereby certifies that it will comply with the requirements of 49 USC §Section
5323(j)(2)(C),Section 165(b)(3) of the Surface Transportation Assistance Act of 1982,as
amended,and the regulations of 49 CFR§ 661.11:
Date: y�
Signature: l
Company Name:
Title:
Certificate of Non-Compliance
The bidder hereby certifies that it cannot comply with the requirements of 49 USC §Section
5323(j)(2)(C) and Section 165(b)(3) of the Surface Transportation Assistance Act of 1982,as
amended,but may qualify for an exception to the requirements consistent with 49 USC§
Sections 5323(j)(2)(B)or(j)(2)(D),Sections 165(b)(2) or (b)(4) of the Surface Transportation
Assistance Act,as amended,and regulations in 49 CFR§661.7.
Date:
Signature: N I A
Company Name:
Title:
12. LOBBYING
31 USC§ 1352
49 CFR Part 19
49 CFR Part 20
Applicability to Contracts
The Lobbying requirements apply to Construction/Architectural and Engineering/Acquisition
of Rolling Stock/Professional Service Contract/Operational Service Contract/Turnkey
contracts.
Flow Down
Federally Required and other Model Contract Clauses 12
The Lobbying requirements mandate the maximum flow down,pursuant to Byrd Anti-
Lobbying Amendment,31 USC§1352(b)(5) and 49 CFR Part 19,Appendix A,Section 7.
Mandatory Clause/Language
-Clause and specific language therein are mandated by 49 CFR Part 19,Appendix A.
Modifications have been made to the Clause pursuant to Section 10 of the Lobbying Disclosure
Act of 1995,PL 104-65 [to be codified at 2 USC§1601,et seq.]
-Lobbying Certification and Disclosure of Lobbying Activities for third party contractors are
mandated by 31 USC§1352(b)(5),as amended by Section 10 of the Lobbying Disclosure Act of
1995,and DOT implementing regulation,"New Restrictions on Lobbying," at 49 CFR§20.110(d)
-Language in Lobbying Certification is mandated by 49 CFR Part 19,Appendix A,Section 7,
which provides that contractors file the certification required by 49 CFR Part 20,Appendix A.
Modifications have been made to the Lobbying Certification pursuant to Section 10 of the
Lobbying Disclosure Act of 1995.
-Use of"Disclosure of Lobbying Activities," Standard Form-LLL set forth in Appendix B of 49
CFR Part 20,as amended by"Government wide Guidance For New Restrictions on Lobbying,"
61 Fed.Reg.1413 (1/19/96)is mandated by 49 CFR Part 20,Appendix A.
Byrd Anti-Lobbying Amendment,31 USC§1352,as amended by the Lobbying Disclosure Act
of 1995,PL 104-65 [to be codified at 2 USC§1601,et seq.] -Contractors who apply or bid for an
award of$100,000 or more shall file the certification required by 49 CFR Part 20, "New
Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used
Federal appropriated funds to pay any person or organization for influencing or attempting to
influence an officer or employee of any agency,a member of Congress,officer or employee of
Congress,or an employee of a member of Congress in connection with obtaining any Federal
contract,grant or any other award covered by 31 USC§1352.Each tier shall also disclose the
name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying
contacts on its behalf with non-Federal funds with respect to that Federal contract, grant or
award covered by 31 USC §1352.Such disclosures are forwarded from tier to tier up to the
recipient.
APPENDIX A,49 CFR Part 20--CERTIFICATION REGARDING LOBBYING
Certification for Contracts,Grants,Loans,and Cooperative Agreements
(To be submitted with each bid or offer exceeding$100,000)
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
Fe�lly Required and other Model Contra, lauses 13
Member of Congress in connection with the awarding of any Federal contract, the making of
any Federal grant, the making of any Federal loan,the entering into of any cooperative
agreement,and the extension,continuation,renewal, amendment,or modification of any
Federal contract, grant,loan,or cooperative agreement.
(2)If any funds other than Federal appropriated funds have been paid or will be paid to any
person for making lobbying contacts to an officer or employee of any agency,a Member of
Congress,an officer or employee of Congress,or an employee of a Member of Congress in
connection with this Federal contract,grant,loan,or cooperative agreement,the undersigned
shall complete and submit Standard Form--LLL, "Disclosure Form to Report Lobbying," in
accordance with its instructions [as amended by"Government wide Guidance for New
Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96). Note: Language in paragraph (2) herein
has been modified in accordance with Section 10 of the Lobbying Disclosure Act of 1995 (PL
104-65, to be codified at 2 USC§1601,et seq.)]
(3) The undersigned shall require that the language of this certification be included in the award
documents for all subawards at all tiers (including subcontracts,subgrants,and contracts under
grants, loans,and cooperative agreements) and that all subrecipients shall certify and disclose
accordingly.
This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into.Submission of this certification is a prerequisite for
making or entering into this transaction imposed by 31, USC§1352(as amended by the
Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be
subject to a civil penalty of not less than$10,000 and not more than$100,000 for each such
failure.
[Note: Pursuant to 31 USC §1352(c)(1)-(2)(A),any person who makes a prohibited expenditure
or fails to file or amend a required certification or disclosure form shall be subject to a civil
penalty of not less than$10,000 and not more than$100,000 for each such expenditure or
failure.]
The Contractor, ,certifies or affirms the truthfulness and accuracy of each
statement of its certification and disclosure,if any. In addition, the Contractor understands and
agrees that the provisions of 31 USC§A 3801,et seq., apply to this certification and disclosure,if
any_,
_ Ardr/. : _ gi ture of Contractor's Authorized Official
/i /oØ/Uj' f I . ' Name and Title of Contractor's Authorized Official
Date
13. ACCESS TO RECORDS AND REPORTS
49 USC§5325
18 CFR§18.36(i)
49 CFR§633.17
Applicability to Contracts
Federally Required and other Model Contract Clauses 14
Reference Chart"Requirements for Access to Records and Reports by Type of Contracts"
Flow Down
FTA does not require the inclusion of these requirements in subcontracts.
Model Clause/Language
The specified language is not mandated by the statutes or regulations referenced,but the
language provided paraphrases the statutory or regulatory language.
Access to Records-The following access to records requirements apply to this Contract:
1.Where the Purchaser is not a State but a local government and is the FTA Recipient or a
subgrantee of the FTA Recipient in accordance with 49 C.F.R.18.36(i),the Contractor agrees to
provide the Purchaser,the FTA Administrator,the Comptroller General of the United States or
any of their authorized representatives access to any books,documents,papers and records of
the Contractor which are directly pertinent to this contract for the purposes of making audits,
examinations,excerpts and transcriptions.Contractor also agrees,pursuant to 49 C.F.R.633.17
to provide the FTA Administrator or his authorized representatives including any PMO
Contractor access to Contractor's records and construction sites pertaining to a major capital
project,defined at 49 USC§5302(a)1,which is receiving federal financial assistance through the
programs described at 49 USC§5307,5309 or 5311.
2.Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA Recipient
in accordance with 49 CFR§633.17,Contractor agrees to provide the Purchaser,the FTA
Administrator or his authorized representatives,including any PMO Contractor,access to the
Contractor's records and construction sites pertaining to a major capital project,defined at 49
USC§5302(a)1,which is receiving federal financial assistance through the programs described
at 49 USC§5307,5309 or 5311.By definition,a major capital project excludes contracts of less
than the simplified acquisition threshold currently set at$100,000.
3.Where the Purchaser enters into a negotiated contract for other than a small purchase or
under the simplified acquisition threshold and is an institution of higher education,a hospital
or other non-profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient
in accordance with 49 CFR§19.48,Contractor agrees to provide the Purchaser,FTA
Administrator,the Comptroller General of the United States or any of their duly authorized
representatives with access to any books,documents,papers and record of the Contractor
which are directly pertinent to this contract for the purposes of making audits,examinations,
excerpts and transcriptions.
4.Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in
accordance with 49 USC§5325(a) enters into a contract for a capital project or improvement
(defined at 49 USC§5302(a)1) through other than competitive bidding,the Contractor shall
make available records related to the contract to the Purchaser,the Secretary of Transportation
and the Comptroller General or any authorized officer or employee of any of them for the
purposes of conducting an audit and inspection.
5.The Contractor agrees to permit any of the foregoing parties to reproduce by any means
whatsoever or to copy excerpts and transcriptions as reasonably needed.
Federally Required and other Model Contract Clauses 15
6.The Contractor agrees to maintain all books,records,accounts and reports required under
this contract for a period of not less than three years after the date of termination or expiration
of this contract,except in the event of litigation or settlement of claims arising from the
performance of this contract,in which case Contractor agrees to maintain same until the
Purchaser,the FTA Administrator,the Comptroller General,or any of their duly authorized
representatives,have disposed of all such litigation,appeals,claims or exceptions related
thereto.Reference 49 CFR§ 18.39(i)(11).
7.FTA does not require the inclusion of these requirements in subcontracts.
Requirements for Access to Records and Reports by Types of Contract
Contract Operatio Turnkey Constructs Architectu Acquisitio Profession
Characteristi nal on ral n of al Services
cs Service Engineeri Rolling
Contract ng Stock
I State
Grantees None Those None None None None
imposed on
a.Contracts state pass
below SAT None thru to Yes,if None None None
($100,000) unlessl Contractor non- unless unless unless
non- competitiv non- non- non-
b.Contracts competiti e award or competitiv competitiv competitiv
above ve award if funded e award e award e award
$100,000/Ca thru2
pital Projects 5307/5309
/5311
II Non State
Grantees Those
Yes3 imposed on Yes Yes Yes Yes
a.Contracts non-state
below SAT Yes3 Grantee Yes Yes Yes Yes
($100,000) pass thru to
b.Contracts Contractor
above
$100,000/Ca
pital Projects
Sources of Authority:
149 USC§5325 (a)
2 49 CFR§633.17
318 CFR§18.36 (i)
14. FEDERAL CHANGES
49 CFR Part 18
Federally Required and other Model Contract Clauses 16
Applicability to Contracts
The Federal Changes requirement applies to all contracts.
Flow Down
The Federal Changes requirement flows down appropriately to each applicable changed
requirement.
Model Clause/Language
No specific language is mandated.The following language has been developed by FTA.
Federal Changes-Contractor shall at all times comply with all applicable FTA regulations,
policies,procedures and directives,including without limitation those listed directly or by
reference in the Agreement(Form FTA MA (6) dated October,1999)between Purchaser and
FTA,as they may be amended or promulgated from time to time during the term of this
contract.Contractor's failure to so comply shall constitute a material breach of this contract.
15. BONDING REQUIREMENTS
Applicability to Contracts-
For those construction or facility improvement contracts or subcontracts exceeding$100,000,
FTA may accept the bonding policy and requirements of the recipient,provided that they meet
the minimum requirements for construction contracts as follows:
a.A bid guarantee from each bidder equivalent to five(5) percent of the bid price.The"bid
guarantees" shall consist of a firm commitment such as a bid bond,certifies check,or other
negotiable instrument accompanying a bid as assurance that the bidder will,upon acceptance of
his bid,execute such contractual documents as may be required within the time specified.
b. A performance bond on the part to the Contractor for 100 percent of the contract price.A
"performance bond"is one executed in connection with a contract to secure fulfillment of all the
contractor's obligations under such contract.
c. A payment bond on the part of the contractor for 100 percent of the contract price.A
"payment bond" is one executed in connection with a contract to assure payment,as required by
law,of all persons supplying labor and material in the execution of the work provided for in the
contract.Payment bond amounts required from Contractors are as follows:
(1)50% of the contract price if the contract price is not more than$1 million;
(2)40% of the contract price if the contract price is more than$1 million but not more than$5
million;or
(3)$2.5 million if the contract price is more than$5 million.
d.A cash deposit,certified check or other negotiable instrument may be accepted by a grantee
in lieu of performance and payment bonds,provided the grantee has established a procedure to
Federally Required and other Model Contract Clauses 17
assure that the interest of FTA is adequately protected. An irrevocable letter of credit would
also satisfy the requirement for a bond.
Flow Down
Bonding requirements flow down to the first tier contractors.
Model Clauses/Language
FTA does not prescribe specific wording to be included in third party contracts. FTA has
prepared sample clauses as follows:
Bid Bond Requirements (Construction)
(a)Bid Security
A Bid Bond must be issued by a fully qualified surety company acceptable to City of Port
Arthur and listed as a company currently authorized under 31 CFR§,Part 223 as possessing a
Certificate of Authority as described thereunder.
(b)Rights Reserved
In submitting this Bid,it is understood and agreed by bidder that the right is reserved by City of
Port Arthur to reject any and all bids,or part of any bid,and it is agreed that the Bid may not be
withdrawn for a period of[ninety (90)] days subsequent to the opening of bids,without the
written consent of City of Port Arthur.
It is also understood and agreed that if the undersigned bidder should withdraw any part or all
of his bid within[ninety (90)] days after the bid opening without the written consent of City of
Port Arthur,shall refuse or be unable to enter into this Contract,as provided above,or refuse or
be unable to furnish adequate and acceptable Performance Bonds and Labor and Material
Payments Bonds,as provided above,or refuse or be unable to furnish adequate and acceptable
insurance,as provided above,he shall forfeit his bid security to the extent of(Recipient's)
damages occasioned by such withdrawal,or refusal,or inability to enter into an agreement,or
provide adequate security therefor.
It is further understood and agreed that to the extent the defaulting bidder's Bid Bond,Certified
Check,Cashier's Check,Treasurer's Check,and/or Official Bank Check(excluding any income
generated thereby which has been retained by City of Port Arthur provided in[Item x"Bid
Security" of the Instructions to Bidders]) shall prove inadequate to fully recompense City of Port
Arthur for the damages occasioned by default,then the undersigned bidder agrees to indemnify
City of Port Arthur and pay over to City of Port Arthur the difference between the bid security
and(Recipient's)total damages,so as to make City of Port Arthur whole.
The undersigned understands that any material alteration of any of the above or any of the
material contained on this form,other than that requested,will render the bid unresponsive.
Performance and Payment Bonding Requirements (Construction)
Federally Required and other Model Contract Clauses 18
The Contractor shall be required to obtain performance and payment bonds as follows:
(a) Performance bonds
1. The penal amount of performance bonds shall be 100 percent of the original contract price,
unless the City of Port Arthur determines that a lesser amount would be adequate for the
protection of the City of Port Arthur
2.The City of Port Arthur may require additional performance bond protection when a contract
price is increased.The increase in protection shall generally equal 100 percent of the increase in
contract price.The City of Port Arthur may secure additional protection by directing the
Contractor to increase the penal amount of the existing bond or to obtain an additional bond.
(b)Payment bonds
1. The penal amount of the payment bonds shall equal:
(i) Fifty percent of the contract price if the contract price is not more than$1 million.
(ii) Forty percent of the contract price if the contract price is more than$1 million but not more
than$5 million;or
(iii)Two and one half million if the contract price is more than$5 million.
2.If the original contract price is$5 million or less,the City of Port Arthur may require
additional protection as required by subparagraph 1 if the contract price is increased.
Performance and Payment Bonding Requirements (Non-Construction)
The Contractor may be required to obtain performance and payment bonds when necessary to
protect the (Recipients)interest.
(a) The following situations may warrant a performance bond:
1.City of Port Arthur property or funds are to be provided to the contractor for use in
performing the contract or as partial compensation(as in retention of salvaged material).
2. A contractor sells assets to or merges with another concern,and the City of Port Arthur,after
recognizing the latter concern as the successor in interest,desires assurance that it is financially
capable.
3.Substantial progress payments are made before delivery of end items starts.
4. Contracts are for dismantling,demolition,or removal of improvements.
(b)When it is determined that a performance bond is required,the Contractor shall be required
to obtain performance bonds as follows:
Federally Required and other Model Contract Clauses 19
1.The penal amount of performance bonds shall be 100 percent of the original contract price,
unless the City of Port Arthur determines that a lesser amount would be adequate for the
protection of the City of Port Arthur
2.The City of Port Arthur may require additional performance bond protection when a contract
price is increased. The increase in protection shall generally equal 100 percent of the increase in
contract price. The City of Port Arthur may secure additional protection by directing the
Contractor to increase the penal amount of the existing bond or to obtain an additional bond.
(c) A payment bond is required only when a performance bond is required,and if the use of
payment bond is in the(Recipient's) interest.
(d)When it is determined that a payment bond is required,the Contractor shall be required to
obtain payment bonds as follows:
1. The penal amount of payment bonds shall equal:
(i) Fifty percent of the contract price if the contract price is not more than$1 million;
(ii) Forty percent of the contract price if the contract price is more than$1 million but not more
than$5 million;or
(iii) Two and one half million if the contract price is increased.
Advance Payment Bonding Requirements
The Contractor may be required to obtain an advance payment bond if the contract contains an
advance payment provision and a performance bond is not furnished.The City of Port Arthur
shall determine the amount of the advance payment bond necessary to protect the City of Port
Arthur
Patent Infringement Bonding Requirements (Patent Indemnity)
The Contractor may be required to obtain a patent indemnity bond if a performance bond is not
furnished and the financial responsibility of the Contractor is unknown or doubtful.The City of
Port Arthur shall determine the amount of the patent indemnity to protect the City of Port
Arthur
Warranty of the Work and Maintenance Bonds
1.The Contractor warrants to City of Port Arthur,the Architect and/or Engineer that all
materials and equipment furnished under this Contract will be of highest quality and new
unless otherwise specified by City of Port Arthur,free from faults and defects and in
conformance with the Contract Documents.All work not so conforming to these standards shall
be considered defective. If required by the [Project Manager],the Contractor shall furnish
satisfactory evidence as to the kind and quality of materials and equipment.
Federally Required and other Model Contract Clauses 20
1 The Work furnished must be of first quality and the workmanship must be the best
obtainable in the various trades.The Work must be of safe,substantial and durable construction
in all respects.The Contractor hereby guarantees the Work against defective materials or faulty
workmanship for a minimum period of one (1)year after Final Payment by City of Port Arthur
and shall replace or repair any defective materials or equipment or faulty workmanship during
the period of the guarantee at no cost to City of Port Arthur As additional security for these
guarantees,the Contractor shall,prior to the release of Final Payment[as provided in Item X
below],furnish separate Maintenance(or Guarantee) Bonds in form acceptable to City of Port
Arthur written by the same corporate surety that provides the Performance Bond and Labor
and Material Payment Bond for this Contract.These bonds shall secure the Contractor's
obligation to replace or repair defective materials and faulty workmanship for a minimum
period of one (1) year after Final Payment and shall be written in an amount equal to ONE
HUNDRED PERCENT (100%) of the CONTRACT SUM,as adjusted (if at all).
16. CLEAN AIR
42 USC§7401 et seq.
40 CFR§ 15.61
49 CFR Part 18
Applicability to Contracts
The Clean Air requirements apply to all contracts exceeding$100,000,including indefinite
quantities where the amount is expected to exceed$100,000 in any year.
Flow Down
The Clean Air requirements flow down to all subcontracts that exceed$100,000.
Model Clauses/Language
No specific language is required. FTA has proposed the following language.
Clean Air- (1) The Contractor agrees to comply with all applicable standards,orders or
regulations issued pursuant to the Clean Air Act,as amended,42 USC§ 7401 et seq. .The
Contractor agrees to report each violation to the Purchaser and understands and agrees that the
Purchaser will,in turn,report each violation as required to assure notification to FTA and the
appropriate EPA Regional Office.
(2)The Contractor also agrees to include these requirements in each subcontract exceeding
$100,000 financed in whole or in part with Federal assistance provided by FTA.
17. RECYCLED PRODUCTS
42 USC§6962
40 CFR Part 247
Executive Order 12873
Applicability to Contracts
The Recycled Products requirements apply to all contracts for items designated by the EPA,
when the purchaser or contractor procures$10,000 or more of one of these items during the
fiscal year,or has procured$10,000 or more of such items in the previous fiscal year,using
Federal funds. New requirements for"recovered materials"will become effective May 1,1996.
Federally Required and other Model Contract Clauses 21
These new regulations apply to all procurement actions involving items designated by the EPA,
where the procuring agency purchases$10,000 or more of one of these items in a fiscal year,or
when the cost of such items purchased during the previous fiscal year was$10,000.
Flow Down
These requirements flow down to all to all contractor and subcontractor tiers.
Model Clause/Language
No specific clause is mandated,but FTA has developed the following language.
Recovered Materials-The contractor agrees to comply with all the requirements of Section 6002
of the Resource Conservation and Recovery Act(RCRA),as amended(42 USC§ 6962),
including but not limited to the regulatory provisions of 40 CFR Part 247,and Executive Order
12873,as they apply to the procurement of the items designated in Subpart B of 40 CFR Part
247.
18. DAVIS-BACON ACT
40 USC§&167;276a-276a-5 (1995)
29 CFR§5 (1995)
Applicability to Contract
Construction contracts over$2,000.00
Flow Down
Applies to third party contractors and subcontractors
Model Clause/Language
(The language in this clause is mandated under the DOL regulations at 29 CFR§5.5.)
(1) Minimum wages-(i) All laborers and mechanics employed or working upon the site of the
work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the
construction or development of the project),will be paid unconditionally and not less often than
once a week,and without subsequent deduction or rebate on any account(except such payroll
deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland
Act(29 CFR Part 3)),the full amount of wages and bona fide fringe benefits(or cash equivalents
thereof) due at time of payment computed at rates not less than those contained in the wage
determination of the Secretary of Labor which is attached hereto and made a part hereof,
regardless of any contractual relationship which may be alleged to exist between the contractor
and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section
1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to
such laborers or mechanics,subject to the provisions of paragraph (1)(iv) of this section;also,
regular contributions made or costs incurred for more than a weekly period (but not less often
than quarterly)under plans,funds,or programs which cover the particular weekly period,are
deemed to be constructively made or incurred during such weekly period.Such laborers and
mechanics shall be paid the appropriate wage rate and fringe benefits on the wage
Federally Required and other Model Contract Clauses 22
determination for the classification of work actually performed,without regard to skill,except
as provided in 29 CFR Part 5.5(a)(4). Laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each classification for the time
actually worked therein:Provided,That the employer's payroll records accurately set forth the
time spent in each classification in which work is performed.The wage determination and the
Davis-Bacon poster (WH-1321) shall be posted at all times by the contractor and its
subcontractors at the site of the work in a prominent and accessible place where it can be easily
seen by the workers.
(ii)Whenever the minimum wage rate prescribed in the contract for a class of laborers or
mechanics includes a fringe benefit which is not expressed as an hourly rate,the contractor shall
either pay the benefit as stated in the wage determination or shall pay another bona fide fringe
benefit or an hourly cash equivalent thereof.
(iii) If the contractor does not make payments to a trustee or other third person,the contractor
may consider as part of the wages of any laborer or mechanic the amount of any costs
reasonably anticipated in providing bona fide fringe benefits under a plan or program,
Provided,That the Secretary of Labor has found,upon the written request of the contractor,that
the applicable standards of the Davis-Bacon Act have been met.The Secretary of Labor may
require the contractor to set aside in a separate account assets for the meeting of obligations
under the plan or program.
(iv)(A)The contracting officer shall require that any class of laborers or mechanics which is not
listed in the wage determination and which is to be employed under the contract shall be
classified in conformance with the wage determination.The contracting officer shall approve an
additional classification and wage rate and fringe benefits therefor only when the following
criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification
in the wage determination;and
(2)The classification is utilized in the area by the construction industry;and
(3) The proposed wage rate,including any bona fide fringe benefits,bears a reasonable
relationship to the wage rates contained in the wage determination.
(B) If the contractor and the laborers and mechanics to be employed in the classification(if
known),or their representatives, and the contracting officer agree on the classification and wage
rate (including the amount designated for fringe benefits where appropriate),a report of the
action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour
Division,Employment Standards Administration,Washington,DC 20210.The Administrator,
or an authorized representative,will approve,modify,or disapprove every additional
classification action within 30 days of receipt and so advise the contracting officer or will notify
the contracting officer within the 30-day period that additional time is necessary.
(C) In the event the contractor,the laborers or mechanics to be employed in the classification or
their representatives,and the contracting officer do not agree on the proposed classification and
Federally Required and other Model Contract Clauses 23
wage rate (including the amount designated for fringe benefits,where appropriate),the
contracting officer shall refer the questions,including the views of all interested parties and the
recommendation of the contracting officer,to the Administrator for determination.The
Administrator,or an authorized representative,will issue a determination with 30 days of
receipt and so advise the contracting officer or will notify the contracting officer within the 30-
day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to
paragraphs(1)(iv) (B) or(C) of this section,shall be paid to all workers performing work in the
classification under this contract from the first day on which work is performed in the
classification.
(2) Withholding-The [insert name of grantee] shall upon its own action or upon written
request of an authorized representative of the Department of Labor withhold or cause to be
withheld from the contractor under this contract or any other Federal contract with the same
prime contractor,or any other federally-assisted contract subject to Davis-Bacon prevailing
wage requirements,which is held by the same prime contractor,so much of the accrued
payments or advances as may be considered necessary to pay laborers and mechanics,
including apprentices,trainees,and helpers,employed by the contractor or any subcontractor
the full amount of wages required by the contract.In the event of failure to pay any laborer or
mechanic,including any apprentice,trainee,or helper,employed or working on the site of the
work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the
construction or development of the project),all or part of the wages required by the contract,
the [insert name of grantee]may,after written notice to the contractor,sponsor,applicant,or
owner,take such action as may be necessary to cause the suspension of any further payment,
advance,or guarantee of funds until such violations have ceased.
(3) Payrolls and basic records- (i)Payrolls and basic records relating thereto shall be maintained
by the contractor during the course of the work and preserved for a period of three years
thereafter for all laborers and mechanics working at the site of the work(or under the United
States Housing Act of 1937,or under the Housing Act of 1949,in the construction or
development of the project).Such records shall contain the name,address,and social security
number of each such worker,his or her correct classification,hourly rates of wages paid
(including rates of contributions or costs anticipated for bona fide fringe benefits or cash
equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act),daily
and weekly number of hours worked,deductions made and actual wages paid.Whenever the
Secretary of Labor has found under 29 CFR§5.5(a)(1)(iv) that the wages of any laborer or
mechanic include the amount of any costs reasonably anticipated in providing benefits under a
plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act,the contractor shall
maintain records which show that the commitment to provide such benefits is enforceable,that
the plan or program is financially responsible,and that the plan or program has been
communicated in writing to the laborers or mechanics affected,and records which show the
costs anticipated or the actual cost incurred in providing such benefits.Contractors employing
apprentices or trainees under approved programs shall maintain written evidence of the
registration of apprenticeship programs and certification of trainee programs,the registration of
the apprentices and trainees,and the ratios and wage rates prescribed in the applicable
programs.
Federally Required and other Model Contract Clauses 24
(ii)(A)The contractor shall submit weekly for each week in which any contract work is
performed a copy of all payrolls to the [insert name of grantee I for transmission to the Federal
Transit Administration.The payrolls submitted shall set out accurately and completely all of the
information required to be maintained under 29 CFR Part 5.This information may be submitted
in any form desired.Optional Form WH-347 is available for this purpose and may be purchased
from the Superintendent of Documents(Federal Stock Number 029-005-00014-4),U.S.
Government Printing Office,Washington,DC 20402.The prime contractor is responsible for the
submission of copies of payrolls by all subcontractors.
(B) Each payroll submitted shall be accompanied by a"Statement of Compliance," signed by the
contractor or subcontractor or his or her agent who pays or supervises the payment of the
persons employed under the contract and shall certify the following:
(1)That the payroll for the payroll period contains the information required to be maintained
under 29 CFR Part 5 and that such information is correct and complete;
(2)That each laborer or mechanic (including each helper,apprentice,and trainee)employed on
the contract during the payroll period has been paid the full weekly wages earned,without
rebate,either directly or indirectly,and that no deductions have been made either directly or
indirectly from the full wages earned,other than permissible deductions as set forth in
Regulations,29 CFR Part 3;
(3)That each laborer or mechanic has been paid not less than the applicable wage rates and
fringe benefits or cash equivalents for the classification of work performed,as specified in the
applicable wage determination incorporated into the contract.
(C)The weekly submission of a properly executed certification set forth on the reverse side of
Optional Form WH-347 shall satisfy the requirement for submission of the"Statement of
Compliance"required by paragraph (3)(ii)(B) of this section.
(D)The falsification of any of the above certifications may subject the contractor or
subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of
title 31 of the United States Code.
(iii) The contractor or subcontractor shall make the records required under paragraph(3)(i) of
this section available for inspection,copying,or transcription by authorized representatives of
the Federal Transit Administration or the Department of Labor,and shall permit such
representatives to interview employees during working hours on the job. If the contractor or
subcontractor fails to submit the required records or to make them available,the Federal agency
may,after written notice to the contractor,sponsor,applicant,or owner,take such action as may
be necessary to cause the suspension of any further payment,advance,or guarantee of funds.
Furthermore,failure to submit the required records upon request or to make such records
available may be grounds for debarment action pursuant to 29 CFR§5.12.
(4) Apprentices and trainees-(i) Apprentices-Apprentices will be permitted to work at less
than the predetermined rate for the work they performed when they are employed pursuant to
Federally Required and other Model Contract Clauses 25
and individually registered in a bona fide apprenticeship program registered with the U.S.
Department of Labor,Employment and Training Administration,Bureau of Apprenticeship
and Training,or with a State Apprenticeship Agency recognized by the Bureau,or if a person is
employed in his or her first 90 days of probationary employment as an apprentice in such an
apprenticeship program,who is not individually registered in the program,but who has been
certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency
(where appropriate) to be eligible for probationary employment as an apprentice.The allowable
ratio of apprentices to journeymen on the job site in any craft classification shall not be greater
than the ratio permitted to the contractor as to the entire work force under the registered
program. Any worker listed on a payroll at an apprentice wage rate,which is not registered or
otherwise employed as stated above,shall be paid not less than the applicable wage rate on the
wage determination for the classification of work actually performed.In addition,any
apprentice performing work on the job site in excess of the ratio permitted under the registered
program shall be paid not less than the applicable wage rate on the wage determination for the
work actually performed. Where a contractor is performing construction on a project in a
locality other than that in which its program is registered,the ratios and wage rates (expressed
in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's
registered program shall be observed. Every apprentice must be paid at not less than the rate
specified in the registered program for the apprentice's level of progress,expressed as a
percentage of the journeymen hourly rate specified in the applicable wage determination.
Apprentices shall be paid fringe benefits in accordance with the provisions of the
apprenticeship program. If the apprenticeship program does not specify fringe benefits,
apprentices must be paid the full amount of fringe benefits listed on the wage determination for
the applicable classification. If the Administrator of the Wage and Hour Division of the U.S.
Department of Labor determines that a different practice prevails for the applicable apprentice
classification,fringes shall be paid in accordance with that determination.In the event the
Bureau of Apprenticeship and Training,or a State Apprenticeship Agency recognized by the
Bureau,withdraws approval of an apprenticeship program,the contractor will no longer be
permitted to utilize apprentices at less than the applicable predetermined rate for the work
performed until an acceptable program is approved.
(ii) Trainees-Except as provided in 29 CFR§5.16,trainees will not be permitted to work at less
than the predetermined rate for the work performed unless they are employed pursuant to and
individually registered in a program which has received prior approval, evidenced by formal
certification by the U.S.Department of Labor,Employment and Training Administration.The
ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan
approved by the Employment and Training Administration. Every trainee must be paid at not
less than the rate specified in the approved program for the trainee's level of progress,
expressed as a percentage of the journeyman hourly rate specified in the applicable wage
determination.Trainees shall be paid fringe benefits in accordance with the provisions of the
trainee program. If the trainee program does not mention fringe benefits,trainees shall be paid
the full amount of fringe benefits listed on the wage determination unless the Administrator of
the Wage and Hour Division determines that there is an apprenticeship program associated
with the corresponding journeyman wage rate on the wage determination which provides for
less than full fringe benefits for apprentices.Any employee listed on the payroll at a trainee rate
who is not registered and participating in a training plan approved by the Employment and
Training Administration shall be paid not less than the applicable wage rate on the wage
Federally Required and other Model Contract Clauses 26
determination for the classification of work actually performed.In addition,any trainee
performing work on the job site in excess of the ratio permitted under the registered program
shall be paid not less than the applicable wage rate on the wage determination for the work
actually performed. In the event the Employment and Training Administration withdraws
approval of a training program,the contractor will no longer be permitted to utilize trainees at
less than the applicable predetermined rate for the work performed until an acceptable program
is approved.
(iii) Equal employment opportunity-The utilization of apprentices,trainees and journeymen
under this part shall be in conformity with the equal employment opportunity requirements of
Executive Order 11246,as amended,and 29 CFR Part 30.
(5) Compliance with Copeland Act requirements-The contractor shall comply with the
requirements of 29 CFR Part 3,which are incorporated by reference in this contract.
(6)Subcontracts-The contractor or subcontractor shall insert in any subcontracts the clauses
contained in 29 CFR §5.5(a)(1) through(10) and such other clauses as the Federal Transit
Administration may by appropriate instructions require,and also a clause requiring the
subcontractors to include these clauses in any lower tier subcontracts.The prime contractor
shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all
the contract clauses in 29 CFR§5.5.
(7) Contract termination:debarment-A breach of the contract clauses in 29 CFR§5.5 may be
grounds for termination of the contract,and for debarment as a contractor and a subcontractor
as provided in 29 CFR§5.12.
(8) Compliance with Davis-Bacon and Related Act requirements-All rulings and
interpretations of the Davis-Bacon and Related Acts contained in 29 CFR Parts 1,3,and 5 are
herein incorporated by reference in this contract.
(9) Disputes concerning labor standards-Disputes arising out of the labor standards provisions
of this contract shall not be subject to the general disputes clause of this contract.Such disputes
shall be resolved in accordance with the procedures of the Department of Labor set forth in 29
CFR Parts 5,6,and 7. Disputes within the meaning of this clause include disputes between the
contractor (or any of its subcontractors) and the contracting agency,the U.S. Department of
Labor,or the employees or their representatives.
(10)Certification of eligibility-(i) By entering into this contract, the contractor certifies that
neither it(nor he or she)nor any person or firm who has an interest in the contractor's firm is a
person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the
Davis-Bacon Act or 29 CFR§5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a
Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR§5.12(a)(1).
(iii)The penalty for making false statements is prescribed in the U.S.Criminal Code,18 USC§
1001.
Federally Required and other Model Contract Clauses 27
19. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
40 USC§327-333 (1995)
29 CFR§5 (1995)
29 CFR§ 1926(1995)
Applicability to Contracts
Section 102 of the Act,which deals with overtime requirements,applies to:
-all construction contracts in excess of$2,000 and;
-all turnkey,rolling stock and operational contracts (excluding contracts for transportation
services)in excess of$2,500.
(The dollar threshold for this requirement is contained in the current regulation 29 CFR§5.15.)
Section 107 of the Act that deals with OSHA requirements applies to construction contracts in
excess of$2,000 only.The requirements of this section do not apply to contracts or subcontracts
for the purchase of supplies or materials or articles normally available on the open market.
Flow Down
Applies to third party contractors and subcontractors.
Model Clauses/Language
Pursuant to Section 102(Overtime):
(These clauses are specifically mandated under DOL regulation 29 CFR§5.5 and when
preparing a construction contract in excess of$2,000 these clauses should be used in conjunction
with the Davis-Bacon Act clauses as discussed previously. For nonconstruction contracts, this is
the only section required along with the payroll section.)
(1)Overtime requirements-No contractor or subcontractor contracting for any part of the
contract work which may require or involve the employment of laborers or mechanics shall
require or permit any such laborer or mechanic in any workweek in which he or she is
employed on such work to work in excess of forty hours in such workweek unless such laborer
or mechanic receives compensation at a rate not less than one and one-half times the basic rate
of pay for all hours worked in excess of forty hours in such workweek.
(2)Violation;liability for unpaid wages;liquidated damages-In the event of any violation of
the clause set forth in paragraph (1) of this section the contractor and any subcontractor
responsible therefor shall be liable for the unpaid wages. In addition,such contractor and
subcontractor shall be liable to the United States for liquidated damages.Such liquidated
damages shall be computed with respect to each individual laborer or mechanic,including
watchmen and guards,employed in violation of the clause set forth in paragraph(1) of this
section,in the sum of$10 for each calendar day on which such individual was required or
permitted to work in excess of the standard workweek of forty hours without payment of the
overtime wages required by the clause set forth in paragraph(1) of this section.
Federally Required and other Model Contract Clauses 28
(3)Withholding for unpaid wages and liquidated damages-The (write in the name of the
grantee or recipient)shall upon its own action or upon written request of an authorized
representative of the Department of Labor withhold or cause to be withheld,from any moneys
payable on account of work performed by the contractor or subcontractor under any such
contract or any other Federal contract with the same prime contractor,or any other federally-
assisted contract subject to the Contract Work Hours and Safety Standards Act,which is held by
the same prime contractor,such sums as may be determined to be necessary to satisfy any
liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as
provided in the clause set forth in paragraph(2) of this section.
(4)Subcontracts-The contractor or subcontractor shall insert in any subcontracts the clauses set
forth in this section and also a clause requiring the subcontractors to include these clauses in
any lower tier subcontracts.The prime contractor shall be responsible for compliance by any
subcontractor or lower tier subcontractor with the clauses set forth in this section.
(Section 102 nonconstruction contracts should also have the following provision:)
(5) Payrolls and basic records-(i) Payrolls and basic records relating thereto shall be maintained
by the contractor during the course of the work and preserved for a period of three years
thereafter for all laborers and mechanics working at the site of the work(or under the United
States Housing Act of 1937,or under the Housing Act of 1949,in the construction or
development of the project).Such records shall contain the name,address,and social security
number of each such worker,his or her correct classification,hourly rates of wages paid
(including rates of contributions or costs anticipated for bona fide fringe benefits or cash
equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act),daily
and weekly number of hours worked,deductions made and actual wages paid.Whenever the
Secretary of Labor has found under 29 CFR§5.5(a)(1)(iv) that the wages of any laborer or
mechanic include the amount of any costs reasonably anticipated in providing benefits under a
plan or program described in section 1(b)(2)(B)of the Davis-Bacon Act,the contractor shall
maintain records which show that the commitment to provide such benefits is enforceable,that
the plan or program is financially responsible,and that the plan or program has been
communicated in writing to the laborers or mechanics affected,and records which show the
costs anticipated or the actual cost incurred in providing such benefits.Contractors employing
apprentices or trainees under approved programs shall maintain written evidence of the
registration of apprenticeship programs and certification of trainee programs,the registration of
the apprentices and trainees,and the ratios and wage rates prescribed in the applicable
programs.
Section 107(OSHA):
(This section is applicable to construction contracts only)
Contract Work Hours and Safety Standards Act-(i)The Contractor agrees to comply with
section 107 of the Contract t Work Hours and Safety Standards Act,40 USC §section 333, and
applicable DOL regulations," Safety and Health Regulations for Construction"29 CFR Part
1926.Among other things,the Contractor agrees that it will not require any laborer or mechanic
to work in unsanitary,hazardous,or dangerous surroundings or working conditions.
Federally Required and other Model Contract Clauses 29
(ii)Subcontracts-The Contractor also agrees to include the requirements of this section in each
subcontract.The term"subcontract"under this section is considered to refer to a person who
agrees to perform any part of the labor or material requirements of a contract for construction,
alteration or repair. A person who undertakes to perform a portion of a contract involving the
furnishing of supplies or materials will be considered a"subcontractor" under this section if the
work in question involves the performance of construction work and is to be performed: (1)
directly on or near the construction site,or (2)by the employer for the specific project on a
customized basis.Thus,a supplier of materials which will become an integral part of the
construction is a"subcontractor" if the supplier fabricates or assembles the goods or materials in
question specifically for the construction project and the work involved may be said to be
construction activity.If the goods or materials in question are ordinarily sold to other customers
from regular inventory,the supplier is not a"subcontractor."The requirements of this section
do not apply to contracts or subcontracts for the purchase of supplies or materials or articles
normally available on the open market.
20. COPELAND ANTI-KICKBACK ACT
40 USC§276c (1995)
29 CFR§3 (1995)
29 CFR§5 (1995)
Applicability to Contracts
All construction contracts in excess of$2,000.
Flow Down
Applicable to all third party contractors and subcontractors.
Model Clauses/Language
3.1 of the Copeland Act makes it clear that the purpose of the Act is to assist in"the enforcement
of the minimum wage provisions of the Davis-Bacon Act."In keeping with this intent DOL has
included a section on the Copeland Act in the mandatory language of the Davis-Bacon
provisions.The language can be found at§5.5(a)(5) of the Davis-Bacon model clauses and reads
as follows:
Compliance with Copeland Act requirements-The contractor shall comply with the
requirements of 29 CFR Part 3,which are incorporated by reference in this contract.
Since there is no specific statutory or regulatory requirements for additional mandatory
language,I would recommend that no additional clauses are necessary for this provision.
21. NO GOVERNMENT OBLIGATION TO THIRD PARTIES
Applicability to Contracts
Applicable to all contracts.
Flow Down
Federally Required and other Model Contract Clauses 30
Not required by statute or regulation for either primary contractors or subcontractors,this
concept should flow down to all levels to clarify,to all parties to the contract,that the Federal
Government does not have contractual liability to third parties,absent specific written consent.
Model Clause/Language
While no specific language is required,FTA has developed the following language.
No Obligation by the Federal Government.
(1)The Purchaser and Contractor acknowledge and agree that,notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the
underlying contract,absent the express written consent by the Federal Government,the Federal
Government is not a party to this contract and shall not be subject to any obligations or
liabilities to the Purchaser,Contractor,or any other party (whether or not a party to that
contract) pertaining to any matter resulting from the underlying contract.
(2)The Contractor agrees to include the above clause in each subcontract financed in whole or
in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be
modified,except to identify the subcontractor who will be subject to its provisions.
22. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED
ACTS
31 USC§3801 et seq.
49 CFR Part 3118 USC§1001
49 USC§5307
Applicability to Contracts
These requirements are applicable to all contracts.
Flow Down
These requirements flow down to contractors and subcontractors who make,present,or submit
covered claims and statements.
Model Clause/Language
These requirements have no specified language,so FTA proffers the following language.
Program Fraud and False or Fraudulent Statements or Related Acts.
(1)The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act
of 1986,as amended,31 USC§3801 et seq. .and U.S. DOT regulations, "Program Fraud Civil
Remedies," 49 CFR Part 31,apply to its actions pertaining to this Project.Upon execution of the
underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any
statement it has made,it makes,it may make,or causes to be made,pertaining to the
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.
Federally Required and other Model Contract Clauses 31
(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.
23. TERMINATION
49 USC Part 18
FTA Circular 4220.1D
Applicability to Contracts
All contracts (with the exception of contracts with nonprofit organizations and institutions of
higher education,)in excess of$10,000 shall contain suitable provisions for termination by the
grantee including the manner by which it will be effected and the basis for settlement. (For
contracts with nonprofit organizations and institutions of higher education the threshold is
$100,000.) In addition,such contracts shall describe conditions under which the contract may be
terminated for default as well as conditions where the contract may be terminated because of
circumstances beyond the control of the contractor.
Flow Down
The termination requirements flow down to all contracts in excess of$10,000,with the exception
of contracts with nonprofit organizations and institutions of higher learning.
Model Clause/Language
FTA does not prescribe the form or content of such clauses.The following are suggestions of
clauses to be used in different types of contracts:
a.Termination for Convenience(General Provision)The City of Port Arthur may terminate this
contract,in whole or in part,at any time by written notice to the Contractor when it is in the
Government's best interest.The Contractor shall be paid its costs,including contract closeout
costs,and profit on work performed up to the time of termination.The Contractor shall
promptly submit its termination claim to City of Port Arthur to be paid the Contractor. If the
Contractor has any property in its possession belonging to the City of Port Arthur,the
Contractor will account for the same,and dispose of it in the manner the City of Port Arthur
directs.
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
Federally Required and other Model Contract Clauses 32
termination on the contractor setting forth the manner in which the Contractor is in default.The
contractor will only be paid the contract price for supplies delivered and accepted,or services
performed in accordance with the manner of performance set forth in the contract.
If it is later determined by the City of Port Arthur that the Contractor had an excusable reason
for not performing,such as a strike,fire,or flood,events which are not the fault of or are
beyond the control of the Contractor,the City of Port Arthur,after setting up a new delivery of
performance schedule,may allow the Contractor to continue work,or treat the termination as a
termination for convenience.
c.Opportunity to Cure (General Provision) The City of Port Arthur in its sole discretion may,in
the case of a termination for breach or default,allow the Contractor [an appropriately short
period of time] in which to cure the defect. In such case,the notice of termination will state the
time period in which cure is permitted and other appropriate conditions
If Contractor fails to remedy to City of Port Arthur's satisfaction the breach or default or any of
the terms,covenants,or conditions of this Contract within[ten(10) days] after receipt by
Contractor or written notice from City of Port Arthur setting forth the nature of said breach or
default,City of Port Arthur shall have the right to terminate the Contract without any further
obligation to Contractor. Any such termination for default shall not in any way operate to
preclude City of Port Arthur from also pursuing all available remedies against Contractor and
its sureties for said breach or default.
d. Waiver of Remedies for any Breach In the event that City of Port Arthur elects to waive its
remedies for any breach by Contractor of any covenant,term or condition of this Contract,such
waiver by City of Port Arthur shall not limit City of Port Arthur's remedies for any succeeding
breach of that or of any other term,covenant,or condition of this Contract.
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.
Federally Required and other Model Contract Clauses 33
g.Termination for Default(Transportation Services) If the Contractor fails to pick up the
commodities or to perform the services,including delivery services,within the time specified in
this contract or any extension or if the Contractor fails to comply with any other provisions of
this contract,the City of Port Arthur may terminate this contract for default.The City of Port
Arthur shall terminate by delivering to the Contractor a Notice of Termination specifying the
nature of default.The Contractor will only be paid the contract price for services performed in
accordance with the manner of performance set forth in this contract.
If this contract is terminated while the Contractor has possession of Recipient goods, the
Contractor shall,upon direction of the City of Port Arthur,protect and preserve the goods until
surrendered to the Recipient or its agent. The Contractor and City of Port Arthur shall agree on
payment for the preservation and protection of goods. Failure to agree on an amount will be
resolved under the Dispute clause.
If,after termination for failure to fulfill contract obligations,it is determined that the Contractor
was not in default,the rights and obligations of the parties shall be the same as if the
termination had been issued for the convenience of the City of Port Arthur
h.Termination for Default(Construction)If the Contractor refuses or fails to prosecute the work
or any separable part,with the diligence that will insure its completion within the time specified
in this contract or any extension or fails to complete the work within this time,or if the
Contractor fails to comply with any other provisions of this contract,the City of Port Arthur
may terminate this contract for default.The City of Port Arthur shall terminate by delivering to
the Contractor a Notice of Termination specifying the nature of the default.In this event,the
Recipient may take over the work and compete it by contract or otherwise,and may take
possession of and use any materials,appliances,and plant on the work site necessary for
completing the work.The Contractor and its sureties shall be liable for any damage to the
Recipient resulting from the Contractor's refusal or failure to complete the work within
specified time,whether or not the Contractor's right to proceed with the work is terminated.
This liability includes any increased costs incurred by the Recipient in completing the work.
The Contractor's right to proceed shall not be terminated nor the Contractor charged with
damages under this clause if-
1. the delay in completing the work arises from unforeseeable causes beyond the control and
without the fault or negligence of the Contractor.Examples of such causes include: acts of God,
acts of the Recipient,acts of another Contractor in the performance of a contract with the
Recipient,epidemics,quarantine restrictions,strikes,freight embargoes;and
2. the contractor,within[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.
Federally Required and other Model Contract Clauses 34
If,after termination of the Contractor's right to proceed,it is determined that the Contractor was
not in default,or that the delay was excusable, the rights and obligations of the parties will be
the same as if the termination had been issued for the convenience of the Recipient.
i.Termination for Convenience or Default(Architect and Engineering)The City of Port Arthur
may terminate this contract in whole or in part,for the Recipient's convenience or because of the
failure of the Contractor to fulfill the contract obligations.The City of Port Arthur shall
terminate by delivering to the Contractor a Notice of Termination specifying the nature,extent,
and effective date of the termination.Upon receipt of the notice,the Contractor shall(1)
immediately discontinue all services affected(unless the notice directs otherwise),and(2)
deliver to the Contracting Officer all data,drawings,specifications,reports,estimates,
summaries,and other information and materials accumulated in performing this contract,
whether completed or in process.
If the termination is for the convenience of the Recipient,the Contracting Officer shall make an
equitable adjustment in the contract price but shall allow no anticipated profit on unperformed
services.
If the termination is for failure of the Contractor to fulfill the contract obligations,the Recipient
may complete the work by contact or otherwise and the Contractor shall be liable for any
additional cost incurred by the Recipient.
If, after termination for failure to fulfill contract obligations,it is determined that the Contractor
was not in default,the rights and obligations of the parties shall be the same as if the
termination had been issued for the convenience of the Recipient.
j.Termination for Convenience of Default(Cost-Type Contracts)The City of Port Arthur may
terminate this contract,or any portion of it,by serving a notice or termination on the
Contractor.The notice shall state whether the termination is for convenience of the City of Port
Arthur or for the default of the Contractor.If the termination is for default,the notice shall state
the manner in which the contractor has failed to perform the requirements of the contract.The
Contractor shall account for any property in its possession paid for from funds received from
the City of Port Arthur,or property supplied to the Contractor by the City of Port Arthur If the
termination is for default,the City of Port Arthur may fix the fee,if the contract provides for a
fee,to be paid the contractor in proportion to the value,if any,of work performed up to the
time of termination.The Contractor shall promptly submit its termination claim to the City of
Port Arthur and the parties shall negotiate the termination settlement to be paid the Contractor.
If the termination is for the convenience of the City of Port Arthur,the Contractor shall be paid
its contract closeout costs,and a fee,if the contract provided for payment of a fee,in proportion
to the work performed up to the time of termination.
If,after serving a notice of termination for default,the City of Port Arthur determines that the
Contractor has an excusable reason for not performing,such as strike,fire,flood,events which
are not the fault of and are beyond the control of the contractor,the City of Port Arthur,after
setting up a new work schedule,may allow the Contractor to continue work,or treat the
termination as a termination for convenience.
Federally Required and other Model Contract Clauses 35
24. GOVERNMENT-WIDE DEBARMENT AND SUSPENSION (NON-PROCUREMENT)
49 CFR Part 29
Executive Order 12549
Applicability to Contracts
Executive Order 12549,as implemented by 49 CFR Part 29,prohibits FTA recipients and sub-
recipients from contracting for goods and services from organizations that have been
suspended or debarred from receiving Federally assisted contracts.As part of their applications
each year,recipients are required to submit a certification to the effect that they will not enter
into contracts over$100,000 with suspended or debarred contractors and that they will require
their contractors (and their subcontractors)to make the same certification to them.
Flow Down
Contractors are required to pass this requirement on to subcontractors seeking subcontracts
over$100,000.Thus,the terms "lower tier covered participant"and "lower tier covered
transaction"include both contractors and subcontractors and contracts and subcontracts over
$100,000.
Model Clause/Language
(Instructions)The certification and instruction language is contained at 29 CFR Part 29,
Appendix B,and must be included in IFB's and RFP's [for inclusion by contractors in their bids
or proposals] for all contracts over$100,000,regardless of the type of contract to be awarded.
Certification Regarding Debarment,Suspension,and Other Responsibility Matters
Lower Tier Covered Transactions (Third Party Contracts over$100,000).
Instructions for Certification
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.
Federally Required and other Model Contract Clauses 36
5.The prospective lower tier participant agrees by submitting this proposal that, should the
proposed covered transaction be entered into,it shall not knowingly enter into any lower tier
covered transaction with a person who is debarred,suspended,declared ineligible,or
voluntarily excluded from participation in this covered transaction,unless authorized in
writing by City of Port Arthur
6. The prospective lower tier participant further agrees by submitting this proposal that it will
include the clause titled"Certification Regarding Debarment,Suspension,Ineligibility and
Voluntary Exclusion-Lower Tier Covered Transaction",without modification,in all lower tier
covered transactions and in all solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective
participant in a lower tier covered transaction that it is not debarred,suspended,ineligible,or
voluntarily excluded from the covered transaction,unless it knows that the certification is
erroneous.A participant may decide the method and frequency by which it determines the
eligibility of its principals. Each participant may,but is not required to,check the
Nonprocurement List issued by U.S. General Service Administration.
8. Nothing contained in the foregoing shall be construed to require establishment of system of
records in order to render in good faith the certification required by this clause.The knowledge
and information of a participant is not required to exceed that which is normally possessed by a
prudent person in the ordinary course of business dealings.
9. Except for transactions authorized under Paragraph 5 of these instructions,if a participant in
a covered transaction knowingly enters into a lower tier covered transaction with a person who
is suspended, debarred,ineligible,or voluntarily excluded from participation in this
transaction,in addition to all remedies available to the Federal Government,City of Port Arthur
may pursue available remedies including suspension and/or debarment.
"Certification Regarding Debarment,Suspension,Ineligibility and Voluntary Exclusion-Lower
Tier Covered Transaction"
(1)The prospective lower tier participant certifies,by submission of this bid or proposal,that
neither it nor its"principals" [as defined at 49 CFR§29.105(p)]is presently debarred,
suspended,proposed for debarment, declared ineligible,or voluntarily excluded from
participation in this transaction by any Federal department or agency.
(2) When the prospective lower tier participant is unable to certify to the statements in this
certification,such prospective participant shall attach an explanation to this proposal.
25. PRIVACY ACT
5 USC§552
Applicability to Contracts
Federally Required and other Model Contract Clauses 37
When a grantee maintains files on drug and alcohol enforcement activities for FTA,and those
files are organized so that information could be retrieved by personal identifier,the Privacy Act
requirements apply to all contracts.
Flow Down
The Federal Privacy Act requirements flow down to each third party contractor and their
contracts at every tier.
Model Clause/Language
The text of the following clause has not been mandated by statute or specific regulation,but has
been developed by FTA.
Contracts Involving Federal Privacy Act Requirements-The following requirements apply to
the Contractor and its employees that administer any system of records on behalf of the Federal
Government under any contract:
(1)The Contractor agrees to comply with,and assures the compliance of its employees with,the
information restrictions and other applicable requirements of the Privacy Act of 1974,
5 USC§552a.Among other things,the Contractor agrees to obtain the express consent of the
Federal Government before the Contractor or its employees operate a system of records on
behalf of the Federal Government.The Contractor understands that the requirements of the
Privacy Act,including the civil and criminal penalties for violation of that Act,apply to those
individuals involved,and that failure to comply with the terms of the Privacy Act may result in
termination of the underlying contract.
(2)The Contractor also agrees to include these requirements in each subcontract to administer
any system of records on behalf of the Federal Government financed in whole or in part with
Federal assistance provided by FTA.
26. 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 shorten the lengthy text.
Federally Required and other Model Contract Clauses 38
Civil Rights-The following requirements apply to the underlying contract:
(1) Nondiscrimination-In accordance with Title VI of the Civil Rights Act,as amended,42 USC
§2000d,section 303 of the Age Discrimination Act of 1975,as amended,42 USC§6102,section
202 of the Americans with Disabilities Act of 1990,42 USC§12132,and Federal transit law at 49
USC§5332,the Contractor agrees that it will not discriminate against any employee or
applicant for employment because of race,color,creed,national origin,sex,age,or disability.In
addition,the Contractor agrees to comply with applicable Federal implementing regulations
and other implementing requirements FTA may issue.
(2) Equal Employment Opportunity-The following equal employment opportunity
requirements apply to the underlying contract
(a) Race,Color,Creed,National Origin,Sex-In accordance with Title VII of the Civil Rights
Act,as amended,42 USC§2000e,and Federal transit laws at 49 USC§5332,the Contractor
agrees to comply with all applicable equal employment opportunity requirements of U.S.
Department of Labor(U.S.DOL) regulations,"Office of Federal Contract Compliance Programs,
Equal Employment Opportunity,Department of Labor,"41 CFR Parts 60 et seq. ., (which
implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by
Executive Order No.11375,"Amending Executive Order 11246 Relating to Equal Employment
Opportunity,"42 USC§ 2000e note),and with any applicable Federal statutes,executive orders,
regulations,and Federal policies that may in the future affect construction activities undertaken
in the course of the Project.The Contractor agrees to take affirmative action to ensure that
applicants are employed,and that employees are treated during employment,without regard to
their race,color,creed,national origin,sex,or age.Such action shall include,but not be limited
to,the following: employment,upgrading,demotion or transfer,recruitment or recruitment
advertising,layoff or termination;rates of pay or other forms of compensation;and selection for
training,including apprenticeship.In addition,the Contractor agrees to comply with any
implementing requirements FTA may issue.
(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.
27. BREACHES AND DISPUTE RESOLUTION
Federally Required and other Model Contract Clauses 39
49 CFR Part 18
FTA Circular 4220.1D
Applicability to Contracts
All contracts in excess of$100,000 shall contain provisions or conditions which will allow for
administrative,contractual,or legal remedies in instances where contractors violate or breach
contract terms,and provide for such sanctions and penalties as may be appropriate. This may
include provisions for bonding,penalties for late or inadequate performance,retained earnings,
liquidated damages or other appropriate measures.
Flow Down
The Breaches and Dispute Resolutions requirements flow down to all tiers.
Model Clauses/Language
FTA does not prescribe the form or content of such provisions.What provisions are developed
will depend on the circumstances and the type of contract.Recipients should consult legal
counsel in developing appropriate clauses.The following clauses are examples of provisions
from various FTA third party contracts.
Disputes-Disputes arising in the performance of this Contract which are not resolved by
agreement of the parties shall be decided in writing by the authorized representative of City of
Port Arthur's [title of employee].This decision shall be final and conclusive unless within[ten
(10)] days from the date of receipt of its copy,the Contractor mails or otherwise furnishes a
written appeal to the[title of employee].In connection with any such appeal,the Contractor
shall be afforded an opportunity to be heard and to offer evidence in support of its position.The
decision of the [title of employee] shall be binding upon the Contractor and the Contractor shall
abide be the decision.
Performance During Dispute-Unless otherwise directed by City of Port Arthur,Contractor
shall continue performance under this Contract while matters in dispute are being resolved.
Claims for Damages-Should either party to the Contract suffer injury or damage to person or
property because of any act or omission of the party or of any of his employees,agents or others
for whose acts he is legally liable,a claim for damages therefor shall be made in writing to such
other party within a reasonable time after the first observance of such injury of damage.
Remedies-Unless this contract provides otherwise,all claims,counterclaims, disputes and
other matters in question between the City of Port Arthur and the Contractor arising out of or
relating to this agreement or its breach will be decided by arbitration if the parties mutually
agree,or in a court of competent jurisdiction within the State in which the City of Port Arthur is
located.
Rights and Remedies-The duties and obligations imposed by the Contract Documents and the
rights and remedies available thereunder shall be in addition to and not a limitation of any
duties,obligations,rights and remedies otherwise imposed or available by law.No action or
failure to act by the City of Port Arthur, (Architect)or Contractor shall constitute a waiver of
any right or duty afforded any of them under the Contract,nor shall any such action or failure
Federally Required and other Model Contract Clauses 40
to act constitute an approval of or acquiescence in any breach thereunder,except as may be
specifically agreed in writing.
28. PATENT AND RIGHTS IN DATA
37 CFR Part 401
49 CFR Parts 18 and 19
Applicability to Contracts
Patent and rights in data requirements for federally assisted projects ONLY apply to research
projects in which FTA finances the purpose of the grant is to finance the development of a
product or information.These patent and data rights requirements do not apply to capital
projects or operating projects,even though a small portion of the sales price may cover the cost
of product development or writing the user's manual.
Flow Down
The Patent and Rights in Data requirements apply to all contractors and their contracts at every
tier.
Model Clause/Language
The FTA patent clause is substantially similar to the text of 49 CFR Part 19,Appendix A,Section
5,but the rights in data clause reflects FTA objectives. For patent rights,FTA is governed by
Federal law and regulation. For data rights,the text on copyrights is insufficient to meet FTA's
purposes for awarding research grants.This model clause,with larger rights as a standard,is
proposed with the understanding that this standard could be modified to FTA's needs.
CONTRACTS INVOLVING EXPERIMENTAL,DEVELOPMENTAL,OR RESEARCH WORK.
A.Rights in Data-This following requirement applies to each contract involving experimental,
developmental or research work:
(1)The term"subject data"used in this clause means recorded information,whether or not
copyrighted,that is delivered or specified to be delivered under the contract.The term includes
graphic or pictorial delineation in media such as drawings or photographs;text in specifications
or related performance or design-type documents;machine forms such as punched cards,
magnetic tape,or computer memory printouts;and information retained in computer memory.
Examples include,but are not limited to:computer software,engineering drawings and
associated lists,specifications,standards,process sheets,manuals,technical reports,catalog
item identifications,and related information.The term"subject data"does not include financial
reports,cost analyses,and similar information incidental to contract administration.
(2)The following restrictions apply to all subject data first produced in the performance of the
contract to which this Attachment has been added:
(a) Except for its own internal use,the Purchaser or Contractor may not publish or reproduce
subject data in whole or in part,or in any manner or form,nor may the Purchaser or Contractor
authorize others to do so,without the written consent of the Federal Government,until such
time as the Federal Government may have either released or approved the release of such data
Federally Required and other Model Contract Clauses 41
to the public;this restriction on publication,however,does not apply to any contract with an
academic institution.
(b) In accordance with 49 CFR§18.34 and 49 CFR§19.36,the Federal Government reserves a
royalty-free,non-exclusive and irrevocable license to reproduce,publish,or otherwise use,and
to authorize others to use,for"Federal Government purposes," any subject data or copyright
described in subsections(2)(b)1 and(2)(b)2 of this clause below.As used in the previous
sentence, "for Federal Government purposes,"means use only for the direct purposes of the
Federal Government.Without the copyright owner's consent,the Federal Government may not
extend its Federal license to any other party.
1. Any subject data developed under that contract, whether or not a copyright has been
obtained;and
2.Any rights of copyright purchased by the Purchaser or Contractor using Federal assistance in
whole or in part provided by FTA.
(c)When FTA awards Federal assistance for experimental,developmental,or research work,it
is FTA's general intention to increase transportation knowledge available to the public,rather
than to restrict the benefits resulting from the work to participants in that work.Therefore,
unless FTA determines otherwise,the Purchaser and the Contractor performing experimental,
developmental,or research work required by the underlying contract to which this Attachment
is added agrees to permit FTA to make available to the public,either FTA's license in the
copyright to any subject data developed in the course of that contract,or a copy of the subject
data first produced under the contract for which a copyright has not been obtained. If the
experimental,developmental,or research work,which is the subject of the underlying contract,
is not completed for any reason whatsoever,all data developed under that contract shall
become subject data as defined in subsection(a) of this clause and shall be delivered as the
Federal Government may direct.This subsection(c),however,does not apply to adaptations of
automatic data processing equipment or programs for the Purchaser or Contractor's use whose
costs are financed in whole or in part with Federal assistance provided by FTA for
transportation capital projects.
(d) Unless prohibited by state law,upon request by the Federal Government,the Purchaser and
the Contractor agree to indemnify,save,and hold harmless the Federal Government,its
officers,agents,and employees acting within the scope of their official duties against any
liability,including costs and expenses,resulting from any willful or intentional violation by the
Purchaser or Contractor of proprietary rights,copyrights,or right of privacy,arising out of the
publication,translation,reproduction, delivery,use,or disposition of any data furnished under
that contract. Neither the Purchaser nor the Contractor shall be required to indemnify the
Federal Government for any such liability arising out of the wrongful act of any employee,
official,or agents of the Federal Government.
(e) Nothing contained in this clause on rights in data shall imply a license to the Federal
Government under any patent or be construed as affecting the scope of any license or other
right otherwise granted to the Federal Government under any patent.
Federally Required and other Model Contract Clauses 42
(f)Data developed by the Purchaser or Contractor and financed entirely without using Federal
assistance provided by the Federal Government that has been incorporated into work required
by the underlying contract to which this Attachment has been added is exempt from the
requirements of subsections (b),(c),and(d)of this clause,provided that the Purchaser or
Contractor identifies that data in writing at the time of delivery of the contract work.
(g) Unless FTA determines otherwise,the Contractor agrees to include these requirements in
each subcontract for experimental, developmental,or research work financed in whole or in
part with Federal assistance provided by FTA.
(3) Unless the Federal Government later makes a contrary determination in writing,irrespective
of the Contractor's status (i.e.,a large business,small business,state government or state
instrumentality,local government,nonprofit organization,institution of higher education,
individual,etc.), the Purchaser and the Contractor agree to take the necessary actions to
provide,through FTA,those rights in that invention due the Federal Government as described
in U.S. Department of Commerce regulations, "Rights to Inventions Made by Nonprofit
Organizations and Small Business Firms Under Government Grants,Contracts and Cooperative
Agreements,"37 CFR Part 401.
(4) The Contractor also agrees to include these requirements in each subcontract for
experimental,developmental,or research work financed in whole or in part with Federal
assistance provided by FTA.
B. Patent Rights-these following requirements apply to each contract involving experimental,
developmental,or research work:
(1) General-If any invention,improvement,or discovery is conceived or first actually reduced
to practice in the course of or under the contract to which this Attachment has been added,and
that invention,improvement,or discovery is patentable under the laws of the United States of
America or any foreign country,the Purchaser and Contractor agree to take actions necessary to
provide immediate notice and a detailed report to the party at a higher tier until FTA is
ultimately notified.
(2) Unless the Federal Government later makes a contrary determination in writing,irrespective
of the Contractor's status(a large business,small business,state government or state
instrumentality,local government,nonprofit organization,institution of higher education,
individual),the Purchaser and the Contractor agree to take the necessary actions to provide,
through FTA, those rights in that invention due the Federal Government as described in U.S.
Department of Commerce regulations,"Rights to Inventions Made by Nonprofit Organizations
and Small Business Firms Under Government Grants,Contracts and Cooperative Agreements,"
37 CFR Part 401.
(3)The Contractor also agrees to include the requirements of this clause in each subcontract for
experimental,developmental,or research work financed in whole or in part with Federal
assistance provided by FTA.
29. TRANSIT EMPLOYEE PROTECTIVE AGREEMENTS
Federally Required and other Model Contract Clauses 43
49 USC§5310, §5311,and§5333
29 CFR Part 215
Applicability to Contracts
The Transit Employee Protective Provisions apply to each contract for transit operations
performed by employees of a Contractor recognized by FTA to be a transit operator. (Because
transit operations involve many activities apart from directly driving or operating transit
vehicles,FTA determines which activities constitute transit"operations"for purposes of this
clause.)
Flow Down
These provisions are applicable to all contracts and subcontracts at every tier.
Model Clause/Language
Since no mandatory language is specified,FTA had developed the following language.Transit
Employee Protective Provisions. (1)The Contractor agrees to the comply with applicable transit
employee protective requirements as follows:
(a) General Transit Employee Protective Requirements-To the extent that FTA determines that
transit operations are involved,the Contractor agrees to carry out the transit operations work
on the underlying contract in compliance with terms and conditions determined by the U.S.
Secretary of Labor to be fair and equitable to protect the interests of employees employed under
this contract and to meet the employee protective requirements of 49 USC§ A 5333(b),and U.S.
DOL guidelines at 29 CFR Part 215,and any amendments thereto.These terms and conditions
are identified in the letter of certification from the U.S. DOL to FTA applicable to the FTA
Recipient's project from which Federal assistance is provided to support work on the
underlying contract.The Contractor agrees to carry out that work in compliance with the
conditions stated in that U.S. DOL letter.The requirements of this subsection(1),however,do
not apply to any contract financed with Federal assistance provided by FTA either for projects
for elderly individuals and individuals with disabilities authorized by 49 USC§5310(a)(2),or
for projects for nonurbanized areas authorized by 49 USC§5311.Alternate provisions for those
projects are set forth in subsections (b) and (c) of this clause.
(b)Transit Employee Protective Requirements for Projects Authorized by 49 USC§5310(a)(2)
for Elderly Individuals and Individuals with Disabilities-If the contract involves transit
operations financed in whole or in part with Federal assistance authorized by 49 USC§
5310(a)(2),and if the U.S.Secretary of Transportation has determined or determines in the
future that the employee protective requirements of 49 USC§5333(b)are necessary or
appropriate for the state and the public body subrecipient for which work is performed on the
underlying contract,the Contractor agrees to carry out the Project in compliance with the terms
and conditions determined by the U.S.Secretary of Labor to meet the requirements of 49 USC§
5333(b),U.S. DOL guidelines at 29 CFR Part 215,and any amendments thereto.These terms and
conditions are identified in the U.S.DOL's letter of certification to FTA,the date of which is set
forth Grant Agreement or Cooperative Agreement with the state.The Contractor agrees to
perform transit operations in connection with the underlying contract in compliance with the
conditions stated in that U.S.DOL letter.
Federally Required and other Model Contract Clauses 44
(c) Transit Employee Protective Requirements for Projects Authorized by 49 USC§5311 in
Nonurbanized Areas-If the contract involves transit operations financed in whole or in part
with Federal assistance authorized by 49 USC§5311,the Contractor agrees to comply with the
terms and conditions of the Special Warranty for the Nonurbanized Area Program agreed to by
the U.S.Secretaries of Transportation and Labor,dated May 31,1979,and the procedures
implemented by U.S. DOL or any revision thereto.
(2)The Contractor also agrees to include the any applicable requirements in each subcontract
involving transit operations financed in whole or in part with Federal assistance provided by
FTA.
30. DISADVANTAGED BUSINESS ENTERPRISE (DBE)
49 CFR Part 26
Applicability to Contracts
DEE provisions only apply to all DOT-assisted contracts. Disadvantaged Business Enterprise
Provision
1. The Federal Fiscal Year goal has been set by City of Port Arthur in an attempt to match
projected procurements with available qualified disadvantaged businesses.City of Port
Arthur's goals for budgeted service contracts,bus parts,and other material and supplies for
Disadvantaged Business Enterprises have been established by City of Port Arthur as set forth by
the Department of Transportation Regulations 49 CFR Part 23,March 31,1980,and amended by
Section 106(c) of the Surface Transportation Assistance Act of 1987,and is considered pertinent
to any Contract Agreement resulting from this request for proposal.
If a specific DBE goal is assigned to this Contract Agreement,it will be clearly stated in the
Special Specifications,and if the Contractor is found to have failed to exert sufficient,
reasonable,and good faith efforts to involve DBE's in the work provided,City of Port Arthur
may declare the Contractor non-complaint end in breach of Contract Agreement. If a goal is not
stated in the Special Specifications,it will be understood that no specific goal is assigned to this
Contract Agreement.
(a) Policy-It is the policy of the Department of Transportation and City of Port Arthur that
Disadvantaged Business Enterprises,as defined in 49 CFR Part 26,and as amended in Section
106(c) of the Surface Transportation and Uniform Relocation Assistance Act of 1987,shall have
the maximum opportunity to participate in the performance of Contract Agreement financed in
whole or in part with federal funds under this Contract Agreement.Consequently,the DBE
requirements of 49 CFR Part 26 and Section 106(c) of the STURAA of 1987,apply to this
Contract Agreement.
The Contractor agrees to ensure that DBE's as defined in 49 CFR Part 26 and Section 106(c) of
the STURAA of 1987,have the maximum opportunity to participate in the whole or in part with
federal funds provided under this Contract Agreement. In this regard,the Contractor shall take
ell necessary and reasonable steps in accordance with the regulations to ensure that DBE's have
the maximum opportunity to compete for and perform subcontracts.The Contractor shall not
discriminate on the basis of race, color,national origin,religion,sex,age or physical handicap in
Federally Required and other Model Contract Clauses 45
the award and performance of subcontracts.
It is further the policy of City of Port Arthur to promote the development and increase the
participation of businesses owned and controlled by disadvantaged. DBE involvement in all
phases of City of Port Arthur's procurement activities is encouraged.
(b)DBE obligation-The Contractor end its subcontractors agree to ensure that disadvantaged
businesses have the maximum opportunity to participate in the performance of contracts and
subcontracts financed in whole or in part with federal funds provided under the Contract
Agreement.In that regard,ell Contractors and subcontractors shall take all necessary and
reasonable steps in accordance with 49 CFR Part 26 as amended,to ensure that minority
business enterprises have the maximum opportunity to compete for end perform contracts.
(c) Where the Contractor is found to have failed to exert sufficient reasonable and good faith
efforts to involve DBE's in the work provided, the City of Port Arthur may declare the
Contractor non-complaint end in breach of Contract Agreement.
(d)The Contractor will keep records and documents for a reasonable time following
performance of this Contract Agreement to indicate compliance With City of Port Arthur's DBE
program.These records and documents will be made available et reasonable times and places
for inspection by any authorized representative of City of Port Arthur and will be submitted to
City of Port Arthur upon request.
(e) City of Port Arthur will provide affirmative assistance as may be reasonable and necessary
to assist the prime Contractor in implementing their programs for DBE participation.The
assistance may include the following upon request:
*Identification of qualified DBE
*Available listing of Minority Assistance Agencies
*Holding bid conferences to emphasize requirements
2.DBE Program Definitions,as used in the Contract Agreement:
(a)Disadvantaged business"means a small business concern":
i.Which is at least 51 percent owned by one or more socially and economically disadvantaged
individuals,or,in the case of any publicly owned business,at least 51 percent of the stock of
which is owned by one or more socially and economically disadvantaged individuals;and
ii.Whose management and daily business operations are controlled by one or more of the
socially and economically disadvantaged individuals who own it.
or
iii. Which is et least 51 percent owned by one or more women individuals,or in the case of any
Federally Required and other Model Contract Clauses 46
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.
31. STATE AND LOCAL LAW DISCLAIMER
Applicability to Contracts
This disclaimer applies to all contracts.
Flow Down
The Disclaimer has unlimited flow down.
Model Clause/Language
FTA has developed the following language.
State and Local Law Disclaimer-The use of many of the suggested clauses are not governed by
Federal law,but are significantly affected by State law.The language of the suggested clauses
may need to be modified depending on state law,and that before the suggested clauses are
used in the grantees procurement documents,the grantees should consult with their local
attorney.
32. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA)TERMS
FTA Circular 4220.1D
Applicability to Contracts
The incorporation of FTA terms applies to all contracts.
Flow Down
The incorporation of FTA terms has unlimited flow down.
Model Clause/Language
FTA has developed the following incorporation of terms language:
Incorporation of Federal Transit Administration(FTA)Terms-The preceding provisions
include,in part,certain Standard Terms and Conditions required by DOT,whether or not
expressly set forth in the preceding contract provisions.All contractual provisions required by
DOT,as set forth in FTA Circular 4220.1D,dated April 15,1996,are hereby incorporated by
reference.Anything to the contrary herein notwithstanding,all FTA mandated terms shall be
deemed to control in the event of a conflict with other provisions contained in this Agreement.
The Contractor shall not perform any act,fail to perform any act,or refuse to comply with any
-f
Federally Required and other Model Contract Clauses 47
(name of grantee)requests which would cause (name of grantee) to be in violation of the FTA
terms and conditions.