HomeMy WebLinkAboutRES 00-065 RESOLUTION NO. O2 -
BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF BEAUMONT:
THAT the City Manager be and he is hereby authorized to amend the Management
Agreement with Beaumont Municipal Transit Company to include all federally required
certification and clauses. The agreement is substantially in the form attached hereto as
Exhibit "A".
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 7Ad- day of
2000.
- Mayor -
I
1. BUY AMERICA REQUIREMENTS
49 U.S.C. 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).
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
ct)mpliance.
Buy America -The Contractor agrees to comply with 49 U.S.C. 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 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.
2. CARGO PREFERENCE REQUIR;=MFNTS
46 U.S.C. 1241, 46 CFR Part 3$1
Applicability to Contracts
The Cargo Preference requirements apply to all contracts involving equipment, materials, or
commodities which may be transported by ocean vessels.
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 Agreement 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 Agreement when the subcontract may involve the
transport of equipment, material, or commodities by ocean vessel.
EXHIBIT "A"
r ,
3. SEISMIC SAFETY REQUIREMENTS
42.U.S.C. 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.
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 Agreement 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.
4. ENERGY CONSERVATION REQUIREMENTS
42 U.S.C. 6321 et seq., 49 CFR Part 18
Applicability to Contracts
The Energy Conservation requirements are applicable to all contracts.
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.
5. CLEAN WATER REQUIREMENTS
33 U.S.C. 1251
Applicability to Contracts
The Clean Water requirements apply to each Contract Agreement and subcontract which exceeds
$100,000.
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 U.S.C. 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.
6. LOBBYING
31 U.S.C. 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.
Byrd Anti-Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure Act of
1995, P.L. 104-65 [to be codified at 2 U.S.C. § 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 Agreement, grant or any
other award covered by 31 U.S.C. 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 Agreement, grant or award covered by 31 U.S.C. 1352.
Such disclosures are forwarded from tier to tier up to the recipient.
APPENDIX A, 49 CFR PART 20--CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements
(To be submitted with each bid or offer exceeding $100,000)
The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or employee
of an agency,.a Member of Congress, an officer or employee of Congress, or an employee of
a Member of Congress in connection with the awarding of any Federal Contract Agreement,
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 Agreement, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriaied 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 Agreement, 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 (1119/96). Note: Language in paragraph (2)
herein has been modified in accordance with Section 10 of the Lobbying Disclosure Act of
1995 (P.L. 104-65, to be codified at 2 U.S.C. 1601, et seq ,}]
(3) The undersigned shall require that the language of this certification be included in the award
documents for all sub-awards at all tiers (including subcontracts, sub-grants, and contracts
under grants, loans, and cooperative agreements) and that all sub-recipients 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, U.S.C. § 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 U.S.C. § 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.]
7. ACCESS TO RECORDS AND REPORT
49 U.S.C. 5325, 18 CFR 18.36, 49 CFR 633.17
Applicability to Contracts
Reference Chart "Requirements for Access to Records and Reports by Type of Contracts"
Access to Records -The following access to records requirements apply to this Contract Agreement:
1. Where the Purchaser is not a State but a local government and is the FTA Recipient or a sub-
grantee 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 Unites 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 Agreement 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 representativi's including
any PMO Contractor access to Contractor's records and construction sites pertaining to a major
capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance
through the programs described at 49 U.S.C. 5307, 5309 or 5311.
2. Where the Purchaser is a State and is the FTA Recipient or a sub-grantee of the FTA Recipient
in accordance with 49 C.F.R. 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
U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described
at 49 U.S.C. 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 Agreement for other than a small
purchase or under the simplified acquisition threshold and is an institution of higher education,
an hospital or other non-profit organization and is the FTA Recipient or a sub-grantee of the-
FTA Recipient in accordance with 49 C.F.R. 19.48, Contractor agrees to provide the Purchaser,
FTA Administrator, the Comptroller General of the Unites 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 Agreement for the purposes of making audits,
examinations, excerpts and transcriptions.
4• Where any Purchaser which is' the FTA Recipient or a sub-grantee of the FTA Recipient in
accordance with 49 U.S.C. 5325(a) enters into a Contract Agreement for a capital project or
improvement (defined at 49 U.S.C. 5302(a)1) through other than competitive bidding, the
Contractor shall make available records related to the Contract Agreement 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 agree to permit any of the foregoing parties to reproduce by any means
whatsoever or to copy excerpts and transcriptions as reasonably needed.
6. The Contractor agrees to maintain all books, records, accounts and reports required under this
Contract Agreement for a period of not less than three years after the date of termination or
expiration of this Contract Agreement, except in the event of litigation or settlement of claims
arising from the performance of this Contract Agreement, 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(1)(11).
S. FFDF 1AL CHANSPS
49 CFR Part 18
Applicability to Contracts
The Federal Changes requirement applies to all contracts.
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 (2) dated October, 1995) between Purchaser and FTA , as they may be
amended or promulgated from time to time during the term of this Contract Agreement. Contractor's
failure to so comply shall constitute a material breach of this Contract Agreement.
9. 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:
Bid Bond Requirements (Construction)
(a) Bid Security
A Bid Bond must be issued by a fully qual(f(ed surety company acceptable to the CITY 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 the
CITY to award or 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 [forty five (45)] days subsequent to the opening of bids,
without the written consent of'the CITY.
It is also understood and agreed that if the undersigned bidder should withdraw any part or all
of his bid within [forty five (45)] days after the bid opening without the written consent of the
CITY, shall refuse or be unable to enter into this Contract Agreement, or refuse or be unable
to furnish an adequate and acceptable Performance Bond, Labor and Material Payment Bonds
or refuse or be unable to furnish adequate and acceptable insurance, he shall forfeit his bid
security to the extent of the CITY's damages occasioned by such withdrawal, or refusal, or
inability to enter into a Contract 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 shall prove inadequate
to fully recompense the CITY for the damages occasioned by default, then the undersigned
bidder agrees to indemnify the CITY and pay over to the CITY the difference between the bid
security and the CITY's total damages, so as to make the CITY whole.
The bidder 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)
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
Agreement price, unless the CITY determines that a lesser amount would be adequate
for the protection of the CITY.
2. The CITY may require additional performance bond protection when a Contract
Agreement price is increased. The increase in protection shall generally equal 100
percent of the increase in Contract Agreement price. The CITY 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:
(1) One hundred percent of the Contract Agreement price if the
Contract Agreement price is not more than $1 million.
(ii) Fifty percent of the Contract Agreement price if the Contract
Agreement price is more than $1 million but not more than $5
million; or
(iii) Two and one half million if the Contract Agreement price is
more than $5 million.
2. If the original Contract Agreement price is $5 million or less, the CITY may require
additional protection as required by subparagraph 1 if the Contract Agreement 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 CITY's interest.
(a) The following situations may warrant a performance bond:
1. CITY property or funds are to be provided to the Contractor for use in performing the
Contract Agreement or as partial compensation (as in retention of salvaged material).
2. Contractor sells assets to or merges with another concern, and the CITY, 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:
1. The penal amount of performance bonds shall be 100 percent of the original Contract
Agreement price, unless the CITY determines that a lesser amount would be adequate
for the protection of the CITY.
2. The CITY may require additional performance bond protection when a Contract
Agreement price is increased. The increase in protection shall generally equal 100
percent of the increase in Contract Agreement price. The CITY may secure additional
protection by directing the Contractor to increase the penal amount of the existing
bond or to obtain an additional bond.
° A payment bond is required only when a performance bond is required, and if the use of
payment bond is in the CITY'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:
(1) One hundred percent of the Contract Agreement price if the Contract
Agreement price is not more than $1 million;
(ii) Fifty percent of the Contract Agreement price if the Contract
Agreement price is more than $1 million but not more than $5 million;
or
(iii) Two and one half million if the Contract Agreement price is increased.
Advance Payrrient Bonding Requirements
The Contractor may be required to obtain an advance payment bond if the Contract Agreement
contains an advance payment provision and a performance bond is not furnished. The CITY shall
determine the amount of the advance payment bond necessary to protect the CITY.
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 shall
determine the amount of the patent indemnity to protect the CITY.
Warranty of the Work and Maintenance Bonds
1. The Contractor warrants to the CITY, the_Architect and/or Engineer that all materials and
equipment furnished under this Contract Agreement will be-of highest quality and new unless
otherwise specified by the CITY, free from faults and defects and in conformance with the
Contract Agreement Documents. All work not so conforming to these standards shall be
considered defective. It required by the [Project Manager], the Contractor shall furnish
satisfactory evidence as to the kind and quality of materials and equipment.
2. 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 the CITY and shall
replace or repair any defective materials or equipment or faulty workmanship during the period
of the guarantee at no cost to the CITY. 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 the CITY written by the
same corporate surety that provides the Performance Bond and Labor and Material Payment
Bond for this Contract Agreement. 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 AGREEMENT SUM, as adjusted (if at all).
10. CLEAN AIR
42 U.S.C. 7401 et seq, 40 CFR 16.61, 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.
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 U.S.C. §§
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 agregs to include these requirements in each subcontract
exceeding $100,000 financed in whole or in part with Federal assistance
provided by FTA.
11. RECYCL>=D PRODUCTS
42 U.S.C. 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. 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 $14,000.
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 U.S.C. 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 Sub-part B of 40 CFR Part 247.
12. DAVIS-BACON ACT
40 USC &167; 276a -276a-5 (1995), 29 CFR § 5 (1995)
Applicability to Contract Agreement
Construction contracts over $2,000.00
(1) Minimum wages
(1) 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 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 theirain: 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 Agreement 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 Agreement 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
(21 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 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
Agreement 'from the first day on which work is performed in the
classification.
(2) Withholding - The CITY 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 Agreement or any other Federal Contract Agreement with the
same prime Contractor, or any other federally-assisted Contract Agreement 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 Agreement. 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 Agreement, the CITY 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
(1) 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 employ(ng
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.
(ii) (A) The Contractor shall submit weekly for each week in which any
Contract Agreement work is performed a copy of all payrolls to the
CITY 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
029-005-00014-1), 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 Agreement 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 Agreement
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
Agreement.
(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
MUMS) 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
(1) Apprentices - Apprentices will be permitted to work at less than the
predetermined rate for the work they performed when they are employed
pursuant to 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,
who 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 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
Agreement.
(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 Agreement clauses in
29 CFR 5.5.
(7) Contract Agreement termination: debarment - A breach of the Contract Agreement
clauses in 29 CFR 5.5 may be grounds for termination of the Contract Agreement, 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 Agreement.
(9) Disputes concerning labor standards - Disputes arising out of the labor standards
provisions of"this Contract Agreement shall not be subject to the general disputes
clause of this Contract Agreement. 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
(1) By entering into this Contract Agreement, 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 Agreement shall be subcontracted to any person or
firm ineligible for award of a Government Contract Agreement 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 U.S.C. 1001.
13. CONTRACT AGREEMENT WORK HOURS AND SAFETY STANDARDS AC
40 U.S.C. §§ 327 -333 (1995), 29 C.F.R. § 5 (19951, 29 C.F.R. § 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.
(1) Overtime requirements - No Contractor or subcontractor contracting for any part of the
Contract Agreement 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.
(3) Withholding for unpaid wages and liquidated damages - the CITY 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 Agreement or any other Federal Contract
Agreement with the same prime Contractor, or any other federally-assisted Contract Agreement
subject to the Contract Agreement 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.
(Non-construction contracts should also have the following provision:)
(5) Payrolls and basic records - M 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.
(This section is applicable to construction contracts only)
Contract Agreement Work Hours and Safety Standards Act
(1) The Contractor agrees to comply with section 107 of the Contract Agreement Work
Hours and Safety Standards Act, 40 U.S.C. section 333, and applicable DOL
regulations, " Safety and Health Regulations for Construction " 29 C.F.R. 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.
(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 Agreement for construction, alteration or repair. A person who undertakes
to perform a portion of a Contract Agreement 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.
14. COPELAND ANTI-KICKBACK ACT
40 U.S.C. § 276c (1995), 29 C.F.R. § 3 (1995), 29 C.F.R. § 5 (1995)
Applicability to Contracts
All construction contracts in excess of $2,000.
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 Agreement.
• 15. N2GOVERNMENT OBLIGATION TO THIRD PARTIES
Applicability to Contracts
Applicable to all contracts.
No Obligation by the Federal Government.
(1) The CITY 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
Agreement, absent the express written consent by the Federal Government, the Federal
Government is not a party to this Contract Agreement 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 Agreement.
(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.
16. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS
31 U.S.C. 3801 et seq., 49 CFR Part 31 18 U.S.C. 1001, 49 U.S.C. 5307
Applicability to Contracts
These requirements are applicable to all contracts.
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 U.S.C. §§ 3801 et seq. and U.S. DOT regulations, "Program Fraud
Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon
execution of the underlying Contract Agreement, 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 Agreement or the FTA assisted project for
which this Contract Agreement work is being performed. In addition to other penalties that
may be applicable, the Contractor further acknowledges that if it makes, or causes to be made,
a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal
Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act
of 1986 on the Contractor to the extent the Federal Government deems appropriate.
(2) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious,
or fraudulent claim, statement, submission, or certification to the Federal Government under
a Contract Agreement connected with a project that is financed in whole or in part with Federal
assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307,the Government
reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 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.
17. TERMINATION
49 U.S.C. 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 Agreement may be terminated for
default as well as conditions where the Contract Agreement may be terminated because of
circumstances beyond the control of the Contractor.
a. Termination for Convenience (General Provision) the CITY may terminate this Contract
Agreement, 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
Agreement close-out costs, and profit on work performed up to the time of termination. The
Contractor shall promptly submit its termination claim to the CITY to be paid the Contractor.
If the Contractor has any property in its possession belonging to the CITY, the Contractor will
account for the same, and dispose of it in the manner the CITY directs.
b. Termination for Default [Breach or Cause] (General Provision) If the Contractor does not deliver
supplies in accordance with the Contract Agreement delivery schedule, or, if the Contract
Agreement is for services, the Contractor fails to perform in the manner called for in the
Contract Agreement, or if the Contractor fails to comply with any other provisions of the
Contract Agreement, the CITY may terminate this Contract Agreement for default. Termination
shall be effected by serving a notice of termination on the Contractor setting forth the manner
in which the Contractor is in default. The Contractor will only be paid the Contract Agreement
price for supplies delivered and accepted, or services performed in accordance with the manner
of performance set forth in the Contract Agreement.
If it is later determined by the CITY 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, 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 in its sole discretion may, in the case of a
termination for breach or default, allow the Contractor thirty (30) days 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 the CITY's satisfaction the breach or default or any of the
terms, covenants, or conditions of this Contract Agreement within ten (10) days after receipt
by Contractor or written notice from the CITY setting forth the nature of said breach or default,
the CITY shall have the right to terminate the Contract Agreement without any further
obligation to Contractor. Any such termination for default shall not in any way operate to
preclude the CITY 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 the CITY elects to waive its remedies for
any breach by Contractor of any covenant, term or condition of this Contract Agreement, such
waiver by the CITY.shall not limit the M Y&remedies for any succeeding breach of that or of
any other term, covenant, or condition of this Contract Agreement.
e. Termination for Convenience (Professional or Transit Service Contracts) the CITY, by written
notice, may terminate this Contract Agreement, in whole or in part, when it is in the
Government's interest. If this Contract Agreement is terminated, the CITY shall be liable only
for payment under the payment provisions of this Contract Agreement 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 Agreement or any extension or
if the Contractor fails to comply with any other provisions of this Contract Agreement, the
CITY may terminate this Contract Agreement for default. The CITY 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 Agreement price for supplies delivered and accepted,
or services performed in accordance with the manner or performance set forth in this Contract
Agreement.
If; after termination for failure to fulfill Contract Agreement 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.
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 Agreement or any extension or if the Contractor fails to comply with any other
provisions of this Contract Agreement, the CITY may terminate this Contract Agreement for
default. The CITY shall terminate by delivering to the Contractor a Notice of Termination
specifying the nature of default. The Contractor will only be paid the Contract Agreement price
for services performed in accordance with the manner of performance set forth in this Contract
Agreement.
If this Contract Agreement is terminated while the Contractor has possession of CITY goods,
the Contractor shall, upon direction of the CITY, protect and preserve the goods until
surrendered to the CITY or its agent. The Contractor and the CITY 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 Agreement 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.
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 Agreement 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 Agreement, the
CITY may terminate this Contract Agreement for default. The CITY shall terminate by
delivering to the Contractor a Notice of Termination specifying the nature of the default. In this
event, the CITY may take over the work and compete it by Contract Agreement 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 City 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 City 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 CITY, acts of another Contractor in the performance
of a Contract Agreement with the CITY, epidemics, quarantine restrictions, strikes,
freight embargoes; and
2. The Contractor, within [10] days from the beginning of any delay, notifies the CITY in
writing of the causes of delay. If in the judgment of the CITY, the delay is excusable,
the time for completing the work shall be extended. The judgment of the CITY shall
be final and conclusive on the parties, but subject to appeal under the Disputes
clauses.
If, after termination of the Contractor's right to proceed, it is determined that the Contractor
was not in default, or that the delay was excusable, the rights and obligations of the parties
will be the same as if the termination had been issued for the convenience of the CITY.
I. Termination for Convenience or Default (Architect and Engineering) the CITY may terminate this
Contract Agreement in whole or in part, for the CITY's convenience or because of the failure
of the Contractor to fulfill the Contract Agreement obligations. The CITY 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 Agreement, whether
completed or in process.
If the termination is for the convenience of the CITY, the Contracting Officer shall make an
equitable adjustment in the Contract Agreement price but shall allow no anticipated profit on
unperformed services.
If the termination is for failure of the Contractor to fulfill the Contract Agreement obligations,
the CITY may complete the work by contact or otherwise and the Contractor shall be liable for
any additional cost incurred by the CITY.
If, after termination for failure to fulfill Contract Agreement 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.
j. Termination for Convenience of Default (Cost-Type Contracts) The CITY may terminate this
Contract Agreement, 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 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 Agreement. The
Contractor shall account for any property in its possession paid for from funds received from
the CITY, or property supplied to the Contractor by the CITY. If the termination is for default,
the CITY may fix the fee, if the Contract Agreement 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 and the parties shall
negotiate the termination settlement to be paid the Contractor.
If the termination is for the convenience of the CITY, the Contractor shall be paid its Contract
Agreement close-out costs, and a fee, if the Contract Agreement 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 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, after setting up a new work
schedule, may allow the Contractor to continue work, or treat the termination as a termination
for convenience.
18. 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.
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, the CITY may pursue available remedies,
including suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate written notice to the CITY 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," "lo,wer 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 149 CFR Part 29]. You
may contact the CITY for assistance in obtaining a copy of those regulations. -
5. The prospective lower tier participant agrees by submitting this proposal that, should the
proposed covered transaction be entered into, it shall not knowingly enter into any lower tier
covered transaction with a person who is debarred, suspended, declared ineligible, or
voluntarily excluded from participation in this covered transaction, unless authorized in writing
by the CITY.
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 participant may decide the method and.frequency by which it determines
the eligibility of its principals. Each participant may, but is not required to, check the Non-
procurement List issued by U.S. General Service Administration.
8. Nothing contained in the foregoing shall be construed to require establishment of system of
records in order to render in good faith the certification required by this clause. The knowledge
and information of a participant is not required to exceed that which is normally possessed by
a prudent person in the ordinary course of business dealings.
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, the CITY 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 C.F.R. § 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.
19. PRIVACY ACT
5 U.S.C. 552
Applicability to Contracts
When a grantee maintains files on drug and alcohol enforcement.activities for FTA, and those files are
organized so that information could be retrieved by personal identifier, the Privacy Act requirements
apply to all contracts.
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 Agreement:
(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 U.S.C. § 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 Agreement.
(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.
20. CIVIL RIGHTS REQUIREMENTS
29 U.S.C. § 623, 42 U.S.C. § 2000, 42 U.S.C. § 6102, 42 U.S.C. § 12112, 42 U.S.C. § 12132, 49
U.S.C. § 5332, 29 CFR Part 1630, 41 CFR Parts 60 at seq.
Applicability to Contracts
The Civil Rights Requirements apply to all contracts.
Civil Rights - The following requirements apply to the underlying Contract Agreement:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C.
§ 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102,
section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal
transit law at 49 U.S.C. § 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) _Fi1 gal Employment Opportunity - The following equal employment opportunity requirements
apply to the underlying Contract Agreement:
(a) Race Color. Creed National Qrioin. Sex - In accordance with Title VII of the Civil
Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. §
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 Agreement Compliance Programs, Equal Employment Opportunity,
Department of Labor," 41 C.F.R. 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 U.S.C. § 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) - In accordance with section 4 of the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 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.
° Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as
amended, 42 U.S.C. § 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 C.F.R. 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, mooted only if necessary to identify the
affected parties.
21. BREACHES AND DISPITTF RE:ZnLUTION
49 CFR Part 18, FTA Circular 4=0.11)
Applicability to Contracts
All contracts in excess of $100,000 shall contain provisiorss or conditions which will allow for
atiministrative, contractual, or legal remedies in instances where Contractors violate or breach Contract
Agreement terms, and provide for such sanctions and penal-ties as may be appropriate. This may
include provisions for bonding, penalties for late,or inadeCr=:e performance, retained earnings,
liquidated damages or other appropriate measures. -
Disputes - Disputes arising in the performance of this Contract :»=reement which are not resolved by
agreement of the parties shall be decided in writing by the auznorized representative of the CITY's
Administrator. 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 Administrator.
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 ttue Administrator shall be binding upon
the Contractor and the Contractor shall abide be the decision-
Performance During Dispute - Unless otherwise directed by the CITY, Contractor• shall continue
performance under this Contract Agreement while matters in cute are being resolved.
Claims for Damages - Should either party to the Contract Agree---ant 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 Agreement provides otherwise. a1 claims, counterclaims, disputes and
other matters in question between the CITY and the Cont-a=r arising out of or relating to this
Contract Agreement or its breach will be-decided by a court of a-npetent jurisdiction within the State
in which the CITY is located.
Rights and Remedies -The duties and obligations imposed by ::+e Contract Agreement Documents and
the rights and remedies available thereunder shall be in additicn .o 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, (Architect) or Contractor shall constitute a waiver of zx.-y right or duty afforded any of them
under the Contract Agreement, nor shall any such action or faatrre to act constitute an approval of or
acquiescence in any breach thereunder, except as may be sp•_�Hfically agreed in writing.
22. DISADVANTAGED BUSIN=SS = =;PRISE (DBE)
49 CFR Part 23
Applicability to Contracts
DBE provisions only apply to all DOT-assisted contracts.
Disadvantaged Business Enterprise Provision
1. The Federal Fiscal Year goal has been set by the CITE( in an attempt to match projected
procurements with available qualified disadvantaged businesses. The CITY's goals for
budgeted service contracts, bus parts, and other material and supplies for Disadvantaged
Business Enterprises have been established by the CITY as set forth by the Department of
Transportation Regulations 49 C.F.R. 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, the CITY may declare
the Contractor non-complaint and 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 the CITY that
Disadvantaged Business Enterprises, as defined in 49 CFR Part 23, 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 Comtract
Agreement. Consequently, the DBE requirements of 49 CFR Part 23 and Section
106(c) of the STURAA of 1987, apply to this Contract Agreement.
The Contractor agrees to ensure that DBEs as defined in 49 CFR Part 23 and Section
106(c) of the STURAA of 1987, have the maximum opportunity to participate in the
whole or in part with federal funds provided under this Contract Agreement. In this
regard, the Contractor shall take all necessary and reasonable steps in accordance with
the regulations to ensure that DBEs have the maximum opportunity to compete for and
perform subcontracts. The Contractor shall not discriminate on the basis of race, color,
national origin, religion, sex, age or physical handicap in the award and performance
of subcontracts.
It is further the policy of the CITY to promote the development and increase the
participation of businesses owned and controlled by disadvantaged. DBE involvement
in all phases of the CITY's procurement activities are encouraged.
(b) DB obliQation - The Contractor and 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, all Contractors and
subcontractors shall take all necessary and reasonable steps in accordance with 49
CFR Part 23 as amended, to ensure that minority business enterprises have the
maximum opportunity to compete for and perform contracts.
° 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 may declare the
Contractor non-complaint and 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 the CITY's DBE
program. These records and documents will be made available at reasonable times and
places for inspection by any authorized representative of the CITY and will be
submitted to the CITY upon request.
(e) The CITY 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
0 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.
iii. Which is at least 51 percent owned by one or more women individuals,
or in the case of any publicly owned business, at least 51%-of the
stock of which is owned by one or more women individuals; and
iv. Whose management and daily business operations are controlled by
one or more women individuals who own it.
(b) "Small business concern" means a small business as defined by Section 3 of the Small
Business Act and Appendix B - (Section 106(c)) Determinations of Business Size.
(c) "Socially and economically disadvantaged individuals" means those individuals who are
citizens of the United States (or lawfully admitted permanent residents) and States (or
lawfully admitted permanent residents) and who are black Americans,:,Hispanic
Americans, Native Americans, Asian-Pacific Americans, Asian-Indian Americans, or
women, and any other minorities or individuals found to be disadvantaged by the Small
Business Administration pursuant to section 8(a) of the Small Business Act.
I. "Black Americans", which includes persons having origins in any of the
Black racial groups of Africa;
ii. "Hispanic Americans", which includes persons of Mexican, Puerto
Rican, Cuba, Central or South American, or other Spanish or
Portuguese culture or origin, regardless of race;
iii. "Native Americans', which includes persons who are American Indians,
Eskimos, Aleuts, or Native Hawaiians;
iv. "Asian-Pacific Americans", which includes persons whose origins are
from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the
Philippines,Samoa, Guam, the U.S. Trust Territories of Pacific, and the
Northam Marianas; ,
V. "Asian-Indian Americans", which includes persons whose origins are from
India, Pakistan, and Bangladesh.
23. STATE AND LOCAL LAW DISCLAIMER
Applicability to Contracts
This disclaimer applies to all contracts.
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.
24. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTAI TERMS
FTA Circular 4220.11)
Applicability to Contracts
The incorporation of FTA terms applies to all contracts.
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 Agreement provisions. All contractual provisions required by DOT, as set forth in
FTA Circular 4220.113, dated April 15, 1996, are hereby incorporated by reference. Anything to the
contrary herein notwithstanding, all FTA mandated terms shalt be deemed to control in the event of
a conflict with other provisions contained in this Contract Agreement. The Contractor shall not perform
any act, fail to perform any act, or refuse to comply with any CITY requests which would cause the
CITY to be in violation of the FTA terms and conditions.
'0 Cit y of Beaumont
Council Agenda Item
TO: Stephen J. Bonczek, City Manager
FROM: Tom Warner, Director of Public Works
PREPARED BY: Tom Warner, Director of Public Works
MEETING DATE: March 7, 2000
AGENDA MEMO DATE: February 23, 2000
REQUESTED ACTION: City Council consider a resolution amending the Management
Agreement with Beaumont Transit Company.
RECOMMENDATION
Administration recommends amending the Management Agreement with Beaumont Municipal
Transit to include all federally required certifications and clauses.
BACKGROUND
On February 2, the Federal Transit Administration (FTA) completed their FY 2000 Triennial
Review of Beaumont Municipal Transit. The Beaumont Municipal Transit was found to be
deficient in the Procurement review area. The deficiency was in regard to the absence of federally
required certifications and clauses in the management agreement. Although the existing
management agreement with Beaumont Transit Company is subject to the requirements of the
Urban Mass Transportation Act of 1964, as amended, the FTA is requiring the specific language
in the management agreement. A copy of the required federal certifications and clauses is
enclosed.
BUDGETARY IMPACT
None
PREVIOUS ACTION
None
SUBSEQUENT ACTION
None
RECOMMENDED BY
City Manager and Public Works Director.
RECOMMENDED MOTION
Approve/Deny a resolution amending the Management Agreement with Beaumont Municipal
Transit to include the required federal certifications and clauses.
BmtFed.slk
02/23/2000