LA Sturgeon Electric Company Final
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1/2/2020
LINKING AGREEMENT
BETWEEN
THE CITY OF GLENDALE, ARIZONA
AND
STURGEON ELECTRIC COMPANY, INC.
THIS LINKING AGREEMENT (this “Agreement”) is entered into as of this day of
, 2022, between the City of Glendale, an Arizona municipal corporation (the “City”), and
Sturgeon Electric Company, Inc., a(n) Michigan Corporation authorized to do business in Arizona
(“Contractor”), collectively, the “Parties.”
RECITALS
A.
On April 4, 2022 under S.A.V.E Cooperative Purchasing Agreement, the City of Tucson
entered into a contract with Contractor to purchase the goods and services described in the
Job Order Contract for Installation, Maintenance, Repair of Fiber/Copper Networks,
Contract No. 212710-02 (“Cooperative Purchasing Agreement”), which is attached hereto as
Exhibit A. The Cooperative Purchasing Agreement permits its cooperative use by other
governmental agencies including the City.
B.
Section 2-149 of the City’s Procurement Code permits the Materials Manager to procure goods
and services by participating with other governmental units in cooperative purchasing
agreements when the best interests of the City would be served.
C.
Section 2-149 also provides that the Materials Manager may enter into such cooperative
agreements without meeting the formal or informal solicitation and bid requirements of
Glendale City Code Sections 2-145 and 2-146.
D.
The City desires to contract with Contractor for supplies or services identical, or nearly
identical, to the supplies or services Contractor is providing other units of government under
the Cooperative Purchasing Agreement. Contractor consents to the City’s utilization of the
Cooperative Purchasing Agreement as the basis of this Agreement, and Contractor desires to
enter into this Agreement to provide the supplies and services set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated by reference,
and the covenants and promises contained in this Linking Agreement, the parties agree as follows:
1.
Term of Agreement. The City is purchasing supplies and/or services from Contractor
pursuant to the Cooperative Purchasing Agreement. According to the Cooperative
Purchasing Agreement, purchases can be made by governmental entities from the date of
award, which was April 4, 2022, until the date the contract expires on April 3, 2023 unless the
term of the Cooperative Purchasing Agreement is extended by the mutual agreement of the
original contracting parties. The Cooperative Purchasing Agreement, however, may not be
extended beyond April 3, 2027. The initial period of this Agreement, therefore, is the period
from the Effective Date of this Agreement until April 3, 2023. If the underlying agreement
2
4/29/2021
between the City of Tucson and Sturgeon Electric Company, Inc. is extended for a
sufficient amount of time, the City may renew the term of this Agreement for (2) two
additional
two-year
periods,
or
portions
thereof,
until
the
Cooperative
Purchasing Agreement expires on April 3, 2027, or is renewed by City of Tucson and
Sturgeon Electric Company, Inc. Glendale renewals are not automatic and shall only
occur if the City gives the Contractor notice of its intent to renew. The City may give the
Contractor notice of its intent to renew this Agreement 30 days prior to the anniversary
of the Effective Date to effectuate such renewal.
2.
Scope of Work; Terms, Conditions, and Specifications.
A.
Contractor shall provide City the supplies and/or services identified in the Scope of
Work attached as Exhibit B.
B.
Contractor agrees to comply with all the terms, conditions and specifications of the
Cooperative Purchasing Agreement. Such terms, conditions and specifications are
specifically incorporated into and are an enforceable part of this Agreement.
3.
Compensation.
A.
City shall pay Contractor compensation at the same rate and on the same schedule as
provided in the Cooperative Purchasing Agreement, which is attached hereto as
Exhibit C.
B.
The total purchase price for the supplies and/or services purchased under this
Agreement shall not exceed Five hundred thousand dollars ($500,000) for the entire
term of the Agreement (initial term plus any renewals).
4.
Cancellation. This Agreement may be cancelled pursuant to A.R.S. § 38-511.
5.
Non-discrimination. Contractor must not discriminate against any employee or applicant for
employment on the basis of race, color, religion, sex, national origin, age, marital status, sexual
orientation, gender identity or expression, genetic characteristics, familial status, U.S. military
veteran status or any disability. Contractor will require any Sub-contractor to be bound to the
same requirements as stated within this section. Contractor, and on behalf of any
subcontractors, warrants compliance with this section.
6.
Insurance Certificate. A certificate of insurance applying to this Agreement must be provided
to the City prior to the Effective Date.
7.
E-verify. Contractor complies with A.R.S. § 23-214 and agrees to comply with the
requirements of A.R.S. § 41-4401.
8.
No Boycott of Israel. To the extent A.R.S § 35-393 through § 35-393.03 are applicable, the
parties hereby certify that they are not currently engaged in, and agree for the duration of the
Agreement to not engage in, a boycott of goods or services from Israel, as that term is defined
in A.R.S § 35-393.
9.
Attestation of PCI Compliance. When applicable, the Contractor will provide the City
annually with a Payment Card Industry Data Security Standard (PCI DSS) attestation of
compliance certificate signed by an officer of Contractor with oversight responsibility.
10.
Notices. Any notices that must be provided under this Agreement shall be sent to the Parties'
respective authorized representatives at the address listed below:
City of Glendale
c/o Julie Ossege
7070 W. Northern Avenue
Glendale, AZ 85303
And
Sturgeon Electric Company, Inc.
c/o Jesse Towle
2825 E. Ginter Road
Tucson, AZ 85706
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year
set forth above.
"City"
City of Glendale, an Arizona
municipal corporation
By:
Kevin R. Phelps
City Manager
ATIEST:
Julie K. Bower
City Clerk
(SEAL)
APPROVED AS TO FORM:
Michael D. Bailey
City Attorney
3
"Contractor"
Sturgeon Electric Company, Inc.,
a Michigan Corporation
<-
Title:
Operations Manager
4/29/2021
4
4/29/2021
LINKING AGREEMENT
BETWEEN
THE CITY OF GLENDALE, ARIZONA
AND
STURGEON ELECTRIC COMPANY, INC.
EXHIBIT A
(Job Order Contract for Installation, Maintenance, Repair of Fiber/Copper Networks, City of
Tucson Contract No. 212710-02)
5
4/29/2021
LINKING AGREEMENT
BETWEEN
THE CITY OF GLENDALE, ARIZONA
AND
STURGEON ELECTRIC COMPANY, INC.
EXHIBIT B
Scope of Work
PROJECT
Contractor will provide services as needed for the installation, maintenance and repair of
fiber/copper networks per the attached City of Tucson Contract No. 212710-02.
CONTRACT NO. 212710-02
Job Order Contract for Installation, Maintenance, Repair of
Fiber/Copper Networks
Sturgeon Electric Company, Inc
2825 E. Ginter Road
Tucson, AZ 85706
Email: jtowle@myrgroup.com
BUSINESS SERVICES DEPARTMENT—SHARED SERVICES PROCUREMENT
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303 Page 1 of 16
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
TABLE OF CONTENTS
CONTRACT TERMS AND CONDITIONS
I. Introduction
II. Scope of Work
III. Special Terms and Conditions
IV. Standard Terms and Conditions
V. Pricing
VI. Subcontractor Selection Plan
VII.Contract Appendices
APPENDICES
Appendix A GENERAL CONDITIONS FOR CONSTRUCTION
Appendix B CONSTRUCTION AGREEMENT
Appendix C FTA TERMS AND CONDITIONS
Appendix D SBE PROGRAM PROVISIONS
Appendix E DBE PROGRAM PROVISIONS
Appendix F PRICING
Appendix G SUBCONTRACTOR SELECTION PLAN
Appendix H BONDS
Appendix I INSURANCE
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303 Page 2 of 16
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
I.
INTRODUCTION
The City of Tucson (COT), hereinafter referred to as “COT” is conducting a competitive TWO-STEP process to
award multiple contracts for Fiber/Copper Networks construction, repair and maintenance in accordance with
Sec. 34-604 of the Arizona Revised Statues. It is the City’s intent to select up to three (3) CONTRACTORS for a
Job Order Contract (JOC) to provide labor, materials, and some design services relating to this scope of work.
The contracts issued pursuant to this RFQ will have an individual job order limit of $100,000. Individual job
orders will not exceed this project limits unless a waiver is requested of and granted by the Director of Business
Services. Typical projects are in the $10,000-$25,000 range. The estimated usage for the first year is
$300,000.00. The term of this contract will be ONE (1) year with FOUR (4) one-year renewal options. Services
will be requested on an as-needed, if-needed basis and the resultant contracts are neither exclusive nor a
commitment by COT that the Contractors' services will be required.
The City will select up to FIVE (5) offerors from those submitting Statements of Qualifications (Step 1) for further
consideration. A Request for Proposals (RFP) (Step 2) will be issued to the short-listed firms. The firms will then
be requested to submit separate Technical and Price Proposals in response to an RFP. The RFP will contain a
sample project as described in the Evaluation Criteria. Final Contract award will be determined through a
selection process that considers the Final Technical Proposal and Price Proposal. The firm(s) determined to be
best qualified will then be invited to enter negotiations with COT.
Federal Transit Administration (FTA), local and/or Regional Transportation Authority (RTA) funding may be
utilized on specific projects under the Contract. Therefore, all FTA, HUD, federal, state and local requirements
will be followed, and the RTA shall be listed as additionally insured and as an additional indemnitee in the
resulting contract. FTA Terms and Conditions (Appendix C) are also provided as an attachment to this
solicitation and will be incorporated into the resulting contract with signed FTA Certifications.
II.
SCOPE OF WORK
1. SCOPE OF SERVICE
The Contractor shall provide labor, manpower and equipment as requested by the City of Tucson (COT), to
perform the work outlined below in the metro Tucson area. All work shall conform to the requirements
outlined in 29 CFR Part 1910 (Occupational Safety & Health Standards) & 1926 (Safety & Health
Regulations for Construction), National Electric Code (NEC), National Electric Safety Code (NESC),
Telecommunications Industry Association (TIA), Electronics Industry Alliance (EIA), and Authority Having
Jurisdiction (AHJ).
2. SCOPE OF WORK
a. Work shall include the repair, restoration, installation, and maintenance of aerial outside plant,
underground fiber optic conduit and cable, and indoor intra-building fiber optic and copper LAN
cable. This includes fusion splicing, hand terminations and the installation and maintenance of both
aerial and underground fiber optic conduits (including boring and trenching). This also includes the
installation and repair of conduit, fiber or risers as per associated drawings and specifications by
AHJ, and verbal directions with follow up in writing, including copper cable installation and repair of
infrastructure and associated utilities to support LAN communications
b. Pole Make Ready: Make ready is defined as working with the pole owner/lessor to prepare the pole for
installation of COT fiber in accordance with work orders issued by the COT. This preparation shall
include, but not be limited to the installation of cable strand, required pole attachment hardware, riser
conduit and associated fittings
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303 Page 3 of 16
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
c.Relocation of Fiber: Relocating fiber is defined as physically moving existing fiber service to a different
location on an existing pole. This task shall consist of, but not be limited to delashing fiber cable from
existing messenger strands, moving existing hardware/fittings if serviceable (replace as necessary)
to new location, reattach messenger cable to new pole height, installing new messenger if
applicable, relashing fiber, and performance testing as requested by the City.
d. Pole Relocate: Pole relocation shall consist of removing fiber cable from existing pole and reinstalling it
onto a different pole location. This shall include, but not be limited to the determination of proper pole
height (per pole owner specifications), installation of required hardware, installation of messenger
cable, delashing and relashing of fiber cable, new fittings or hardware that may be required. It may
also include the siting and erection of a new pole to the City's design, or AHJ, and specifications
criteria. The City may request performance testing.
e. Delashing /Relashinq of Fiber Cable: When responding to an "emergency call-out", all fiber cable shall
be delashed to the closest service loop or splicing point within one mile of emergency point. When
service loops or splicing points are not available within one mile, COT technical personnel will
instruct contractor (verbally, with follow-up in writing with in a 24-hour period) of splicing and/or
delashing instructions. All verbal instructions shall adhere to defined standards within this
agreement, in which the most stringent shall be adhered to. COT technical personnel must approve
(in writing) any services/material that are not clearly defined with in this agreement’s standards.
f.Testing: The Contractor shall display competent knowledge and expertise in the testing of fiber optic
cables using both an optical power meter (power meter testing must be done in both directions) and
an optical time domain reflectometer. All fiber that has been physically moved, spliced or terminated
shall be tested for dB loss and inspected for physical abnormalities that would adversely affect the
integrity of the fiber network. Any span not within budget test parameters shall be cleaned and/or
respliced and retested with test results resubmitted to the City. A record of all successful testing shall
be presented to the City's Communication Maintenance Section and Communications Engineering
Division in electronic and written format. The Contractor shall provide a copy of licensed software
suitable for reviewing electronic testing results. Successful testing will be defined as the following:
Optical fiber test results shall be within specified attenuation loss budget parameters, per the City of
Tucson requirements, unless approved by City Communication Engineering. These requirements
are based on the maximum loss parameters specified in the ANSI/TIA/EIA standards for the section
of fiber under test. Under no circumstance shall the requirements exceed the maximum stated in the
ANSI/TIA/EIA Standards.
All copper cabling links in the installation shall be tested in accordance with the Telecommunications
Industry Association (TIA) standard ANSI/TIA/EIA-568-B.1 Section 11.2: 100-Ohm twisted-pair
transmission performance and field test requirements. The test equipment (tester) shall comply with
or exceed the accuracy requirements for enhanced level II (Level II-E) field testers as defined in TIA-
568-B; Annex I: Section I"
All electronic format submittals shall be compatible with existing COT Communication Maintenance
software.
3. SPECIAL REQUIREMENTS
a. Response Time: Provide emergency call-out service for excavation and restoration of fiber optic cable.
Contractor shall respond to "emergency call-outs" for the purpose of assisting COT technical
personnel in the repair of fiber/copper cable and appurtenant equipment, if directed. Such assistance
entails any form of OSP and ISP functions required in an effort to restore and/or protect service.
Contractor shall be on site with labor and equipment as specified in the call-out within (2) hours of
notification.
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303 Page 4 of 16
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
Contractor shall remain on site, prepared to perform work as required until released by COT.
Contractor shall be available for call-out 24 hours per day, seven days per week, throughout the
year. Contractor agrees that time is of the essence in all such emergency call-out situations and
shall respond at all times to the requirements of the service restoration situation with a sense of
urgency.
b. Practice Drills: Periodically, COT may stage practice drills to test the effectiveness of Contractor's
emergency response. Contractor shall be reimbursed for such drills in accordance with the rate
schedule of the contract.
c.Work Schedule: By acceptance of this contract, the Contractor agrees that the Contractor must
respond to all written inquiries within 1 working day. In addition, the Contractor and City will
negotiate schedules for each component's or project's completion, to which the Contractor and City
will both, be expected to adhere.
Before beginning any City engagement based on an hourly rate, the Contractor shall provide, at no
cost to the City, a not-to-exceed estimate of the Contractor hours required to complete the project.
This estimate shall be valid for 90 days.
On all unplanned, short-term or "emergency" projects, the Contractor must be on site and started on
the project within 24 hours of written notification. The City is the party who determines when an
"emergency" exists and will require all emergencies or short-term projects to be fulfilled according to
COT defined standards within this agreement. Projects shall be completed adhering to the most
stringent of the standards within a reasonably time frame agreed upon (in writing) between the
Contractor and COT.
d. Project Initiation: Before beginning any planned project, the City and the contractor will negotiate a
schedule, including the deliverables, to be signed by both parties. Progress payments may be
allowed at the City’s discretion. There will be no pre-negotiation for designated emergencies as
defined in the work schedule above. However, all COT declared emergencies will adhere to
standards within this master agreement.
Note: In writing, in emergency situations, refers to a handwritten note signed by COT
technical personnel approving special service or installation of nonstandard material. This
will be required for tracking of nonstandard material used in the fiber network for correction
after clearing emergency call-out services.
e. Security Requirement: By acceptance of this contract, the Contractor agrees that any and all
Contractor employees who will perform services at designated secure facilities, including but not
limited to Tucson Police Department (TPD) facilities, must successfully pass a background check
and be issued appropriate identification prior to commencement of work at subject facilities.
4. PROJECT WORK
Perform any work reasonably requested by the COT for the installation, restoration or enhancement of
the COT telecommunication fiber/copper network.
5. QUALITY ASSURANCE
a. Quality of Work: In the event COT decides that a person provided by the Contractor is not meeting the
desired level of expertise, as needed for adequate performance of services. COT may, at any time,
with or without cause, require Contractor to remove said person from performing services for COT
under this master agreement. Upon request, the Contractor shall immediately fill any vacancy
created by such removal with a qualified person without remobilization charge.
b. Sub-Contractors: The Contractor shall not, without prior written approval of COT, subcontract any
portion of services to be performed. All subcontractors shall incorporate the terms and conditions
substantially as contained in this agreement. Contractor shall, at all times, be responsible for the
acts, commissions and performance of the subcontractors. In the interest of facilitating timely
emergency response, Contractor may request COT's written pre-approval of specific subcontractors
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303 Page 5 of 16
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
and subcontract agreements. COT, at its sole discretion, may issue such written pre-approval.
Second tier subcontracting is prohibited.
6. QUALITY OF EQUIPMENT
The Contractor warrants that any equipment used for the purposes of fulfilling its obligations hereunder
shall be in proper operating condition and capable of fulfilling its intended use. In the event COT
determines, in its sole opinion, that the equipment used does not meet such proper operating condition
during the term of this master agreement, COT may require Contractor to remove said equipment until
such time as COT is satisfied as to the equipment's proper operating condition, without remobilization
charges.
7. TESTING
The Contractor shall display competent knowledge and expertise in the testing of fiber optic cables using
both an optical power meter (power meter testing must be done in both directions) and an optical time
domain reflectometer. All fiber that has been physically moved, spliced or terminated shall be tested for
dB loss and inspected for physical abnormalities that would adversely effect the integrity of the fiber
network. Loss testing may be requested, at the city's discretion. A record of all successful testing shall
be presented to the City's Communication Maintenance Section and Technical Planning and Resources
Division in electronic and written format. Successful testing will be defined as the following:
Test results will remain within DB loss budget per City of Tucson specifications which are based on
ANSI/TIA/EIA standards for the section of fiber under test.
All electronic format submittals shall be compatible with existing COT Communication Maintenance
software.
8. PERMITS AND LICENSES
Contractor shall keep current all governmental permits, certificates and licenses (including professional
licenses, if applicable) necessary for Contractor to perform these services.
9. CONTRACT REPRESENTATIVE
The City shall designate a Contract Representative to monitor the contract, assign individual projects
and to act as liaison between the City and the successful vendor.
10.SAFETY
The Contractor shall perform all work in compliance with all federal, state and local laws, regulations and
ordinances that pertain to Occupational Safety and Health Administration (OSHA), National Electrical
Code and National Electrical Safety Code and the authority having jurisdiction.
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303 Page 6 of 16
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
III.
SPECIAL TERMS AND CONDITIONS
1. COOPERATIVE PURCHASING: Any Contract resulting from this solicitation shall be for the use of the City of
Tucson. In addition, public and nonprofit agencies that have entered into a Cooperative Purchasing Agreement
with the City of Tucson's Department of Procurement are eligible to participate in any subsequent Contract. See
http://www.tucsonprocurement.com/coop_partners.aspx and click on Cooperatives for a list of the public and
nonprofit agencies that have currently entered into Cooperative Purchasing Agreements with the City of Tucson.
Additionally, this contract is eligible for use by the Strategic Alliance for Volume Expenditures (SAVE)
cooperative. See http://www.mesaaz.gov/home/showdocument?id=23638 for a listing of participating agencies.
The parties agree that these lists are subject to change.
Any orders placed to, or services required from, the successful Contractor(s) will be requested by each
participating agency. Payment for purchases made under this agreement will be the sole responsibility of each
participating agency. The Contractor may negotiate additional expenses incurred as a result of participating
agencies’ usage of this contract (i.e., freight charges, travel related expenses, etc.). The City shall not be
responsible for any disputes arising out of transactions made by others.
The Contractor(s) will provide an electronic copy of the complete Contract to the City of Tucson Department of
Procurement upon receipt of the Notice of Intent to Award. At the City's request, the successful Contractor(s)
may also be requested to provide an electronic copy of the complete Contract to a participating agency.
2.
BASIS FOR AWARDING INDIVIDUAL JOB ORDERS: In the event the City awards more than one
contract for these services, individual job orders will be awarded based upon consideration of the firm’s ability to
complete the work expeditiously and the proposed cost. The City intends to request price and schedule
proposals from all contracted firms for each individual job order. However, when quoting individual job orders is
impracticable, the City reserves the right to award job orders as it deems to be in its best interest.
Scope, schedule, price, and liquidated damages (if applicable) are agreed upon in a fully executed Notice to
Proceed letter prior to Contractor beginning the work.
The Contractor shall be available on a five-day work basis throughout the term of the contract unless notified
in writing by the City that this requirement may be temporarily waived due to the Contractor's approved
written request or a reduced need by the City. The Contractor must be available to commence work on
assignments within one week from award of an individual job order.
3.
CONTRACT TERM AND RENEWAL: The term of this contract shall commence upon award and
shall remain in effect for a period of one (1) year, unless terminated, canceled or extended as otherwise
provided herein. The Contractor agrees that the City of Tucson shall have the right, as its sole option, to
renew the Contract for two (2) additional two-year periods, or portions thereof. If the City chooses to
exercise this option, all terms, conditions, and provisions of the original contract shall remain the same and
apply during the renewal period with the possible exception of fee basis and minor scope additions and/or
deletions.
4.
PRICE ADJUSTMENT: The City will review fully documented requests for fee basis adjustments after
any contract has been in effect for one (1) year. Adjustments will only be made at the time of contract renewal or
extension, except for financial emergencies, and will be a factor in the renewal/extension review process. The
City will determine whether the requested adjustment or an alternate option is in the best interest of the City.
Any adjustment will be effective on the first day of the contract renewal or extension.
5.
COMPENSATION AND METHOD OF PAYMENT: In consideration of the performance of the services
described in the Scope of Services of each individual job order and pursuant to the master Scope of Work
herein, the City shall pay the Contractor in accordance with the negotiated contract rates, and the Contractor
shall charge the City only in accordance with those same rates.
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT
CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303
Page 7 of 18
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
Compensation under this contract should not exceed $100,000 per individual job order unless a waiver
is requested of and granted by the Director of Business Services.
The City of Tucson reserves the right to adjust the individual job limit at time of annual contract renewal upon
written approval from the Business Services Director. The City will pay the Contractor following the submission
of itemized invoice(s) for the service rendered. No payment shall be issued prior to receipt of material or service
and correct invoice.
All requests for payment shall follow a format to be approved by the City Representative. Invoices shall be
submitted monthly on a job-by-job basis.
6. INSURANCE PROVISIONS
A.Obtain insurance coverage of the types and amount required in this section and keep such insurance coverage in
force throughout the life of this contract. All policies will contain an endorsement providing that written notice be
given to the City at least ten (10) calendar days prior to termination, cancellation, or reduction in coverage in any
policy.
B.
The Commercial General Liability, Commercial Automobile Liability and umbrella policies where applicable will
include the City as an additional insured with respect to liability arising out of the performance of this contract.
Such additional insured shall be covered to the full limits of liability purchased by the Contractor, even if those
limits of liability are in excess of those required by this Contract. The Contractor agrees that the insurance
hereunder will be primary and that any insurance carried by the City will be excess and not contributing.
C.
Provide and maintain minimum insurance limits as applicable.
COVERAGE
LIMITS OF LIABILITY
I. Commercial General Liability:
Policy shall include Bodily Injury, Property Damage, Personal Injury and
Broad Form Contractual Liability
Each Occurrence
$1,000,000
General Aggregate Per Project
$2,000,000
Products & Completed Operations Aggregate
$2,000,000
Personal and Advertising Injury
$1,000,000
Blanket Contractual Liability
$1,000,000
II. Commercial Automobile Liability
Policy shall include Bodily Injury and Property Damage, for any owned, Hired,
and/or Non-owned vehicles used in the operation, installation and maintenance
of facilities under this agreement.
Combined Single Limit
$1,000,000
III. Workers' Compensation (applicable to the State of Arizona)*1
Per Occurrence
Statutory
Employer's Liability
$1,000,000
Disease Each Employee
$1,000,000
Disease Policy Limit
$1,000,000
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT
CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303
Page 8 of 18
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
*1
Sole Proprietor/Independent Contractor designation is given to those who desire to waive their rights for
workers’ compensation coverage and benefits as outlined in ARS§ 23-901 and specifically ARS § 23-961
(O). If applicable, please request the Sole Proprietor/Independent Contractor form from the Contract
Officer listed in the solicitation.
D.
CLAIMS MADE INSURANCE COVERAGE: If any or part of the required insurance is written on a claims-made
basis, any policy retroactive date must precede the date of the contract and the Contractor must maintain such
coverage for a period not less than three (3) years following contract expiration, termination or cancellation.
E.
ADDITIONAL INSURANCE REQUIREMENTS: All Policies, excluding Employment Practices Liability and
Professional Liability (Errors & Omissions), shall include or be endorsed to include the following provisions:
1.
A waiver of subrogation endorsement in favor of the City of Tucson, for losses arising from work performed
by or on behalf of the Contractor (Including Worker’s Compensation).
2.The insurance afforded the contractor shall be primary insurance and that any insurance carried by the City of
Tucson and its agents, officials or employees shall be excess and not contributory.
3.Coverage provided by the Contractor shall not be limited to the liability assumed under the indemnification
provisions of this Contract.
F.
NOTICE OF COVERAGE MODIFICATIONS: Any changes material to compliance with this contract in the
insurance policies above shall require (10) days written notice from the contractor to the City of Tucson. Such
notice shall be sent directly to the Department of Procurement
G. ACCEPTABILITY OF INSURERS: Contractors insurance shall have an “A.M. Best” rating of not less than A-VII.
The City of Tucson in no way warrants that the required minimum insurer rating is sufficient to protect the
Contractor from potential insurer insolvency.
H.
VERIFICATION OF COVERAGE: Contractor shall furnish the City of Tucson with certificates of insurance
(ACORD form or equivalent approved by the City of Tucson) as required by this Contract. The certificates for
each insurance policy are to be signed by an authorized representative.
All certificates and endorsements are to be received and approved by the City of Tucson before work
commences. Each insurance policy required by this Contract must be in effect at or prior to commencement of
work and remain in effect for the duration of the contract and two (2) years after completion. Failure to maintain
the insurance policies as required by this Contract, or to provide evidence of renewal upon the City’s request, is
a material breach of contract.
All certificates required by this Contract shall be sent directly to the Business Services Department -
Procurement.
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT
CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303
Page 9 of 18
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
The City of Tucson project/contract number and project description shall be noted on the certificate of insurance.
The City of Tucson reserves the right to require complete copies of all insurance policies required by this
Contract at any time.
I.
SUBCONTRACTORS: Contractors’ certificate(s) shall include all subcontractors as insureds under its policies or
Contractor shall furnish to the City of Tucson separate certificates and endorsements for each subcontractor. All
coverages for subcontractors shall be subject to the minimum requirements identified above.
J.
EXCEPTIONS: In the event the Contractor or sub-contractor(s) is/are a public entity, then the Insurance
Requirements shall not apply. Such public entity shall provide a Certificate of Self- Insurance.
7.
BONDING: Contractors will be required to provide payment and performance bond equal to 100%
of the value of the negotiated value(s) of construction.
8.
SBE PROGRAM REQUIREMENTS: The SBE participation goal for individual projects awarded under this JOC
will be evaluated during the negotiation phase prior to award.
Program requirements are codified in Chapter 28, Article XIII of the Tucson Procurement Code. The Prime
Contractor shall submit to the Business Services Department, Business Enterprise & Compliance Program,
either a completed statement of proposed SBE Participation Plan or an Affidavit of Good Faith Efforts indicating
whether the request is for a full or partial waiver.
The SBE Plan must include:
1.The name of the SBE subcontractors/suppliers;
2.The type and scope of work or service each SBE will perform;
3.The dollar value of each SBE’s subcontract;
4.The dollar value of the prime contractor’s self-performed work if claiming SBE credit;
5.The total dollar value of SBE work performed and percentage of the contract value;
6.If the contract goal is not met, evidence of good faith efforts.
An approved plan or waiver request must be in place prior to issuance of Notice To Proceed (NTP).
A signed offer in response to this RFQ represents the offerors intent to comply with the SBE program.
See APPENDIX D - SBE Program Provisions for Professional Services
9.DBE PROGRAM REQUIREMENTS: The Job Order Contractor shall be required to comply with DBE Program
requirements, if goals are applicable, on federally funded projects that exceed the Formal Solicitation
Threshold established by the Tucson Procurement Code, currently at fifty thousand dollars ($50,000).
Program requirements are codified in Chapter 28, Article XIII of the Tucson Procurement Code. The Job
Order Contractor shall submit to the Office of Equal Opportunity Programs (OEOP) via the city’s Project
Manager, after the project proposal phase, either a completed statement of proposed DBE Participation
Plan or an Affidavit of Good Faith Efforts indicating whether the request is for a full or partial waiver.
The DBE Plan must include:
1.The names and addresses of the DBE subcontractors/suppliers;
2.The type and scope of work or service each DBE will perform;
3.The dollar value of work as a percentage of the total contract value.
4.
If the contract goal is not met, evidence of good faith efforts.
An approved plan or waiver request must be in place prior to issuance of the Notice To Proceed (NTP) for
individual project construction as well as a DBE Acknowledgment of Participation which provides signed
confirmation from the DBE(s) that they are participating in the contract as provided in the prime contractor’s
commitment in their DBE plan.
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303 Page 10 of 18
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
A signed offer in response to this RFQ represents the offerors’s intent to comply with the DBE program.
Also See APPENDIX (E) - DBE Program Provisions for Alternative Project Delivery Method (APDM) for
Construction Services.
10.FEDERALLY FUNDED PROJECTS: For projects that are identified as being federally funded, Federal Labor
Standards will be applicable to that project. All Federal forms are attached and will be incorporated into any
resulting contract(s)*. It shall be mandatory upon the Contractor(s) to whom the contract is awarded, and
upon subcontractors working on this project to comply with the following:
A. Davis Bacon Act: (AZ Wage Decision) Minimum wage rate, withholding, payroll, apprentice,
subcontracting, and termination provisions.
B. Work Hour and Safety Standards Act: overtime pay and safety.
C. Mandatory Preconstruction meeting for Prime Contractor and all listed subcontractors
IV.
STANDARD TERMS AND CONDITIONS
1. ADVERTISING: Contractor shall not advertise or publish information concerning this Contract without
prior written consent of the City’s Director of Procurement.
2. AMERICANS WITH DISABILITIES ACT: The Contractor shall comply with all applicable provisions of
the Americans with Disabilities Act (Public Law 101-336, 42 U.S.C. 12101, et seq.) and applicable
Federal regulations under the Act.
3. APPLICABLE LAW: This Contract shall be governed, and the City and Contractor shall have all
remedies afforded to each, by the Tucson Procurement Code and the law of the State of Arizona.
State law claims shall be brought only in Pima County Superior Court.
4. ARBITRATION: It is understood and agreed that no provision of the Contract relating to arbitration or
requiring arbitration shall apply to or be binding upon the City except by the City's express written
consent given subsequent to the execution of the Contract. However, if both parties agree, disputes
may be resolved through arbitration. The dispute shall be resolved as provided for in A.R.S. Sec. 12-
1501, et seq. Consultant shall continue to render the services required by this Contract without
interruption, notwithstanding the provisions of this section.
5. ASSIGNMENT-DELEGATION: No right or interest in this Contract shall be assigned by the Contractor
without prior written permission of the City, and no delegation of any duty of the Contractor shall be
made without prior written permission of the City's Director of Procurement. The City shall not
unreasonably withhold approval and shall notify the Contractor of the City's position by written notice.
6. CHILD/SWEAT-FREE LABOR POLICY: The Contractor shall comply with all applicable provisions of
the United States Federal and State Child Labor and Worker's Right laws and agrees if called upon to
affirm in writing, that they, and any subcontractor involved in the provision of goods to the City, are in
compliance.
7. CLEAN UP: The Contractor shall at all times keep the contract area, including storage areas used by
the Contractor, free from accumulation of waste material or rubbish and, prior to completion of the
work, remove any rubbish from the premises and all tools, scaffolding, equipment and materials not
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303 Page 11 of 18
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
property of the City. Upon completion of the repair, the Contractor shall leave the work and premises in
clean, neat and workmanlike condition.
8. COMMENCEMENT OF WORK: The Contractor is cautioned not to commence any billable work or
provide any material or service under this Contract until Contractor receives purchase order or is
otherwise directed to do so, in writing, by the City.
9. CONFIDENTIALITY OF RECORDS: The Contractor shall establish and maintain procedures and
controls that are acceptable to the City for the purpose of assuring that no information contained in its
records or obtained from the City or from others in carrying out its functions under the Contract shall
be used by or disclosed by it, its agents, officers, or employees, except as required to efficiently
perform duties under the Contract. Persons requesting such information should be referred to the City.
Information pertaining to individual persons shall not be divulged other than to employees or officers of
Contractor as needed for the performance of duties under the Contract, unless otherwise agreed to in
writing by the City.
10. CONFLICT OF INTEREST: Subconsultants who design and/or develop specifications for materials for
this project will be precluded from contract award for that item if a solicitation is issued for the item.
11. CONTRACT MODIFICATIONS: No work outside of the contracted scope of work shall begin without an
executed Contract Amendment and a written Notice to Proceed. Contractor shall notify COT immediately
when projected hours for individuals under contract are within no less than 20% of exceeding the
proposed hours. All direction regarding tasks, deliverables and level of effort shall originate with the
designated City Project Manager/Contract Representative or the Department of Procurement. No
direction shall be taken from, nor shall any work commence with direction from, any other party.
12. CONTRACT AMENDMENTS: The Procurement Department has the sole authority to:
A.Amend the contract or enter into supplemental verbal or written agreements;
B.Grant time extensions or contract renewals;
C.Otherwise modify the scope or terms and provisions of the contract.
This Contract shall only be modified with the approval of the Department of Procurement. Except in the
case of a documented emergency, approval must be granted prior to performance. Any contract
modification not explicitly approved by the Procurement Department through a written contract
amendment or change order is performed at the sole risk of the Contractor and may not be eligible for
payment by the City.
13. CONTRACT: The Contract shall be based upon the Request for Proposal issued by the City and the
Offer submitted by the Contractor in response to the Request for Proposal. The offer shall substantially
conform to the terms, conditions, specifications and other requirements set forth within the text of the
Request for Proposal. The City reserves the right to clarify any contractual terms with the concurrence
of the Contractor; however, any substantial non-conformity in the offer, as determined by the City's
Director of Procurement, shall be deemed non-responsive and the offer rejected. The Contract shall
contain the entire agreement between the City of Tucson and the Contractor relating to this
requirement and shall prevail over any and all previous agreements, contracts, proposals,
negotiations, purchase orders, or master agreements in any form.
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303 Page 12 of 18
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
14. DEFAULT IN ONE INSTALLMENT TO CONSTITUTE TOTAL BREACH: Contractor shall deliver
conforming materials in each installment or lot of this Contract and may not substitute nonconforming
materials. Delivery of nonconforming materials, or default of any nature, may constitute breach of the
Contract. Noncompliance may be deemed a cause for possible Contract termination.
15. DUPLEXED/RECYCLED PAPER: In accordance with efficient resource procurement and utilization
policies adopted by the City of Tucson, the Contractor shall ensure that, whenever practicable, all
printed materials produced by the Contractor in the performance of this Contract are duplexed (two-
sided copies), printed on recycled paper and labeled as such.
16. EXCLUSIVE POSSESSION: All services, information, computer program elements, reports and other
deliverables created under this Contract are the sole property of the City of Tucson and shall not be
used or released by the Contractor or any other person except with prior written permission by the
City.
17. FEDERAL IMMIGRATION LAWS AND REGULATIONS: Contractor warrants that it complies with all
Federal Immigration laws and regulations that relate to its employees and complies with A.R.S. § 23-
214(A) and that it requires the same compliance of all subcontractors under this Contract. Contractor
acknowledges that pursuant to A.R.S. § 41-4401 and effective September 30, 2008, a breach of this
warranty is a material breach of this Contract subject to penalties up to and including termination of
this Contract. The City retains the legal right to audit the records of the Contractor and inspect the
papers of any employee who works for the Contractor to ensure compliance with this warranty and the
Contractor shall assist in any such audit. The Contractor shall include the requirements of this
paragraph in each contract with subcontractors under this Contract.
If the Contractor or subcontractor warrants that it has complied with the employment verification
provisions prescribed by sections 274(a) and 274(b) of the Federal Immigration and Nationality Act
and the E-verify requirements prescribed by A.R.S. § 23-214(A), the Contractor or subcontractor shall
be deemed to be in compliance with this provision. The City may request proof of such compliance at
any time during the term of this Contract by the Contractor and any subcontractor.
18. FORCE MAJEURE: Except for payment of sums due, neither party shall be liable to the other nor
deemed in default under this Contract if and to the extent that such party's performance of this
Contract is prevented by reason of Force Majeure. The term "Force Majeure" means an occurrence
that is beyond the control of the party affected and occurs without its fault or negligence. Force
Majeure shall not include late performance by a subcontractor unless the delay arises out of a Force
Majeure occurrence in accordance with this Force Majeure term and condition.
If either party is delayed at any time in the progress of the work by Force Majeure, the delayed party
shall notify the other party in writing of such delay, as soon as is practical, of the commencement
thereof and shall specify the causes of such delay in such notice. Such notice shall be hand-delivered
or mailed certified-return receipt and shall make a specific reference to this article, thereby invoking its
provisions. The delayed party shall cause such delay to cease as soon as practicable and shall notify
the other party in writing when it has done so. The time of completion shall be extended by contract
modification for a period of time equal to the time that results or effects of such delay prevent the
delayed party from performing in accordance with this Contract.
19. GRATUITIES: The City may, by written notice to the Contractor, terminate this Contract if it is found
that gratuities, in the form of entertainment, gifts, meals or otherwise, were offered or given by the
Contractor or any agent or representative of the Contractor, to any officer or employee of the City
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303 Page 13 of 18
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
amending, or the making of any determinations with respect to the performing of such Contract. In the
event this Contract is terminated by the City pursuant to this provision, the City shall be entitled, in
addition to any other rights and remedies, to recover or withhold from the Contractor the amount of the
gratuity.
20. INDEMNIFICATION: To the fullest extent permitted by law, Consultant, its successors, assigns and
guarantors, shall pay, defend, indemnify and hold harmless City of Tucson and Regional
Transportation Authority (RTA), its agents, representatives, officers, directors, officials and employees
from and against all allegations, demands, proceedings, suits, actions, claims, damages, losses,
expenses, including but not limited to, reasonable attorney fees, court costs, and the cost of appellate
proceedings, and all claim adjusting and handling expense, related to, arising from or out of or
resulting from any actions, acts, errors, mistakes or omissions caused in whole or part by Consultant
relating to work or services in the performance of this Contract, but only to the extent caused by
negligence, recklessness or intentional wrongful conduct including but not limited to, any
Subconsultant or anyone directly or indirectly employed by any of them or anyone for whose acts any
of them may be liable and any injury or damages claimed by any of Consultant’s and Subconsultant’s
employees, provided, however, that this duty to indemnify, hold harmless and defend shall not include
losses, damages, claims, liabilities, costs and expenses to the extent arising from the acts or
omissions of the City. If Consultant or any of Consultant’s employees are certified to receive a
premium tax credit or cost sharing reduction which triggers a §4980H (a) or (b) penalty against the
City, the Consultant shall indemnify the City from and shall pay any assessed tax penalty.
21. INDEPENDENT CONTRACTOR: It is understood that each party shall act in its individual capacity
and not as an agent, employee, partner, joint venturer, or associate of the other. An employee or agent
of one party shall not be deemed or construed to be the employee or agent of the other party for any
purpose.
The Contractor shall not be entitled to compensation in the form of salaries, holidays, paid vacation,
sick days, or pension contributions by the City. The City of Tucson will not provide any insurance
coverage to the Contractor, including Worker's Compensation coverage. The Contractor is advised
that taxes, social security payments, and other withholdings shall not be withheld from a City payment
issued under this Contract and that Contractor should make arrangements to directly pay such
expenses. Contractor is responsible for compliance with the Affordable Care Act for Contractor and
any of Contractor’s employees.
22. INSPECTION AND ACCEPTANCE: All material or service is subject to final inspection and
acceptance by the City. Material or service failing to conform to the specifications of this Contract shall
be held at the Contractor's risk and may be returned to the Contractor. If returned, all costs are the
responsibility of the Contractor. Noncompliance may be deemed a cause for possible Contract
termination.
23. INTERPRETATION-PAROLE EVIDENCE: This Contract is intended by the parties to be a final
expression of their agreement and is intended also as a complete and exclusive statement of the
terms of this agreement. No course of prior dealings between the parties and no usage of the trade
shall be relevant to supplement or explain any term used in the Contract. Acceptance or consent in the
course of performance under this Contract shall not be relevant to determine the meaning of this
Contract even though the accepting or consenting party has knowledge of the nature of the
performance and the opportunity to object.
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303 Page 14 of 18
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
24. LICENSES: Contractor shall maintain in current status all Federal, State, and local licenses and
permits required for the operation of the business conducted by the Contractor as applicable to this
Contract.
25. LIENS: All materials, services, and other deliverables supplied to the City under this Contract shall be
free of all liens other than the security interest. Security interest shall extinguish upon full payment
made by the City. Upon the City’s request, the Contractor shall provide a formal release of all liens.
26. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender of materials must fully comply with all
provisions of this Contract. If a tender is made which does not fully comply, this shall conform to the
termination clause set forth within this document.
27. NON-EXCLUSIVE CONTRACT: Any contract resulting from this solicitation shall be awarded with the
understanding and agreement that it is for the sole convenience of the City of Tucson. The City
reserves the right to obtain like goods or services from another source when necessary.
28. OVERCHARGES BY ANTITRUST VIOLATIONS: The City maintains that, in actual practice,
overcharges resulting from antitrust violations are borne by the purchaser. Therefore, to the extent
permitted by law, the Contractor hereby assigns to the City any and all claims for such overcharges as
to the materials or services used to fulfill the Contract.
29. PATENT INFRINGEMENT: The Consultant and the surety shall defend any suit or proceeding
brought against the procuring agency, during the prosecution or after the completion of the work,
based on a claim that manufacture, sale, or use of any method, process, machine, technique, design,
living thing, genetic material, or composition of matter, or any part thereof, furnished or used under this
Contract constitutes an infringement of any patent, trademark or copyright and the Consultant shall
pay all damages and costs awarded therein, against the procuring agency and any affected third party
or political subdivision. If manufacture, sale, or use of said method, process, machine, technique,
design, living thing, genetic material, or composition of matter, or any part thereof, is in such suit held
to constitute infringement and if manufacture, sale, or use of said method, process, machine,
technique, design, living thing, genetic material, or composition of matter, or part thereof, is enjoined,
the Consultant shall, at its own expense, either procure for the procuring agency the right to continue
manufacture, sale, or use of said method, process, machine, technique, design, living thing, genetic
material, or composition of matter, or part thereof, or replace same with noninfringing method, process,
machine, technique, design, living thing, genetic material, or composition of matter, or part, or modify it
so it becomes noninfringing.
If appropriate, the Consultant shall furnish the City Contract Representative satisfactory evidence of
patent licenses or patent releases covering City-specified proprietary materials, equipment, devices or
processes, as the case may be.
30. PAYMENT: The City’s preferred method of payment is via credit card. The City will issue a Purchase
Order and, in some cases, either provide a credit card for payment at the time of ordering or pay
subsequent invoices by credit card upon receipt of goods or services in good order. However, not all
City employees will possess a credit card and, therefore, the City reserves the right to make payment
by check as it deems necessary.
Unless payment is made by credit card at time of order or point of sale, a separate invoice shall be
issued for each shipment of material or service performed, and no payment shall be issued prior to
receipt of material or service and correct invoice.
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303 Page 15 of 18
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
The City shall make every effort to process payment for the purchase of materials or services within
twenty-one (21) calendar days after receipt of materials or services and a correct invoice.
The Contractor's payment terms shall apply to all purchases and to all payment methods.
31. PROTECTION OF GOVERNMENT PROPERTY: The Contractor shall use reasonable care to avoid
damaging existing buildings, equipment, and vegetation (such as trees, shrubs, and grass) on City
property. If the Contractor fails to do so and damages such property, the Contractor shall replace or
repair the damage at no expense to the City, as determined and approved by the City’s Director of
Procurement. If the Contractor fails or refuses to make such repair or replacement, the City will
determine a cost and the Contractor shall be liable for the cost thereof, which may be deducted from
the Contract price.
32. PROVISIONS REQUIRED BY LAW: Each and every provision of law and any clause required by law
to be in the Contract shall be read and enforced as though it were included herein, and if through
mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon the
application of either party the Contract shall be amended to make such insertion or correction.
33. RECORDS: Internal control over all financial transactions related to this Contract shall be in
accordance with sound fiscal policies. The City may, at reasonable times and places, audit the books
and records of the Contractor and/or any subcontractors. Said audit shall be limited to this Contract.
Consultant shall maintain all pertinent files, records, and documents which relate to the delivery of the
services provided in this Contract. Supporting documents, files, and records shall be retained by
Consultant for at least five (5) years after the termination of this Contract.
34. RIGHT TO ASSURANCE: Whenever one party to this Contract has reason to question, in good faith,
the other party's intent to perform, the former party may demand that the other party give a written
assurance of this intent to perform. In the event that a demand is made and no written assurance is
given within five (5) days, the demanding party may treat this failure as the other party’s intent not to
perform and as a cause for possible Contract termination.
35. RIGHT TO INSPECT: The City may, at reasonable times, and at the City's expense, inspect the place
of business of a Contractor or subcontractor which is related to the performance of any Contract as
awarded or to be awarded.
36. RIGHTS AND REMEDIES: No provision in this document or in the Contractor's proposal shall be
construed, expressly or by implication, as a waiver by either party of any existing or future right and/or
remedy available by law in the event of any claim, default or breach of contract. The failure of either
party to insist upon the strict performance of any term or condition of the Contract, to exercise or delay
the exercise of any right or remedy provided in the Contract or by law, or to accept materials or
services required by this Contract or by law shall not be deemed a waiver of any right of either party to
insist upon the strict performance of the Contract.
37. SEVERABILITY: The provisions of this Contract are severable to the extent that any provision or
application held to be invalid shall not affect any other provision or application of the Contract which
may remain in effect without the valid provision or application.
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303 Page 16 of 18
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
38. SHIPMENT UNDER RESERVATION PROHIBITED: No tender of a bill of lading shall operate as a
tender of the materials. Non-compliance shall conform to the termination clause set forth within this
document.
39. SUBCONTRACTS: No subcontract shall be entered into by the Contractor with any other party to
furnish any of the material/service specified herein without the advance written approval of the City's
Director of Procurement. All subcontracts shall comply with Federal and State laws and regulations
which are applicable to the services covered by the subcontract and shall include all the terms and
conditions set forth herein which shall apply with equal force to the subcontract, as if the subcontractor
were the Contractor referred to herein. The Contractor is responsible for contract performance whether
or not subcontractors are used.
40. SUBSEQUENT EMPLOYMENT: The City may terminate this Contract without penalty or further
obligation pursuant to A.R.S. Section 38-511 if any person significantly involved in initiating,
negotiating, securing, drafting, or creating the Contract, on behalf of the City, is or becomes, at any
time while the Contract or any extension of the Contract is in effect, an employee of, or a contractor to,
any other party to this Contract with respect to the subject matter of the Contract. Termination shall be
effective when written notice from the City's Director of Procurement is received by the parties to this
Contract, unless the notice specifies a later time.
41. SUSPENSION OF WORK:
A. The City may order the Consultant, in writing, to suspend, delay, or interrupt all or any part of
the work under this Contract for the period of time that the City determines appropriate for the
convenience of the City.
B. The Consultant agrees that no charges or claims for damages shall be made against the City
for any delays or hindrances during the progress of this Contract. Such delays or hindrances, if
any will be covered by an extension of time for such reasonable period as mutually agreed
upon between the parties. It is agreed and understood, however, that permission to proceed
with the Contract after the established completion date, shall not be construed as a waiver by
the City of any of the rights herein.
42. TERMINATION OF CONTRACT: This Contract may be terminated at any time by mutual written
consent, or by the City, with or without cause, upon giving thirty (30) days written notice. The City, at
its convenience, by written notice, may terminate this Contract, in whole or in part. If this Contract is
terminated, the City shall be liable only for payment under the payment provisions of this Contract for
services rendered and accepted material received by the City before the effective date of termination.
The City reserves the right to terminate the whole or any part of this Contract due to the failure of the
Contractor to carry out any term or condition of the Contract. The City will issue a written ten (10) day
notice of default to the Contractor for acting or failing to act as specified in any of the following:
In the opinion of the City, the Contractor provides personnel that do not meet the requirements of the
Contract;
In the opinion of the City, the Contractor fails to perform adequately the stipulations, conditions or
services/specifications required in this Contract;
In the opinion of the City, the Contractor attempts to impose personnel, materials, products or
workmanship of an unacceptable quality;
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303 Page 17 of 18
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
The Contractor fails to furnish the required service and/or product within the time stipulated in the
Contract;
In the opinion of the City, the Contractor fails to make progress in the performance of the requirements
of the Contract;
The Contractor gives the City a positive indication that the Contractor will not or cannot perform to the
requirements of the Contract.
Each payment obligation of the City created by this Contract is conditioned upon the availability of City,
State and Federal funds that are appropriated or allocated for the payment of such an obligation. If
funds are not allocated by the City and available for the continued purchase of the services and/or
materials provided under this Contract, this Contract may be terminated by the City at the end of the
period for which funds are available. The City will endeavor to notify the Contractor in the event that
continued service will or may be affected by non-appropriation. No penalty shall accrue to the City in
the event this provision is exercised, and the City shall not be obligated or liable for any future
payments due or for any damages as a result of termination under this paragraph.
43. TITLE AND RISK OF LOSS: The title and risk of loss of material or service shall not pass to the City
until the City actually receives the material or service at the point of delivery, unless otherwise
provided within this Contract.
44. WARRANTIES: Contractor warrants that all material or service delivered under this Contract shall
conform to the specifications of this Contract. Mere receipt of shipment of the material or service
specified and any inspection incidental thereto by the City shall not alter or affect the obligations of the
Contractor or the rights of the City under the foregoing warranties. Additional warranty requirements
may be set forth in this document.
V.
Price
Scope, schedule, price, and liquidated damages (if applicable) are agreed upon in an executed Notice to
Proceed letter prior to proceeding with the work. Contractor to charge in accordance with prices/rates in
Appendix F.
VI.
Subcontractor Selection Plan
Contractor will select subcontractors for services under this contract pursuant to the plan in Appendix G
and in accordance with the requirements of A.R.S. 34-603.
CONTRACT APPENDICES:
Appendix A GENERAL CONDITIONS FOR CONSTRUCTION
CITY OF TUCSON BUSINESS SERVICES DEPARTMENT CONTRACT NO. 212710-02
255 W. ALAMEDA, 6TH FLOOR, TUCSON, AZ 85701-1303 Page 18 of 18
P.O. BOX 27210, TUCSON, AZ 85726-7210
CONTRACT OFFICER: ANDREW KLOS, MBA
PH: (520) 837-6685 FAX: (520) 791-4735
SANDRA.ALCORN@TUCSONAZ.GOV
Appendix B CONSTRUCTION AGREEMENT
Appendix C FTA TERMS AND CONDITIONS
Appendix D SBE PROGRAM PROVISIONS
Appendix E DBE PROGRAM PROVISIONS
Appendix F PRICING
Appendix G SUBCONTRACTOR SELECTION PLAN
Appendix H BONDS
Appendix I INSURANCE
JOB ORDER CONTRACT 212710-02
INSTALLATION, MAINTENANCE, REPAIR OF FIBER/COPPER
NETWORKS
APPENDIX A
GENERAL CONDITIONS FOR CONSTRUCTION
GENERAL CONDITIONS OF THE CONTRACT
ARTICLE
1.
DEFINITIONS
ARTICLE
2.
THE CONTRACT DOCUMENTS; THEIR
EXECUTION, CORRELATION AND INTENT
2.1
The Contract Documents
2.2
Intent of the Contract Documents
2.3
Execution
2.4
Ownership of the Contract Documents
ARTICLE
3.
ADMINISTRATION OF THE CONTRACT
3.1
Lines of Authority and Communications
3.2
City Contract Representative's General
Authority and Responsibilities
3.3
Public Inspections
3.4
Special Inspections and Testing of Materials
ARTICLE
4.
THE CONTRACTOR'S DUTIES AND RESPONSIBILITIES
4.1
Contractor's Review of Contract
Documents and Site Conditions
4.2
Contractor's Supervision
4.3
Materials and Labor; Warranty
4.4
Construction Schedules and Submittals
4.5
Documents and Samples at the Site
4.6
Protection and Use of Site
(Signs, Utilities, Water, Sanitation,
Traffic, etc.)
4.7
Cutting and Patching
4.8
Cleaning Up
4.9
Emergencies
4.10
Permits, Fees and Notices
4.11
Royalties and Patents
4.12
Protection and Persons and Property
4.13
Indemnification and Insurance
ARTICLE
5.
SUBCONTRACTS AND SEPARATE CONTRACTS
5.1
Subcontracts
5.2
Separate Contracts
ARTICLE
6.
TIME FACTORS; LIQUIDATED DAMAGES
6.1
Time
6.2
Liquidated Damages
6.3
Delays and Time Extensions
ARTICLE
7.
PAYMENTS TO THE CONTRACTOR
7.1
Contract Price; Request for Payment; Schedule of Values
7.2
Certification and Payment; Retainage; Substitute Securities
7.3
Payment Withheld
7.4
Substantial Completion
7.5
Final Completion and Final Payment
7.6
Consent of Surety
7.7
Partial Utilization
ARTICLE
8.
UNCOVERING AND CORRECTION OF WORK;
CHANGES IN THE WORK
8.1
Uncovering of Work
8.2
Correction of Work
8.3
Changes in the Work
ARTICLE
9.
SUSPENSION OR TERMINATION OF THE WORK
9.1
Suspension of the Work for Cause;
City's Right to Perform the Work
9.2
Termination by the City for Cause
9.3
Suspension by the City for Convenience
9.4
Termination by the City for Convenience
9.5
Contractor's Right to Terminate Contract
ARTICLE
10.
CLAIMS AND DISPUTES
10.1
City Contract Representative's Resolution of
Claims and Disputes; Review by Contracting
Officer
ARTICLE
11.
MISCELLANEOUS PROVISIONS
11.1
Governing Law
11.2
Written Notice
ARTICLE
12.
CONSTRUCTION SERVICES AGREEMENT
12.1
Project and Contract Price
12.2
Contract Time
12.3
Miscellaneous
ARTICLE
1.
DEFINITIONS
Wherever used in these General Conditions or in the other Contract Documents, the following
terms have the meanings indicated which are applicable to both the singular and plural thereof:
Amendment - written or graphic instrument issued prior to the due date which clarifies, corrects
or changes the Solicitation.
Architect/Engineer - the person licensed to practice architecture/engineering by the State of
Arizona and who is identified as the Architect/Engineer of Record by affixing his/her seal upon
the Contract plans, drawings, specifications and related documents. May be utilized to provide
construction administration services.
Bonds - bid, performance and payment bonds and other instruments of security.
Change Order - a document approved by the City Contract Representative and which is signed
by the Contractor and the City’s Director of Procurement or duly authorized designee and
authorizes an addition, deletion or revision in the Work, or an adjustment in the Contract Price or
the Completion time, issued on or after the effective date of the Contract.
City - means the City of Tucson, Arizona, a municipal corporation.
City Contract Representative - the City official administering the Contract for the City of Tucson.
Completion Time - the number of consecutive calendar days agreed to by the City and
Contractor for completion of the Work, which may be revised by written Change Order.
Construction – the process of building, altering, repairing, improving or demolishing any public
structure or building or other public improvements of any kind to any real public property.
Contract - the written agreement and all associated attachments, drawings, amendments and
change orders executed between the City and the Contractor covering the Work to be performed.
Contract Price - the amount payable by the City to the Contractor for satisfactory completion of
the Work, and as specified in the Contract as may be amended by written Change Order.
Contract Officer - the City official who conducts the solicitation process to secure a Contractor
for the Work and who acts under the authority and direction of the City’s Director of Procurement
and in accordance with the Tucson Procurement Code.
Contractor - the person, firm or corporation with whom the City has entered into the Contract.
Director of Procurement – the person acting as Director of the City’s Department of Procurement
and who has authority to award and revise City solicitations and contracts for construction,
construction services, and construction-related services as necessary.
Drawings - the graphic and pictorial portions of the contract, wherever located and whenever
issued, showing the configuration, location and dimensions of the Work, generally including plans,
elevations, sections, details, schedules and diagrams.
Estimate for Payment - a form furnished by the City or an approved form submitted by the
Contractor in lieu of city furnished form, and is required to be used when submitting requests for
payments for work actually performed and materials supplied during a an agreed-to preceding
period of time.
Field Order - a written order or directive issued by the City Contract Representative that orders
minor changes in the Work.
Final Completion Date - the calendar date when the Work is one hundred percent (100%)
complete as determined by the City.
Liquidated Damages – a sum set forth in the Contract documents that will be deducted from
any monies due to the Contractor, not as a penalty, but in lieu of actual damages for late
completion of the work.
Notice to Proceed - a written notice given by the City to the Contractor fixing the date on which
the Completion time will commence and upon which the Contractor shall start to perform the
Contractor's obligations under the Contract.
Public Inspector(s) - that person or persons provided by the public authorities having code
jurisdiction and who perform day-to-day inspections of the Work for compliance with applicable
codes.
Schedule of Values - a schedule submitted by the Contractor setting forth the values allocated
to various portions of the Work, prepared in such form and supported by such data to substantiate
its accuracy as the City Contract Representative may require. This schedule must be submitted
before the Contractor submits its first application for progress payment and shall be used as a
basis for reviewing and approving payments to the Contractor.
Shop Drawings - drawings, diagrams, illustrations, schedules and other data which are
specifically prepared by or for the Contractor to illustrate, in detail, how some portion of the Work
shall be fabricated and/or installed, and all illustrations, brochures, standard schedules,
performance charts, instructions, diagrams and other information prepared by a supplier and
submitted by the Contractor to illustrate material or equipment for some portion of the Work.
Specifications - those portions of the Contract, or Notice to Proceed if a Job Order, consisting of
written technical descriptions of materials, equipment, construction systems, standards and
workmanship as applied to the Work and certain administrative details applicable thereto.
Substantial Completion – a written declaration of the date upon which the City, in its sole
discretion, determines the Work is substantially complete such that the City has beneficial use
and/or occupancy. Upon substantial completion, the right of the City to assess liquidated
damages for time after the date of substantial completion ceases, except as allowed for failure to
meet final completion within thirty days of substantial completion.
Tucson Procurement Code – in addition to applicable State statutes and applicable Federal
regulations and requirements, the municipal ordinance that governs the construction services
contracting process as well as contract administration processes including the resolution of
contract claims, disputes and controversies.
The Work - the entire completed construction or the various separately identifiable parts thereof
required to be furnished under the Contract, or, in the case of a job-order contract, within individual
Notices to Proceed. Work is the result of performing services, furnishing labor and furnishing
and incorporating materials and equipment into the construction, all as required by the Contract.
and/or Notice to Proceed, as appropriate.
ARTICLE
2.
THE CONTRACT ITS EXECUTION AND INTENT
2.1
The Contract
2.1.1
The documents in the Contract include the solicitation contents, any amendments,
drawings, change orders and approved Contractor submittals.
2.1.2
The Contract comprises the entire agreement between the City and the Contractor
concerning the Work and supersedes any prior negotiations, representations or
agreements, either written or oral. The Contract may be amended or modified only
by an instrument in writing and fully executed by the authorized parties to the
Contract.
2.2
Intent of the Contract
2.2.1
The intent of the Contract is to include all labor, materials, equipment, transportation
and all other costs and expenses necessary for the proper execution and completion
of the Work by the Contractor.
2.2.2
The Contractor shall take no advantage of any apparent error or omission in the
plans, estimated quantities or specifications. In the event the Contractor discovers
such an error or omission after contract award, the Contractor shall immediately
notify the City Contract Representative. The City Contract Representative shall then
make such corrections and interpretations as may be deemed necessary for fulfilling
the intent of the contract.
2.2.2
The Contract shall be construed in accordance with the laws of the State of Arizona,
and all such laws regulating the construction of public works by the City are hereby
incorporated herein by reference and made a part hereof.
2.2.3
Materials or work described in words, which have a well-known technical or trade
meaning, shall be held to refer to such recognized standards.
2.2.4
The organization of the Contract into divisions, sections or articles is merely for the
purpose of convenient reference, and neither the headings nor divisions shall have
any legal or Contractual significance and shall not control the division of the Work
by the Contractor among the various subcontractor or trades.
2.2.5
The Contractor shall include all utility fees, permits, licenses, etc. including sewer
connection fees in each estimate or proposal submitted.
2.3
Execution
2.3.1
Execution of the Contract by the Contractor is a representation that the Contractor
has thoroughly examined the Contract.
2.4
Ownership of the Contract
2.4.1
The Contract, including, but not limited to, the drawings and specifications, is the
property of the City and is not to be used by the Contractor or any subcontractor on
other projects outside the scope of the Work without the express written consent of
the City.
ARTICLE
3.
ADMINISTRATION OF THE CONTRACT
3.1
Lines of Authority and Communications
3.1.1
The City's Director of Procurement is the City official with overall authority and
responsibility for the award and administration of City Contracts. The Director of
Procurement or his/her designated Procurement Department representative after
consultation with the City Contract Representative has the ultimate authority to
resolve disputes concerning Contract performance and to stop the Work whenever
such stoppage may be necessary to ensure the proper execution of the Work.
3.1.2
The City Contract Representative is the designated representative of the particular
City department for which the Work is being constructed (the “user department”) or
the City department which is responsible for the oversight of the work.
3.1.3
Day-to-day administration of the Contract is the responsibility of the City Contract
Representative. The City Contract Representative is the City’s representative during
the prosecution of the Work and shall act as surveillant and technical advisor for the
City. The City Contract Representative duties are more fully described in Section
3.2 of this Article.
3.1.4
The Contractor shall supervise and direct the Work and shall be solely responsible
for, and have control over, construction means, methods, techniques, sequences
and procedures, and for coordinating all portions of the Work, unless the Contract
gives other specific instructions concerning these matters. The Contractor's duties
and responsibilities are more fully described in Article 4 of these Contract conditions.
3.1.5
Except where the Contract otherwise provides or where direct communication has
been specifically authorized, the Contractor shall initially communicate with the City
Contract Representative.
3.2
City Contract Representative’s General Authority and Responsibilities
3.2.1
Unless the Contractor is responsible for the design of the Work, the City Contract
Representative shall furnish to the Contractor, free of charge unless it is provided
otherwise in the Contract, up to three copies of drawings, specifications and
instructions available for the execution of the Work. The City Contract
Representative may furnish additional clarifications or interpretations in writing or by
drawings as may be necessary for the proper progress and execution of the Work.
Such additional clarifications and interpretations shall be furnished with reasonable
promptness, and the Contractor shall not do work without drawings or written
clarifications where needed. All drawings, specifications and copies thereof
furnished by the City Contract Representative are City property. They are not to be
used on other work and, with the exception of the signed Contract, and are to be
returned to the City Contract Representative at the completion of the Work.
3.2.2
The City Contract Representative shall make general surveillance of the Work. By
making sufficient periodic visits to the site of the Work, the City Contract
Representative will become thoroughly familiar with the progress and quality of
completed portions of the Work, and will assess if the Work is being performed in a
manner indicating that the Work, when completed, will be in accordance with the
Contract.
3.2.3
The City Contract Representative will decide all questions which may arise as to the
quality and acceptability of materials furnished and Work performed and as to the
rate of progress of the Work, and all questions which may arise as to the
interpretation of the drawings and specifications.
3.2.4
The City Contract Representative shall have the authority to reject work that is not
in conformity with the Contract and to order additional inspections and testing of the
Work. The City Contract Representative's failure during the progress of work to
discover or reject materials or work not in accordance with the plans, specifications
or contract documents shall not be considered an acceptance of the work or
materials or a waiver of defects. Neither the failure of the City Contract
Representative to properly perform inspections, tests or approvals required by the
contract documents nor the activities or duties of the City Contract Representative
in the administration of this contract shall relieve the Contractor from the contractor's
responsibility for the means, methods, techniques, sequences or scheduling of the
construction or the obligation to perform the work in strict accordance with the
contract documents.
3.2.5
The City Contract Representative shall conduct an initial review of, and approve or
deny, written Change Orders submitted by the Contractor, and may prepare Change
Orders and provide field clarifications and corrections. All Change Orders shall be
approved by the Director of Procurement or designee prior to any work being done.
However, in emergencies endangering life or property, the City Contract
Representative may take action and issue orders which are deemed necessary to
avert the loss of life or property.
3.2.6
The City Contract Representative, pursuant to Article 10 of these General
Conditions, shall make recommendations to the Contract Officer as to all claims of
the Contractor.
3.2.7
The City Contract Representative will review and process the Contractor's monthly
Estimates for Payment, as more fully set forth in Article 7 of these General
Conditions.
3.2.8
The City Contract Representative will conduct inspections to determine the dates of
Substantial Completion and Final Completion and will certify such dates to the
Contract Officer.
3.2.9
The City Contract Representative will not have control over or charge of, and will not
be responsible for, construction means, methods, techniques, sequences or
procedures, or for safety precautions and programs in connection with the Work,
since these are solely the Contractor's responsibility. Failure of the City Contract
Representative to note unsafe working conditions or conditions dangerous to the
general public, or to stop work on account of such conditions, shall not relieve the
Contractor of sole responsibility for such conditions.
3.3
Public Inspections
3.3.1
Unless otherwise specifically provided in the Contract, Public Inspectors who
perform day-to-day inspections of the Work for compliance with applicable codes will
have authority to require compliance with drawings, specifications and applicable
codes, and may provide clarification of any unspecified or unclear item or situation.
3.3.2
If the drawings or specifications, laws, ordinances, or any public authority requires
any work to be specially tested or approved, the Contractor shall give the City
Contract Representative timely notice of its readiness for inspection. If the
inspection is by an individual, authority or entity other than the City Contract
Representative or the Public Inspectors, the Contractor shall advise the City Contract
Representative of the date fixed for such inspection.
3.3.3
All tests, inspections or approvals required to be performed by the City Contract
Representative, Public Inspectors, or other authorities or entities shall not relieve the
Contractor of their obligation to perform the Work in accordance with the Contract.
3.4
Special Inspections and Testing of Materials
3.4.1
All equipment and materials used in the construction of the Work, especially those
upon which the strength and durability of the structure may depend, will be subject
to adequate inspection and testing in accordance with accepted standards, to
establish conformance with specifications and suitability for the use intended, as
determined by the City Contract Representative.
3.4.2
The performance of tests and the engagement of testing laboratories or agencies
must have the prior approval of the City Contract Representative. Except as
provided in subsection 3.4.3, the City will pay for approved tests and services
rendered by the approved laboratory or agency in addition to the Contract price for
construction.
3.4.3
When initial tests indicate that any portion of the Work is not in conformance with the
Contract because of faulty workmanship, the Contractor shall be required to pay for
necessary re-tests. When initial tests indicate that the work is in conformance with
the Contract, any re-testing that’s ordered by the City shall be paid for by the City.
ARTICLE
4.
THE CONTRACTOR'S DUTIES AND RESPONSIBILITIES
4.1
Contractor's Review of Contract and Site Conditions
4.1.1
It shall be the duty of the Contractor to carefully study and compare all drawings,
specifications and instructions. If any discrepancies, errors, omissions or
inconsistencies are discovered in the drawings or specifications, or between the
drawings and specifications, or there are any conflicts between existing site
conditions and the requirements of the drawings and specifications, the Contractor
shall immediately call all such discrepancies to the attention of the City Contract
Representative. If the Contractor performs any construction activity knowing it
involves an error, inconsistency or omission in the Contract without such notice to
the City Contract Representative, the Contractor shall assume full responsibility for
such performance and shall pay a proportionate share of the attributable costs for
correction.
4.1.2
The Contractor shall be required to use, for data and dimensions, figures marked on
the drawings in preference to what the drawings may measure to scale; but in the
absence of figured dimensions, scale dimensions may be used with the prior written
concurrence of the City Contract Representative. The Contractor shall verify all
dimensions shown and check all measurements in connection with any present
building or buildings, level or grades, walks, driveways or other existing conditions
before executing any work. Errors or inconsistencies shall be reported to the City
Contract Representative immediately. It is the responsibility of the Contractor to
provide BLUESTAKE verification of underground utilities on and off the
construction site.
4.1.3
Change orders will not be issued to cover any cost, loss or expense for additional
labor or materials required to rectify any error or inconsistency in the drawings and
specifications unless prior notification is given by the Contractor to the City Contract
Representative.
4.1.4
The Contractor shall perform the Work in accordance with the Contract and with
shop drawings, product data and samples that have been approved by the City
Contract Representative.
4.1.5
Notwithstanding the above provisions, if the Contractor is responsible for the design
of the Work, the Contractor shall ensure the accuracy and completeness of the
drawings, specifications and instructions. If any discrepancies, errors, omissions or
inconsistencies are discovered in the drawings or specifications, or between the
drawings and specifications, or there are any conflicts between existing site
conditions and the requirements of the drawings and specifications, the Contractor
shall immediately call all such discrepancies to the attention of the City Contract
Representative and shall be responsible for any required corrective action.
4.2
Contractor's Supervision
4.2.1
The Contractor shall efficiently and continuously supervise and direct the Work,
using its best skill and attention. Unless the Contract specifically provides otherwise,
the Contractor shall be solely responsible for and shall exercise control over
construction means, methods, techniques and procedures and shall coordinate the
sequences of all portions of the Work.
4.2.2
The Contractor shall provide an experienced and capable superintendent/project
manager who shall be in attendance at the project site at all times during
performance of the Work and who shall be acceptable to the City Contract
Representative. The superintendent/project manager shall not be changed except
with the concurrence of the City Contract Representative, unless they cease to be in
the Contractor’s employ. The superintendent/project manager shall represent the
Contractor in their absence and all notifications given to them shall be as binding as
if given to the Contractor.
4.2.3
The Contractor agrees that it is as fully responsible to the City for the acts and
omissions of its subcontractors and of persons, either directly or indirectly employed
by the Contractor, as it is for the acts and omissions of persons directly employed
by the Contractor.
4.3
Materials and Labor; Warranty
4.3.1
Unless otherwise stipulated, the Contractor shall provide and pay for all materials,
labor, equipment, tools, construction equipment and machinery, water, gas, heat,
utilities, transportation, and other facilities and services necessary for the execution,
completion and delivery of the Work within the specified Completion Time.
4.3.2
The Contractor shall pay all applicable taxes associated with the Work.
4.3.3
The Contractor warrants to the City that all materials and equipment furnished under
the Contract will be new unless otherwise specified, and that all of the Work will be
of good quality, free from faults and defects and in conformance with the Contract.
All Work not conforming to these requirements, including substitutions not properly
approved and authorized, may be considered defective.
4.3.4
The Contractor shall furnish all materials required to complete the work, except those
specified to be furnished by the Agency. The Contractor shall receive, inventory,
store, inspect, protect, distribute, and install Agency furnished material unless
otherwise specified. The cost of handling and placing all materials after they are
delivered to the Contractor shall be considered as included in the contract price for
the item in connection with which they are used. The Contractor shall be held
responsible for all material delivered to the contractor. Deductions shall be made
from any monies due the Contractor to make good any shortages or deficiencies,
from any cause whatsoever and for any damage which may occur after such
delivery, and for any late delivery charges.
4.3.5
The Contractor will be held to furnish all work as specified in the Contract. After a
price proposal for the Work has been accepted by the City, changes of brand named,
trade named, trade marked, patented articles, or any other substitutions will be
allowed only by written order signed by the City Contract Representative. Unless
otherwise agreed to via Change Order, the City shall receive all benefits of the
difference in costs.
4.3.6
Materials not conforming to the requirements of the specifications, whether in place
or not, shall be rejected and shall be promptly removed from the site of the work,
unless otherwise directed by the City Contract Representative. No rejected material,
the defects of which have been corrected, shall be returned to the work site until
such time as approval for its use has been given by the City Contract Representative.
4.4
Construction Schedules and Submittals
4.4.1
Before commencing the Work, the Contractor shall provide the City Contract
Representative with a construction schedule for the Work, fixing the dates at which
various pre-determined events shall occur in order to promote a timely completion
of the various parts of the Work in accordance with the Contract. The schedule may
be revised from time to time as may be required by conditions of the Work, but shall
not exceed time limits, or any extensions thereof, set forth in the Contract.
4.4.2
The Contractor shall prepare and keep current for the City Contract Representative's
approval, a schedule of submittals which shall be coordinated with the Contractor's
construction schedule and allow the City Contract Representative reasonable time
to review such submittals.
4.4.3
After review, the City Contract Representative, with reasonable promptness, shall
approve these shop or setting drawings, product data, samples and sequences for
conformance with the design concept of the project, the approved construction
schedule, and other requirements of the Contract.
4.4.4
The Contractor shall make any corrections required by the City Contract
Representative and re-submit such corrected materials to the City Contract
Representative for approval. Any correction or change that will result in a design or
function change or in an increase or decrease in the Contract price must also receive
the prior approval of the City’s Director of Procurement or designee.
4.4.5
The Contractor shall perform no portion of the Work requiring submittal and review
of shop drawings, product data, samples or schedules until the respective submittals
have been approved by the City Contract Representative, and shall not deviate from
such submittals after final approval by the City Contract Representative.
4.4.6.
When re-submitting shop drawings, product data, samples or similar submittals
containing requested revisions requested by the City Contract Representative on
previous submittals, the Contractor must direct specific attention to any revisions
they have independently made in such shop drawings, product data, samples or
other submittals over and above those revisions specifically requested by the City
Contract Representative.
4.4.7
Approval by the City Contract Representative of shop drawings, product data or
other submittals shall not relieve the Contractor of responsibility for deviations from
requirements of the Contract unless the Contractor has specifically informed the City
Contract Representative in writing of such deviation at the time of submittal and the
City Contract Representative has given a written approval to the specific deviation.
The Contractor shall not be relieved of responsibility for errors or omissions in shop
drawings, product data, samples or similar submittals by the City Contract
Representative’s approval thereof.
4.4.8
As-builts documents must be provided to the City by the Contractor within in thirty
days of substantial completion. The City reserves the right to withhold final payment
until complete as-builts have been received in good order by the City Contract
Representative.
4.5
Documents and Samples at the Work Site
4.5.1
Unless otherwise directed by the City’s Contract Representative, the Contractor shall
maintain at the Work site a complete file of the drawings, specifications,
amendments, change orders and other approved modifications, in good order and
marked to reflect changes and selections made during construction, together with all
approved shop drawings, product data, samples and similar required submittals.
Such files shall be made available to the City Contract Representative and Public
Inspectors upon request.
4.6
Protection and Use of Site - (Signs, Utilities, Water, Sanitation, Traffic, etc.)
4.6.1
The City will provide land, rights-of-way and easements for all work specified in the
Contract. The Contractor shall confine their apparatus, the storage of materials and
the operations of its workmen to limits indicated by law, ordinances, permits or
directions of the City Contract Representative, and shall not unreasonably encumber
the premises with their material and equipment.
4.6.2
Contractor shall prevent any damage to pipes, sewers, computer and phone lines,
conduits or other structures, including public and/or private lawns, gardens,
shrubbery and trees encountered in the Work, and shall hold the City harmless from
damages for any injury done to such pipes, structures or property during the course
of the Work.
4.6.3
Work shall be accomplished so that there will be a minimum of traffic interruption
and inconvenience, discomfort or damage to the public. The Contractor shall
maintain sufficient barricades, flares, signs, etc., as outlined in the Traffic Control
Plan or “Street Barricading and Channelization Manual for Temporary Traffic
Control” prepared by the City’s Department of Transportation. If it becomes
necessary to close a street entirely during certain phases of the work permission
shall be obtained from the City Contract Representative and City or County Traffic
Engineer, as the location of the Work may require. Police and Fire Departments
must be notified twenty-four (24) hours in advance of the closing and opening of said
street and the Contractor must furnish and place all necessary detour signs.
4.6.4
The Contractor shall supply safe drinking water for all Contractor employees at the
Work site. Water from existing fire hydrants may be made available to the Contractor
upon his request to the City’s Water Department through the City’s Contract
Representative. In such cases where the City elects to provide hydrant water, the
Contractor will be provided a meter for the fire hydrant and will be charged the City's
current rate for all water used. A deposit for the meter will be required by the City’s
Water Department.
4.6.5
If archaeological, historical or paleontological features are encountered or
discovered during any activity related to the Work, the Contractor shall stop work
immediately at that location and shall take all reasonable steps to secure the
preservation of those features. The City Contract Representative will make
arrangements for the proper treatment of the affected portion of the Work site. The
Contractor shall not resume work in the affected portion without the prior approval of
the City Contract Representative. Extensions in the Completion time for delays
resulting from the discovery of archaeological, historical or paleontological features,
if such discovery results in a delay to the progress of the Work, may be claimed by
the Contractor in accordance with Article 10 of these General Conditions.
4.7
Cutting and Patching
4.7.1
The Contractor shall do all cutting, fitting or patching of the Work that may be required
to make its several parts come together properly and fit it to receive or be received
by work of other contractors shown upon or reasonably implied by the drawings and
specifications for the completed project.
4.7.2
The Contractor shall not endanger any work by cutting, patching, digging or
otherwise, and shall not
cut or alter the work of any other contractor except with the prior written consent of
the City Contract Representative and the other contractor.
4.7.3
Any cost incurred by reason of endangered, defective, ill fitted or ill timed work shall
be borne by the contractor responsible therefore as determined by the City Contract
Representative.
4.7.4
Each section of the specifications includes all cutting and patching for that trade
section as required for the proper accommodation of all work by other trades, unless
specifically stat6ed to the contrary. In the event that the specifications are
inadequate in this respect, the City Contract Representative shall issue needed
written clarifications.
4.8
Cleaning Up
4.8.1
The Contractor shall at all times keep the construction site and surrounding area free
from accumulations of waste material or rubbish caused by operations under the
Contract. Upon completion of the Work, the Contractor shall remove all rubbish,
tools, equipment, scaffolding and surplus materials from the site and surrounding
areas and leave the area “broom clean” or its equivalent, unless otherwise instructed
by the City Contract Representative.
4.8.2
If the Contractor fails to clean up as provided in the Contract, the City may do so and
the cost thereof shall be charged against the Contractor.
4.9
Emergencies
4.9.1
In an emergency affecting the safety of life or property, the Contractor, without
special instruction or authorization from the City Contract Representative, is hereby
permitted, authorized and directed to act at its own discretion to prevent threatened
loss or injury.
4.9.2
Except in the case of an emergency requiring immediate remedial work, any work
performed after regular working hours, on Saturdays, Sundays or legal holidays,
shall be performed without additional expense to the City unless such work has been
specifically requested and approved by the City Contract Representative.
4.9.3
The Contractor shall file with the City Contract Representative the names, addresses
and telephone numbers of their representatives who can be contacted at any time
in case of emergency. These Contractor representatives must be fully authorized
and equipped to correct unsafe or excessively inconvenient conditions on short
notice by the City or the Public Inspectors.
4.10
Permits, Fees and Notices
4.10.1
The Contractor shall, at their expense, obtain all necessary permits and licenses for
work performed under the Contract, and shall give all necessary notices required by
laws, ordinances, rules, regulations and lawful orders of public authorities pertaining
to performance of the Work, public health and safety.
4.10.2
If the Contractor knowingly performs work which is not in compliance with such laws,
ordinances, rules, regulations or orders, without such notice to the City Contract
Representative, the Contractor shall assume full responsibility for such Work and
shall bear all costs attributable thereto.
4.11
Royalties and Patents
4.11.1
The Contractor shall pay all royalties and license fees.
4.10.2
The Contractor and the surety shall defend any suit or proceeding brought against
the procuring agency, during the prosecution or after the completion of the work,
based on a claim that manufacture, sale, or use of any method, process, machine,
technique, design, living thing, genetic material, or composition of matter, or any part
thereof, furnished or used under this Contract constitutes an infringement of any
patent, trademark, or copyright, and the Contractor shall pay all damages and costs
awarded therein, against the procuring agency and any affected third party or
political subdivision. If manufacture, sale, or use of said method, process, machine,
technique, design, living thing, genetic material, or composition of matter, or any part
thereof, is in such suit held to constitute infringement and if manufacture, sale, or
use of said method, process, machine, technique, design, living thing, genetic
material, or composition of matter, or part thereof, is enjoined, the Contractor shall,
at its own expense, either procure for the procuring agency the right to continue
manufacture, sale, or use of said method, process, machine, technique, design,
living thing, genetic material, or composition of matter, or part thereof, or, subject to
Engineer's approval, replace same with noninfringing method, process, machine,
technique, design, living thing, genetic material, or composition of matter, or part, or
modify it so it becomes noninfringing.
4.11.3
If appropriate, the Contractor shall furnish the City Contract Representative
satisfactory evidence of patent licenses or patent releases covering City-specified
proprietary materials, equipment, devices or processes, as the case may be.
4.12
Protection of Persons and Property
4.12.1
The Contractor shall be responsible for initiating, maintaining, supervising and
directing all safety precautions and programs in connection with the performance of
the Contract.
4.12.2
The Contractor shall be responsible for the protection of all Work until completion
and final payment is made, including any material or equipment to be incorporated
whether in storage on or off the Work site.
4.12.3
The Contractor shall, at their own expense, replace damaged or lost material, or
repair damaged parts of the Work or of other property at the work site or adjacent
thereto, and the Contractor and their sureties shall be liable therefore.
4.12.4
The Contractor shall assume all risks from floods and casualties and shall make no
claim for damages for delay from such causes. However, a reasonable extension of
time on account of such delays may be allowed, subject to the conditions contained
in Article 6 of these General Conditions.
4.12.5
In the event the Contractor encounters on the work site material reasonably believed
to be a hazardous material, such as asbestos or polychlorinated biphenyl (PCB), the
Contractor shall immediately stop work in the area affected and report the condition
to the City Contract Representative.
4.12.6
The Contractor shall take all necessary precautions for the safety of employees on
the work site and other persons who may be affected thereby, and shall comply with
all applicable provisions of Federal, State and Municipal safety laws and building
codes to prevent accidents or injury to persons on, about or adjacent to the premises
where the Work is being performed. The Contractor shall erect and properly
maintain at all times, as required by the condition and progress of the Work, all
necessary safeguards for the protection of workmen and the public and shall post
danger signs warning against the hazards created by such features of construction
as protruding nails, hod hoists, well holes, elevator hatchways, scaffolding, window
openings, stairways and falling materials.
4.12.7
The Contractor warrants it is fully familiar and shall comply with all of the safety
requirements of the Occupational Safety and Health Act (29 U.S.C. Sections 641-
678, or as amended or recodified from time to time). Also the Hazard Communication
Act relating to the use of hazardous materials (29 C.F.R. 1910-1200, or as amended
or recodified from time to time), as promulgated by the Federal Government and as
implemented by the State of Arizona, and that it will be solely responsible for all fines
and penalties provided for by law for any violation of such Act and, furthermore, shall
require all subcontractors to comply with such Acts and with the provisions of this
section. Any claims arising out of alleged violations of such Acts are covered by the
indemnification set forth in Section 4.13.
4.13
Indemnification and Insurance
4.13.1
To the fullest extent permitted by law, Contractor, its successors, assigns and
guarantors, shall pay, defend, indemnify and hold harmless City of Tucson, its
agents, representatives, officers, directors, officials and employees from and against
all allegations, demands, proceedings, suits, actions, claims, including claims of
patent or copyright infringement, damages, losses, expenses, including but not
limited to, attorney fees, court costs, and the cost of appellate proceedings, and all
claim adjusting and handling expense, related to, arising from or out of or resulting
from any actions, acts, errors, mistakes or omissions caused in whole or part by
Contractor relating to work, services and/or products provided in the performance of
this Contract, including but not limited to, any Subcontractor or anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be
liable and any injury or damages claimed by any of Contractor’s and Subcontractor’s
employees. . If Contractor or any of Contractor’s employees are certified to receive
a premium tax credit or cost sharing reduction which triggers a §4980H (a) or (b)
penalty against the City, the Contractor shall indemnify the City from and shall pay
any assessed tax penalty. It is agreed that Contractor will be responsible for primary
loss investigation, defense and judgment costs where this indemnification is
applicable. The Contractors agrees to waive all rights of subrogation against the
City of Tucson, it's agents, representatives, officers, directors, officials, employees
and volunteers for losses arising from the work performed by the Contractor for the
City of Tucson.
4.13.2 Insurance: Contractor agrees to provide insurance as follows:
COVERAGE
LIMITS OF LIABILITY
I. Commercial General Liability:
Policy shall include Bodily Injury, Property Damage, Personal Injury and
Broad Form Contractual Liability
Each Occurrence
$1,000,000
General Aggregate Per Project
$2,000,000
Products & Completed Operations Aggregate
$2,000,000
Personal and Advertising Injury
$1,000,000
Blanket Contractual Liability
$1,000,000
II. Commercial Automobile Liability
Policy shall include Bodily Injury and Property Damage, for any owned, Hired,
and/or Non-owned vehicles used in the operation, installation and maintenance
of facilities under this agreement.
Combined Single Limit
$1,000,000
III. Workers' Compensation (applicable to the State of Arizona)*1
Per Occurrence
Statutory
Employer's Liability
$1,000,000
Disease Each Employee
$1,000,000
Disease Policy Limit
$1,000,000
IV. Professional Liability (Errors & Omissions) - In addition to I, II, III
( Licensed, registered or certified individuals expected to follow usual and customary standards
of their profession i.e., Architects, Construction Managers @ Risk, Financial Services,
Engineers, Physicians, Attorneys, Insurance Agents, Interpreters, consultants)
Each Claim
$1,000,000
Annual Aggregate
$2,000,000
Each Claim
$1,000,000
Annual Aggregate
$2,000,000
Single Loss Limit to Include theft of third party property
$1,000,000
VII. CONSTRUCTION: (in addition to I, II, & III) *2
Builder's "All Risk" Property Insurance (replacement cost basis)
Contract Value
a. Coverage to include personal property of others in the care,
custody and control of the contractor. Coverage should be written
for 100% of the completed value.
b. For additions or repairs of existing building structures, coverage
to include contractor’s interest in improvements, repairs,
additions, alterations to completed buildings and subject to items
described in “a.”
Umbrella (Excess) Liability
$4,000,000
a. Policy must follow form of the underlining General Liability Policy,
but may also cover additional risk and all insurance together for
general liability must total at least a minimum of $5,000,000. Any
form of underlying and excess policies may satisfy such
requirement.
b. Policy shall contain a waiver of subrogation endorsement in favor
of the City of Tucson, for losses arising from work performed by
or on behalf of the Contractor.
*1 Independent Contractor/Sole Proprietor designation is given to those who desire to waive their rights for worker
compensation coverage and benefits as outlined in ARS§ 23-901and specifically ARS § 23-961 (O). Please use the
Sole Proprietor/Independent form.
*2 Performance and Payment Bond standard language typically not on service contracts; however, if potential exist for
use of subcontractors to procure services—include standard language.
A. ADDITIONAL INSURANCE REQUIREMENTS: All policies shall include, or be endorsed to
include, the following provisions:
1. A waiver of subrogation endorsement in favor of the City of Tucson, for losses arising
from work performed by or on behalf of the Contractor.
2. The insurance afforded the contractor shall be primary insurance and that any
insurance carried by the City of Tucson and its agents, officials or employees shall be
excess and not contributory.
3. Coverage provided by the Contractor shall not be limited to the liability assumed
under the indemnification provisions of this Contract.
B. NOTICE OF CANCELLATION: With the exception of (10) day notice of cancellation for non-
payment of premium, any changes material to compliance with this contract in the insurance
policies above shall require (30) days written notice to the City of Tucson. Such notice shall
be sent directly to the Procurement Department and shall be sent by certified mail, return
receipt requested.
C. ACCEPTABILITY OF INSURERS: Contractors insurance shall have an “A.M. Best” rating of
not less than A-VII. The City of Tucson in no way warrants that the required minimum insurer
rating is sufficient to protect the Contractor from potential insurer insolvency.
D. VERIFICATION OF COVERAGE: Contractor shall furnish the City of Tucson with certificates
of insurance (ACORD form or equivalent approved by the City of Tucson) as required by this
Contract. The certificates for each insurance policy are to be signed by an authorized
representative.
All certificates and endorsements are to be received and approved by the City of Tucson
before work commences. Each insurance policy required by this Contract must be in effect at
or prior to commencement of work and remain in effect for the duration of the contract and
two (2) years after completion. Failure to maintain the insurance policies as required by this
Contract, or to provide evidence of renewal, is a material breach of contract.
All certificates required by this Contract shall be sent directly to the Procurement
Department. The City of Tucson project/contract number and project description shall be
noted on the certificate of insurance. The City of Tucson reserves the right to require complete
copies of all insurance policies required by this Contract at any time.
E. SUBCONTRACTORS: Contractors’ certificate(s) shall include all subcontractors as insureds
under its policies or Contractor shall furnish to the City of Tucson separate certificates and
endorsements for each subcontractor. All coverages for subcontractors shall be subject to the
minimum requirements identified above.
F. APPROVAL: Any modification or variation from the insurance requirements in this Contract
shall be made in consultation with the Procurement Contracting Officer and Risk Manager.
Such action will not require a formal Contract amendment, but may be made by administrative
action.
G. EXCEPTIONS: In the event the Contractor or sub-contractor(s) is/are a public entity, then
the Insurance Requirements shall not apply. Such public entity shall provide a Certificate of
Self-Insurance.
ARTICLE
5.
SUBCONTRACTS AND SEPARATE CONTRACTS
5.1
Subcontracts
5.1.1
The Contractor shall ensure that the subcontractors assigned to this Contract are
available throughout the term of the Contract. In the event that the Contractor
requests substitution of subcontractors, the Contractor shall obtain prior approval
from the City for subcontractor substitution. The Contractor shall ensure that
substituted subcontractors are equally qualified and capable. Information on the
qualifications of proposed substitutes shall be provided to the City for its
consideration and approval prior to substitution taking place.
5.1.2
The Contractor agrees that each subcontractor shall be bound to the Contractor by
the terms of the Contract. In the event of a conflict between the substance of a written
subcontract and the language of this Contract, the language of this Contract shall
prevail.
5.1.3
Contractor shall ensure that each subcontract shall preserve and protect the rights
of the City under the Contract with respect to the work to be performed by the
subcontractor. Where appropriate, the Contractor shall require each subcontractor
to enter into similar agreements with sub-subcontractors. In this connection, the
Contractor shall make available to each subcontractor, prior to execution of any
subcontract, copies of the Contract provisions to which the subcontractor will be
bound. Subcontractors shall also make copies of applicable portions of the Contract
available to their respective subcontractors.
5.1.4
Each subcontract will require the subcontractor to submit to the Contractor
applications for payment in such reasonable time as to enable the Contractor to
apply for payment to the City in a timely manner, including any claims for extras,
extensions of time, and damages for delays or otherwise to the Contractor in the
manner provided in the Contract for like claims by the Contractor upon the City.
5.1.5
The Contractor further agrees:
.1 To be bound to the subcontractor by all the obligations that the City assumes to
the Contractor under this Contract, and by all provisions thereof affording
remedies and redress to the Contractor from the City.
.2 To promptly pay the subcontractor in accordance with applicable State statute.
.3 That, at all times, the subcontractors’ total payments shall be proportionate to
the value of the labor and materials provided by them. Payment may be
preconditioned upon the subcontractors providing the Contractor with requested
significant partial or final lien waivers.
.4 To pay the subcontractor to such extent as may be provided by the Contract or
the subcontract, if either of these provides for earlier or larger payments than the
above.
.5 To ensure timely payment to subcontractors for their work as performed and for
materials fixed in place, less any applicable retention, despite any delay by the
City in making payments to the Contractor for any cause not the fault of the
subcontractor.
.6 To share or forward, as appropriate, with its subcontractors or, as appropriate,
with the City, any fire insurance money received by the Contractor under the
insurance provisions of the Contract.
.7 That no claim for services rendered or materials furnished by the Contractor to
the subcontractor shall be valid unless written notice thereof is given by the
Contractor to the subcontractor during the first ten (10) days of the calendar
month following that in which the claim originated.
.8 To give the subcontractor an opportunity to be present and to submit evidence
in any Contractual claim, controversy or dispute.
5.1.6
Nothing in this Article shall create any obligation on the part of the City to pay to, or
to see to the payment of, any sums to any subcontractor, except as may otherwise
be required by law.
5.1.7
Each subcontract agreement for a portion of the Work is hereby assignable by the
Contractor to the City provided that:
.1 Assignment is effective at the sole option of the City and only upon termination
of the Contract for cause pursuant to Article 9 of these General Conditions, and
only for those subcontract agreements which the City determines to accept by
notifying the subcontractor in writing, and
.2 Assignment is subject to the prior rights of the surety obligated under the Bonds
relating to the Contract.
5.2
Separate Contracts
5.2.1
The City reserves the right to perform construction or operations related to the Work
with the City's own forces and to let separate Contracts in connection with other
portions of the Work or other construction or operations on the Work site.
5.2.2
The Contractor shall afford other Contractors on the Work site reasonable
opportunity for the introduction and storage of their materials and the execution of
their work, and shall properly connect and coordinate its work with theirs.
5.2.3
The City Contract Representative shall coordinate the activities of the City's own
forces and of each separate Contractor with the work of the Contractor. The
Contractor and all other Contractors on the Work site shall be required to review their
construction schedules and cooperate with the City Contract Representative in
coordinating the various portions of the Work with the schedules of such separate
contractors.
5.2.4
If any part of the Contractor's work depends, for proper execution or results, upon
the work of any other contractor, the Contractor shall inspect and promptly report to
the City Contract Representative any defects in such work that render it unsuitable
for continuance of the Contractor's Work. Failure to inspect and report may
constitute an acceptance of the other contractor's work as fit and proper for the
reception of the Contractor's Work, except as to defects not then reasonably
discoverable.
5.2.5
Costs caused by the Contractor because of delays or by improperly timed activities
or defective construction shall be borne solely by the Contractor.
5.2.6
If the Contractor causes damage to any separate contractor on the site, the
Contractor, upon due notice, agrees to settle with such separate contractor by
agreement or arbitration, if he will so settle. If such separate contractor sues the
City on account of any damage alleged to have been so sustained, the City shall
notify the Contractor, who shall defend such proceedings and, if any judgment
against the City arises therefrom, the Contractor shall pay or satisfy it.
5.2.7
Should separate contractors on the Work cause any damage, cost or loss to the
Contractor, the City shall not be held responsible or liable therefore in any way other
than extensions of completion time in accordance with Article 6 of these General
Conditions.
ARTICLE
6.
TIME FACTORS; LIQUIDATED DAMAGES
6.1
Time
6.1.1
Unless otherwise provided in the Contract, the Completion time is the number of
calendar days, including authorized time extensions specified for completion of the
Work.
6.1.2
Completion time shall commence on the day specified in the Notice to Proceed. The
date shall not be postponed on account of the failure of the Contractor, or of any of
its subcontractors to take any action required to commence the Work.
6.1.3
The date of Substantial Completion is the date certified by the City Contract
Representative pursuant to Subsection 7.4.1 of Article 7 of these General
Conditions. It is expressly agreed that the time for completion is a reasonable time,
considering average climatic conditions and usual industrial conditions prevailing in
the Tucson area.
6.1.4
The term “day” as used in the Contract shall mean calendar day.
6.1.5
By execution of the Contract documents, the Contractor acknowledges that the time
described is a reasonable period for a competent Contractor to complete the Work.
6.1.6
The Contractor shall proceed expeditiously with adequate forces and shall achieve
Substantial Completion within the agreed upon time frame. If the Contractor is
delayed on any portion of the Work for any reason whatsoever, it shall expeditiously
proceed on other portions of the Work which are not affected by such delay.
6.2
Liquidated Damages
6.2.1
The amount of liquidated damages shall be as specified in the Contract.
6.2.2
The Contractor has been put on notice that the City shall enforce the liquidated
damages set forth in the Contract.
6.2.3
The Contractor agrees that the City will incur damages if the Contractor fails to
complete the Work within the Completion time or any approved extensions thereof
and that the liquidated damages specified in the Contract represents a fair and
equitable approximation of the City's damages.
Each calendar day that the Contractor shall fail to achieve Substantial Completion
after the calendar date agreed to for the completion of the Work provided for in the
Contract, the sum set forth in the Contract documents will be deducted from any
monies due the Contractor, not as penalty, but as liquidated damages; provided
however, that due account will be taken of any adjustments of the Completion time
for the completion of the work allowed under the Contract.
Permission allowing the Contractor to continue and finish any part of the Work
after the time fixed for its completion or after the date to which the time for
completion may have been extended shall in no way operate as a waiver on
the part of the City of any of its rights under the Contract.
Once substantial completion is granted, the Contractor shall achieve final completion
within thirty (30) calendar days, unless otherwise agreed upon. If final completion
does not occur within the agreed upon number of days, liquidated damages will
commence on the first day after the agreed days at half the specified rate, until final
completion occurs.
6.3
Delays and Time Extensions
6.3.1
It is agreed that the City's only liability for any delay from any cause shall be limited
to granting a time extension to the Contractor and that no extended general
conditions for any delay will be applicable unless agreed to by the City. There is no
other obligation, express or implied, on the part of the City to the Contractor for delay
from any cause.
6.3.2 Force Majeure
6.3.2.1
Except for payment of sums due, neither party shall be liable to the other nor deemed
in default under this Contract if and to the extent that such party's performance of
this Contract is prevented by reason of Force Majeure. The term "Force Majeure"
means a major occurrence that is beyond the control of the parties affected and
occurs without its fault or negligence. Force Majeure shall not include late
performance by a sub-contractor unless the delay arises out of a Force Majeure
occurrence in accordance with this Force Majeure term and condition.
6.3.2.2
If either party is delayed at any time in the progress of the work by Force Majeure,
the delayed party shall immediately notify the other party in writing of such delay of
the commencement thereof, and shall specify the causes of such delay in such
notice. Such notice shall be hand-delivered or mailed certified-return receipt and
shall make a specific reference to this article, thereby invoking its provisions. The
delayed party shall cause such delay to cease as soon as practicable and shall notify
the other party in writing when it has done so. The time of completion shall be
extended by contract modification for a period of time equal to the time that results
or effects of such delay prevent the delayed party from performing in accordance
with this Contract.
6.3.3
The completion time shall be extended when delay in completion of the Work by
either the Contractor or the subcontractors is due to any preference, priority or
allocation order duly issued by the Federal Government.
6.3.4
Time extensions shall only be granted for delays caused by the City, changes
authorized in accordance with Article 8 of this agreement, or delays pursuant to
sections 6.3.2 and 6.3.3.
6.3.5
Should a dispute arise between the Contractor and the City regarding a delay or time
extension, the Contractor shall continue progress on the Work until the dispute is
resolved.
ARTICLE
7.
PAYMENTS TO THE CONTRACTOR
7.1
Contract Price; Request for Payment; Schedule of Values
7.1.1
The Contract amount stated in the Contract plus or minus any authorized
adjustments is the amount payable by the City to the Contractor for performance of
the Work under the Contract.
7.1.2
During the course of construction, the Contractor shall request payment for work
actually performed during the preceding month or some other time period as
mutually agreed to, using “ESTIMATE FOR PAYMENT” forms, which are furnished
by the City or a City approved form submitted by the Contractor. Completed forms
shall be submitted to the City Contract Representative. An updated project
schedule shall accompany all requests for payment.
7.1.3
With each request for Payment, the Contractor shall submit a schedule of values,
project payrolls, invoices, receipts and any other supporting documentation required
by the Owner to substantiate payment being requested for the current time period.
7.2
Certification and Payment; Retainage; Substitute Securities
7.2.1
The City by mutual agreement may make progress payments on Contracts of less
than ninety days and shall make monthly progress payments on all other Contracts
as provided for in this paragraph. Payment to the Contractor on the basis of a duly
certified and approved estimate for payment of the work performed during the
preceding calendar month under the Contract may include payment for material and
equipment, but to ensure the proper performance of the Contract, the City shall retain
ten per cent of the amount of each estimate until final completion and acceptance of
all material, equipment and work covered by the Contract. An estimate of the work
submitted shall be deemed approved and certified for payment after seven days from
the date of submission unless before that time the City or the City’s designee
prepares and issues a specific written finding setting forth those items in detail in the
estimate of the work that are not approved for payment under the Contract. The City
may withhold an amount from the progress payment sufficient to pay the expenses
the City reasonably expects to incur in correcting the deficiency set forth in the
written finding. The progress payments shall be paid on or before fourteen days after
the estimate of the work is certified and approved. The estimate of the work shall be
deemed received by the City on submission to any person designated by the City for
the submission, review or approval of the estimate of the work.
7.2.2
When the Contract is fifty per cent complete, one-half of the amount retained
including any securities substituted under paragraph 7.2.4 shall be paid to the
Contractor on the Contractor's request provided the Contractor is making
satisfactory progress on the Contract and there is no specific cause or claim
requiring a greater amount to be retained. After the Contract is fifty per cent
complete, no more than five per cent of the amount of any subsequent progress
payments made under the Contract may be retained providing the Contractor is
making satisfactory progress on the project, except that if at any time the City
determines satisfactory progress is not being made ten per cent retention shall be
reinstated for all progress payments made under the Contract after the
determination.
7.2.3
On completion and acceptance of each separate building, public work or other
division of the Contract on which the price is stated separately in the Contract, except
as qualified in paragraph 7.2.5, payment may be made in full, including retained
percentages, less authorized deductions. In preparing estimates, the material and
equipment delivered on the site to be incorporated in the job shall be taken into
consideration in determining the estimated value by the architect, engineer or other
person, as specified in the Contract.
7.2.4
Ten per cent of all estimates shall be retained by the City as a guarantee for complete
performance of the Contract, to be paid to the Contractor within sixty days after
completion or filing notice of completion of the Contract. Retention of payments by
the City longer than sixty days after final completion and acceptance requires a
specific written finding by the City of the reasons justifying the delay in payment. The
City may not retain any monies after sixty days that are in excess of the amount
necessary to pay the expenses the City reasonably expects to incur in order to pay
or discharge the expenses determined by the City in the finding justifying the
retention of monies. In lieu of the retention provided in this section, the City, at the
option of the Contractor, shall accept as a substitute an assignment of time
certificates of deposit of banks licensed by this state, securities of or guaranteed by
the United States of America, securities of this state, securities of counties,
municipalities and school districts within this state or shares of savings and loan
institutions authorized to transact business in this state, in an amount equal to ten
per cent of all estimates that are retained by the City as a guarantee for complete
performance of the Contract. if the City accepts substitute security as described in
this paragraph for the ten per cent retention, the Contractor is entitled to receive all
interest or income earned by this security as it accrues and all such security in lieu
of retention shall be returned to the Contractor by the City within sixty days after final
completion and acceptance of all material, equipment and work covered by the
Contract if the Contractor has furnished the City satisfactory receipts for all labor and
material billed and waivers of liens from any and all persons holding claims against
the work. In no event shall the City accept a time certificate of deposit of a bank or
shares of a savings and loan institution in lieu of the retention specified unless
accompanied by a signed and acknowledged waiver of the bank or savings and loan
association of any right or power to setoff against either the City or the Contractor in
relationship to the certificates or shares assigned.
7.2.5
In any instance where the City has accepted substitute security as provided in
paragraph 7.2.4, any subcontractor undertaking to perform any part of this public
work is entitled to provide substitute security to the Contractor on terms and
conditions similar to those described in paragraph 7.2.4, and this security is in lieu
of any retention under the subcontract.
7.2.6
The Contractor shall pay to the Contractor's subcontractors or material suppliers and
each subcontractor shall pay to the subcontractor's subcontractor or material
supplier, within seven days of receipt of each progress payment, unless otherwise
agreed in writing by the parties, the respective amounts allowed the Contractor or
subcontractor on account of the work performed by the subcontractors, to the extent
of each subcontractor's interest, except that no Contract for construction services
may materially alter the rights of any Contractor, subcontractor or material supplier
to receive prompt and timely payment as provided under this section. The payments
to subcontractors or material suppliers shall be based on payments received
pursuant to this section. Any diversion by the Contractor or subcontractor of
payments received for work performed on a Contract, or failure to reasonably
account for the application or use of those payments, constitutes grounds for
disciplinary action by the Registrar of Contractors. The subcontractor or material
supplier shall notify the Registrar of Contractors and the City in writing of any
payment less than the amount or percentage approved for the class or item of work
as set forth in this section.
7.2.7
A subcontractor may notify the City in writing requesting that the subcontractor be
notified by the City in writing within five days from payment of each progress payment
made to the Contractor. The subcontractor's request remains in effect for the
duration of the subcontractor's work on the project.
7.2.8
Nothing in this section prevents the Contractor or subcontractor, at the time of
application and certification to the City or Contractor, from withholding the application
and certification to the City or Contractor for payment to the subcontractor or material
supplier for unsatisfactory job progress, defective construction work or materials not
remedied, disputed work or materials, third party claims filed or reasonable evidence
that a claim will be filed, failure of a subcontractor to make timely payments for labor,
equipment and materials, damage to the Contractor or another subcontractor,
reasonable evidence that the subcontract cannot be completed for the unpaid
balance of the subcontract sum or a reasonable amount for retention that does not
exceed the actual percentage retained by the City.
7.2.9
If any payment to a Contractor is delayed after the date due interest shall be paid at
the rate of one per cent per month or fraction of a month on the unpaid balance as
may be due.
7.2.10
If any periodic or final payment to a subcontractor is delayed by more than seven
days after receipt of the periodic or final payment by the Contractor or subcontractor,
the Contractor or subcontractor shall pay the subcontractor or material supplier
interest, beginning on the eighth day, at the rate of one per cent per month or fraction
of a month on the unpaid balance as may be due.
7.2.11
The City Contract Representative, with reasonable dispatch, will review the contents
of the ESTIMATE FOR PAYMENT submitted by the Contractor, determine the
sufficiency of the estimate, satisfy himself that the City has received full value, certify
the estimate and submit it through normal channels for payment.
7.2.12
Neither the certification nor payment made to the Contractor, nor partial or entire use
or occupancy of the Work by the City shall constitute an acceptance of any portion
of the Work.
7.3
Payment Withheld
7.3.1
If the City Contract Representative is unable to certify a request for payment in whole
or in part because, after observing the Work and the data comprising the ESTIMATE
FOR PAYMENT, the City Contract Representative determines that the Work has not
progressed or the quality of the Work is not in accordance with the Contract, the City
Contract Representative shall promptly notify the Contractor. If the City Contract
Representative and the Contractor cannot agree on a revised amount, the City
Contract Representative will promptly issue a certificate for payment in an amount
they determine is justified.
7.3.2
The City Contract Representative or other City official, as a result of subsequently
discovered evidence, may also withhold or nullify the whole or a part of any
certification to such extent as may be necessary to protect the City from loss on
account of:
.1 Defective work not remedied.
.2 Third-party claims filed or reasonable evidence indicating probable filing of such
claims.
.3 Failure of the Contractor to make payments properly to subcontractors or for
labor, materials, or equipment.
.4 Reasonable doubt that the Work can be completed for the unpaid balance of the
Contract amount, or reasonable evidence that the Work will not be completed
within the Completion time and that the unpaid balance would not be adequate
to cover actual or liquidated damages for the anticipated delay.
.5 Damage to another contractor or to the City.
.6 Damage to the real or personal property of another and failure to repair or replace
the same.
.7 Persistent failure to carry out the Work in accordance with the Contract.
7.3.3
When the grounds for withholding payment have been corrected to the satisfaction
of the City Contract Representative or other City official concerned, the City shall
proceed to process any amounts due.
7.4
Substantial Completion
7.4.1
When the Contractor considers that the Work, or a portion thereof which the City has
agreed to accept separately, is ready for its intended use, it shall notify the City
Contract Representative in writing that the Work, or the agreed upon portion thereof,
is substantially complete and request the City Contract Representative to issue a
Certificate of Substantial Completion. Within a reasonable time thereafter, the City
Contract Representative will make an inspection of the Work, or the designated
portion thereof, to determine the status of completion. If the inspection discloses
any item that is not in accordance with the Contract, the Contractor shall, before
issuance of the Certificate of Substantial Completion, complete or correct such item.
The Contractor shall then submit a request for a re-inspection by the City Contract
Representative. When the Work or designated portion thereof is determined to be
substantially complete, the City Contract Representative will prepare a Certificate of
Substantial Completion for signature of the parties, fixing therein the date of
Substantial Completion and establishing the responsibilities of the City and
Contractor, pending final payment by the City, for security, maintenance, utilities,
damage to the Work, and insurance, and shall fix the time within which the
Contractor shall finish all items on the punch list attached to the certificate.
7.4.2
Warranties required by the Contract shall commence on the date of Final Completion
for a period of two years, except where a specific provision of the Contract provides
otherwise.
7.5
Final Completion and Final Payment
7.5.1
Upon receipt of notice from the Contractor that the Work is ready for final inspection
and upon receipt of a request for final payment, the City Contract Representative will
determine that all items on the punch list have been completed or corrected and the
City will make payment reflecting adjustments in retainage, if any, for such work or
portion thereof as provided for in the Contract.
7.6
Consent of Surety/ Lien Waivers and As-Built Drawings
7.6.1
Neither the final payment nor any part of the retained percentage shall become due
until the Contractor provides to the Contract Officer a Consent of Surety Certificate
from their bonding company, or lien waivers, at the Contract Officer’s discretion and
all completed as-built drawings.
7.7
Partial Utilization
7.7.1
The City may occupy or use any portion of the Work which the City and the
Contractor agree constitutes a separately functioning and usable part of the Work
that can be used by the City without significant interference with the Contractor's
performance of the remainder of the Work. Such use or occupancy may commence
whether or not the portion is substantially complete, provided the City and the
Contractor have accepted in writing their mutual responsibilities regarding the used
portion, including but not limited to insurance coverage, maintenance and utilities.
7.7.2
Partial use or occupancy of the Work by the City shall not constitute acceptance of
Work not complying with the requirements of the Contract.
ARTICLE
8.
UNCOVERING AND CORRECTION OF WORK;
CHANGES IN THE WORK
8.1
Uncovering of Work
8.1.1
Piping, wiring, ducts, etc., shall not be covered up before proper inspection, approval
and certificates, if required, are issued. Should any work that is designated for
inspection by the City Contract Representative or the Contract before covering is
covered before such inspection, it must be uncovered by the Contractor at their
expense when examination is ordered by the City Contract Representative.
8.1.2
If a portion of the Work not designated by the City Contract Representative or the
Contract for inspection has been covered and the City Contract Representative or a
Public Inspector orders such work uncovered for inspection, the Contractor shall
immediately uncover such work. If such uncovered work is found to be in
accordance with the Contract, an appropriate Change Order shall be issued to
compensate the Contractor for the expense of uncovering and replacing the work.
If such work is found to be not in compliance with the Contract, the Contractor shall
pay such costs, unless the condition was caused by the City or a separate
Contractor.
8.1.3
The City shall not be responsible for or bear the cost of any re-examination and
replacement occasioned by defects in the work caused by subcontractors.
8.2
Correction of Work
8.2.1
Correction of Work Before Final Payment: The Contractor shall promptly remove
from the site of the Work all materials and/or associated portions of the Work
rejected by the City Contract Representative as failing to conform to the Contract,
whether incorporated or not, and the Contractor shall promptly replace and re-
execute the Work in accordance with the Contract, without expense to the City, and
shall bear the expense of making good the work of other contractors destroyed or
damaged by such removal or replacement. If the Contractor does not remove such
rejected Work and/or materials within a reasonable time, fixed by written notice, the
City may remove it and may store the materials at the expense of the Contractor. If
the Contractor does not pay the expenses of such removal within ten (10) days time
thereafter, the City may, upon ten (10) days written notice, sell such materials at
auction or private sale and credit the Contractor for the net proceeds thereof, after
deducting all the costs and expenses that should have been borne by the Contractor.
Any omission on the part of the City to condemn defective work or material at the
time of construction shall not be deemed an acceptance, and the Contractor shall be
required to correct defective work or material for which claim is made by the City at
any time before the final completion date and within two (2) years thereafter.
8.2.2
Correction of Work After Final Payment: If, within two (2) years after the date of
Substantial Completion of the Work or designated portion thereof, or within two (2)
years after acceptance by the City of designated equipment, or within such longer
period as may be prescribed by law or by the terms of any applicable special
warranty required by the Contract, any of the Work is found to be defective or not in
accordance with the Contract, the Contractor shall correct it promptly after receipt of
a written notice from the City to do so, unless the City has previously given the
Contractor a written acceptance of such condition. The City shall give notice
promptly after discovery of the condition. The two (2) year period for discovery shall
be extended as to any portion of the Work first performed after Substantial
Completion and the actual performance of the Work. The obligation contained in
this subsection shall survive acceptance of the Work under the Contract and/or
termination of the Contract. Nothing contained in this Article 8 shall be construed to
establish a period of limitations with respect to other obligations which the Contractor
might have under the Contract. Establishment of the two (2) year discovery time
period relates only to the specific obligation of the Contractor to correct the Work,
and has no relationship to the time within which proceedings may be commenced to
establish the Contractor’s liability with respect to the Contractor’s obligations other
than specifically to correct the Work.
8.2.3
Should the Contractor fail to repair such defective material and/or workmanship or
to make replacements within five (5) calendar days after written notice by the City, it
is agreed that the City may, at its sole discretion, make such repairs and
replacements and the actual cost of the required labor and materials shall be
chargeable to and payable by the Contractor or his surety.
8.3
Changes in the Work
8.3.1
The City Contract Representative may order extra work or make changes by altering,
adding to or deducting from the Work, the Contract price being adjusted accordingly
by Change Order without invalidating the Contract. All such work shall be executed
under the conditions of the original Contract except that any claim for extension of
time caused thereby shall be adjusted at the time of ordering such change.
8.3.2
If, instead of requiring corrections or removal of work not conforming to the
requirements of the contract, the work is determined to be acceptable with diminished
value in the sole judgement of the City Contract Representative, a change order shall
be issued incorporating the necessary revisions in the contract, including an
appropriate reduction in the contract price. Such a change order does not require the
signature or approval of the Contractor. Such acceptance of non-conforming work
shall not constitute a waiver of any other work required under this contract.
8.3.3
The value of any extra work or change ordered under the Contract shall be
determined in one or more of the following ways:
.1 By estimate and acceptance in a lump sum.
.2 By unit prices in the Contract or subsequently agreed upon prices.
.3 By a fixed fee.
ARTICLE
9.
SUSPENSION OR TERMINATION OF THE WORK
9.1
Suspension of the Work for Cause; City's Right to Perform the Work
9.1.1
If the Contractor fails to correct Work which is not in accordance with the Contract,
or persistently fails to carry out the Work in accordance with the Contract, the
Contract Officer, after consultation with the City Contract Representative, may order
the Contractor in writing to stop the Work, or any portion of the Work, until the cause
for such order has been eliminated.
9.1.2
If the Contractor fails to prosecute the Work properly or fails to perform any provision
of this Contract, the City may, five (5) days after written notice to the Contractor, and
without prejudice to any other remedy the City may have, make good such
deficiencies and may deduct the cost thereof from the payment then or thereafter
due the Contractor. If payments then or thereafter due the Contractor are not
sufficient to cover such amounts, the Contractor and its surety shall be liable to the
City for such deficiency.
9.2
Termination by the City for Cause
9.2.1
The City, upon certification by the City Contract Representative, without prejudice
to any other right or remedy of the City and after giving the Contractor seven (7) days
written notice, may terminate this Contract as to all or any part of the Work for any
of the following reasons:
.1 If the Contractor abandons the Work, or unnecessarily delays the Work.
.2 If the Contractor should persistently or repeatedly refuse or fail to supply enough
properly skilled workers or proper materials or competent subcontractor.
.3 If the Contractor fails to make payment to subcontractor for materials or labor in
accordance with the respective agreements between the Contractor and the
subcontractor or as expressly set forth herein.
.4 If the Contractor persistently disregards laws, ordinances, or rules, regulations
or orders of a public authority having jurisdiction, or persistently violates the
conditions or covenants of this Contract.
.5 If the Contractor should be adjudged bankrupt.
.6 If the Contractor should make a general assignment for the benefit of its
creditors, or if a receiver should be appointed on account of its insolvency.
.7 If the Contractor is otherwise in substantial breach of a provision of the Contract
as determined by the City.
9.2.2
Upon termination of the Contract for any of the above reasons, the City, subject to
any prior rights of the surety, may:
.1 Take possession of the Work and of all materials, equipment, tools, and
construction equipment and machinery at the Work site or adjacent thereto
belonging to the Contractor.
.2 Accept assignment of subcontracts pursuant to Subsection 5.1.8 of Article 5 of
these General Conditions.
.3 Finish the Work by whatever reasonable method the City may deem expedient.
In completing the Work by a new contractor or by doing the Work itself, the City
may use such equipment, materials, supplies, machinery, implements, tools and
plant of the Contractor in the City's possession and may make all necessary
repairs and replacements thereto.
9.2.3
If the City terminates the Contract for one of the reasons stated in Subsection 9.2.1,
the Contractor shall not be entitled to receive any further payment.
9.2.4
The cost of fully completing the Work provided for under any new contract shall
include the sum or sums of money to be paid by the City to other Contractors, all
costs of repairs and replacements of machinery, implements, tools and plant of the
Contractor hereunder, and also all sums of money paid for additional management
and administrative services, including but not limited to the cost of the City Contract
Representative's additional services and added expenses made necessary by the
termination of the Contract.
9.2.5
If the unpaid balance of the Contract price exceeds costs of finishing the Work, such
excess may, at the City’s discretion, be paid to the Contractor. If such costs exceed
the unpaid balance, the City may sell all materials, supplies, machinery, implements,
tools and plant of the Contractor's then on hand, at public sale, on giving the
Contractor twenty (20) days notice of the time and place of such sale, and the net
proceeds derived from the sale of said property shall be applied against such costs.
Should the amount received from the sale be insufficient to pay such deficiency, the
Contractor and its surety shall be liable to pay the amount of the deficiency.
9.3
Suspension by the City for Convenience
9.3.1
The City may, without cause, order the Contractor in writing to suspend or interrupt
the Work in whole or in part for such period of time as the City may determine
whenever such suspension or interruption would be in the best interest of the City.
9.3.2
If the City suspends the Work for convenience, an adjustment shall be made for
substantiated increases in the cost of performance of the Contract, if any, including
profit on the increased cost of performance, caused by suspension or interruption.
No adjustment shall be made to the extent:
.1 That performance is, was or would have been so suspended or interrupted by
another cause for which the Contractor is responsible, or
.2 That an equitable adjustment is made or denied by the City.
9.4
Termination by the City for Convenience
9.4.1
The performance of the Work under this Contract may be terminated by the City, in
whole or in part, in accordance with this clause whenever the City reasonably
determines that such termination is in the best interest of the City. Any such
termination shall be effected by delivery to the Contractor of a written Notice of
Termination specifying the extent to which performance of the Work is terminated,
and the date upon which such termination becomes effective.
9.4.2
If the Contract is terminated by the City as provided herein, the Contractor shall
receive compensation for any Work performed and accepted, together with profit in
proportion to the Work performed and accepted. The compensation shall include
payment for contractual obligations reasonably incurred prior to termination. No
amount shall be allowed for anticipated profit on unperformed Work.
9.4.3
In the event the City terminates the Work, in whole or in part, for cause pursuant to
Section 9.2 of this Article 9 and the termination is later deemed to be unjustified, then
such termination shall be automatically deemed a termination for convenience and
the provisions of this Section 9.4 shall apply.
9.4.4
Termination of the Contract or portion thereof by the City for convenience shall not
relieve the Contractor of their contractual responsibilities for the Work completed,
nor shall it relieve the surety of its obligation for and concerning any just claim arising
out of the Work completed.
9.5
Contractor's Right to Terminate Contract
9.5.1
The Contractor may terminate the Contract for any of the following reasons:
.1 If the Work should be stopped under an order of any court of competent
jurisdiction or other public authority for a period in excess of one (1) month
through no act or fault of the Contractor or of anyone directly or indirectly
employed by him.
.2 If the City has failed to pay the Contractor within sixty (60) days after the date
when any sum is certified for payment by the City Contract Representative, or
.3 If repeated suspensions or interruptions ordered by the City pursuant to Section
9.3 total in the aggregate more than one hundred percent (100%) of the total
number of days scheduled for completion, or one hundred twenty (120) days in
any three hundred sixty-five (365) day period, whichever is less.
9.5.2
If one of the above reasons exists, the Contractor may, upon seven (7) additional
days, written notice to the City Contract Representative, stop Work and terminate
the Contract and recover payment from the City for all Work executed and accepted
by the City and any loss sustained upon any plant or materials and reasonable profit
and damages.
ARTICLE
10
CLAIMS AND DISPUTES
10.1
City Contract Representative's Resolution of Claims and Disputes; Review by
Contract Officer
10.1.1
This Article relates to claims for additional compensation and any other differences
between the parties arising under and by virtue of the Contract. Such claims are to
be resolved at the earliest possible time and at the first responsible level so as to
increase the possibility that such matters will be resolved without the vexation of an
administrative hearing process, arbitration or litigation.
10.1.2
All claims, including but not limited to, claims relating to adjustments or
interpretations of the Contract, payments of money, or other relief with respect to the
terms of the Contract, shall be referred initially in writing to the City Contract
Representative for action. The responsibility to substantiate claims shall rest with
the party making the claim.
10.1.3
Claims by the Contractor must be made within twenty-one (21) days after the event
giving rise to the claim or within twenty-one (21) days after the claimant first becomes
aware of the condition giving rise to the claim, whichever is later.
10.1.4
Pending final resolution of a claim, the Contractor shall proceed diligently with
performance of the Contract and the City shall continue to make payments in
accordance with the Contract.
10.1.5
The City Contract Representative shall, within twenty-one (21) days of receipt of a
claim, issue one of the following:
(1) Issue a decision either rejecting or approving the claim.
(2) Suggest an equitable compromise of the claim.
(3) Provide a schedule to the Contractor indicating when they expect to be able to
take action, which shall be within a reasonable time.
10.1.6
The City Contract Representative may require the submission of additional
documentation from the Contractor to facilitate a decision.
10.1.7
The Contractor shall have ten (10) days from the date of the City Contract
Representative's final decision rejecting or approving a claim, or suggesting a
compromise, within which to accept or object to the decision. Failure of the
Contractor to accept or object to the decision in writing within such ten (10) day
period shall be deemed an acceptance of the decision. If the Contractor rejects the
decision of the City Contract Representative in writing within such ten (10) day
period, the matter shall be referred to the Contract Officer for de novo review.
10.1.8
The Contract Officer shall have sixty (60) days from receipt of a written objection by
the Contractor to the City Contract Representative’s final decision, or such longer
period as the parties may stipulate in writing, to review the matter and issue a
response in accordance with Article IX of the Tucson Procurement Code. During
such period, the Contract Officer may require such additional documentation or
testimony as deemed necessary to support his/her response.
ARTICLE
11.
MISCELLANEOUS PROVISIONS
11.1
Governing Law
11.1.1
The Contract shall be governed and construed according to the laws of the Tucson
City Code and the State of Arizona.
11.2
Written Notice
11.2.1
Written notice shall be deemed to have been duly served if delivered in person to
the individual or a member of the firm or entity or to an officer of the corporation for
which it was intended, or if delivered at or sent by registered or certified mail to the
last known business address known to the party giving notice.
11.3
Conflict of Interest
11.3.1
The City shall also have the right to terminate this Contract pursuant to the conflict-
of-interest provisions of A.R.S. Sec. 38-511 and to exercise any and all remedies
provided in such statute. The City may cancel this Contract if any person
significantly involved in negotiating, drafting, securing or obtaining this Contract for
or on behalf of the City of Tucson becomes an employee in any capacity of any other
party or a consultant to any other party with reference to the subject matter of this
Contract
JOB ORDER CONTRACT 212710-02
INSTALLATION, MAINTENANCE, REPAIR OF FIBER/COPPER
NETWORKS
APPENDIX B
CONSTRUCTION AGREEMENT
ARTICLE 12.
CONSTRUCTION SERVICES AGREEMENT
12.1
Project and Contract Price
12.1.1
Contract Name:
JOC FOR INSTALLATION, MAINTENANCE, REPAIR OF
FIBER/COPPER NETWORK
Contract Number:
212710
12.1.2
Pricing: See Appendix F
12.2
Contract Time:
12.2.1
Notice to Proceed: It is agreed that the City Representative will issue the Notice
To Proceed with the Work to be performed under this Contract within twenty (20)
consecutive calendar days after the date of execution of this Agreement, except
in job order contracts where a separate Notice to Proceed will be issued for each
individual job order.
12. 2.2
Completion Time The Contractor agrees that the Work shall be prosecuted
promptly, regularly, diligently and uninterruptedly at such rate of progress as will
insure full completion thereof within the time specified. It is expressly agreed that
the time for completion is a reasonable time, considering average climatic
conditions and usual industrial conditions prevailing in the Tucson area.
12.2.3
Liquidated Damages. Completion times will be specified in the Notice to Proceed.
Applicable liquidated damages shall be assessed for each day the Work remains
incomplete after the scheduled completion date. This amount is agreed upon
because of the impracticability and extreme difficulty of ascertaining the actual
damages the City will sustain on account of late completion.
12.3
Miscellaneous
12.3.1
Guarantee. The Contractor shall guarantee all Work under this Agreement
against defects of material and Workmanship for a minimum of two years from
the date of Final Completion.
12.3.2
Assignment. Neither party to this Contract shall assign the Contract as a whole
without the written consent of the other, nor shall the Contractor assign any
monies due or to become due to him hereunder without the previous written
consent of the City.
12.3.3
Contract Documents. The following listed documents constitute the Contract
Documents and they are all as fully a part of this Contract as if repeated herein:
1. Any and all Amendments.
2. The Contract, including this Agreement.
3. Construction Specifications, including all standard, special, technical and
supplementary specifications included herein.
4. The approved Drawings.
5. SBE Plan if Applicable
6.
Bonds
7.
Insurance
12.3.4
Precedence. In the event of any inconsistency between any of the terms of the
documents enumerated above, such inconsistency shall be resolved by giving
precedent to the terms of the above documents in the order listed. Anything in
these Contract Documents to the contrary notwithstanding, the provisions of all
pertinent general public laws of the State of Arizona in effect at the time of the
execution of this Contract shall be a part of the Contract between the parties and
shall take precedence over all of the other Contract Documents.
IN WITNESS THEREOF, the parties hereto have executed three (3) identical counterpart copies
of this Agreement on the date and year first written above, each of which copies shall for all
purposes be deemed an original hereof.
City of Tucson, A Municipal Corporation
___________________________________
By:
Contractor
As Procurement Director, or his/her designee,
and Not Personally
By:
Title:
APPROVED AS TO FORM this
day of
, 20____.
As City Attorney and not personally
NOTE: The Contract Representative is
City of Tucson
Sturgeon Electric Company, Inc.
Operations Manager
Jesse Towle
Digitally signed by Jesse Towle
DN: C=US, E=JTowle@myrgroup.com,
O="Sturgeon Electric Company, Inc.",
OU=Operations Manager / Tucson
Business Unit, CN=Jesse Towle
Date: 2022.03.29 13:41:12-07'00'
4th
April
22
JOB ORDER CONTRACT 212710-02
INSTALLATION, MAINTENANCE, REPAIR OF FIBER/COPPER
NETWORKS
APPENDIX C
FTA TERMS AND CONDITIONS
FEDERAL TRANSIT ADMINISTRATION
TERMS, CONDITIONS, AND CERTIFICATIONS
FEDERAL TRANSIT ADMINISTRATION
TERMS, CONDITIONS AND CERTIFICATIONS
Requirements/Conditions For All FTA Assisted Contracts:
Federal Disclaimer to Third Parties
Program Fraud and False or Fraudulent Statements and Related Acts
Access to Third Party Contract Records
Prohibitions Against Exclusionary or Discriminatory Specifications
Changes to Federal Requirements
Termination Provisons (Contracts exceeding $10,000)
Civil Rights Requirements
Requirements for Disadvantaged Business Enterprises (DBEs)
Incorporation of FTA Terms
Requirements for Contracts Exceeding $25,000 Threshold:
Debarment and Suspension Requirements
Requirements for Contracts Exceeding Small Purchase Threshold ($100,000):
Report, record retention, and access provisions
Buy America requirements
Provisions For Resolution Of Disputes, Breaches, Defaults Or Other Litigation
Lobbying Requirements
Bonding Requirements for Construction Activities; (may be imposed for nonconstruction
activities)
Clean Water Requirements
Clean Air Requirements
Cargo Preference
Acquisition of Property Shipped by Ocean Vessel
Acquisition of Property Shipped by Air (Fly America)
Construction Activities:
Equal Employment Opportunity (Except for supplies/raw materials)
Construction Employee Protection Requirements: (except for contracts < $2,000, or for
supplies/raw materials)
Davis Bacon Act (for contracts exceeding $2,000)
Contract Work Hours & Safety Standards Act (contracts exceeding $100,000)
Copeland Anti-Kickback Act (for all construction contracts)
Siesmic Safety (for new buildings/additions only)
Non Construction Activities
Non Construction Employee Protection Requirements (Except for supplies/raw materials) (for
all turnkey, rolling stock and operiational contracts (excluding transportation services) in
excess of $100,000
Transit Operations
Transit Employee Protective Arrangements
Charter Service Operation
School Bus Operations
Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations
Planning, Research, Development and Demonstration Projects
Patent Rights Requirements
Rights in data and copyrights requirements
Turnkey and Other Acquisitions Made by a Third Party Contractor Assuming
the Role of the City of Tucson
Bus Testing
Pre-Award and Post-Delivery Audit Requirements
Miscellaneous Special Requirements
Environmental Protection
Energy Conservation Requirements
Metric System Requirements
National ITS Architecture
Requirements for Recycled Products (for items designated by EPA)
Seat Belt Use
Text Messaging While Driving
Federal Davis-Bacon Wage Rates
(If Applicable)
Certifications
Buy America
Transit Vehicle Manufacturer’s DBE Certification
Lobbying
Bus Testing Requirements
Protest Procedures For Federal Transit Administration Funded Projects
City Of Tucson Protest Procedures For Federal Transit Administration (FTA) Funded Projects
Requirements/Conditions For All FTA Assisted Contracts
This Contract is Subject to Federal Financial Assistance/Application of Provisions and Clauses
This contract is funded in part by grants from the Federal Transit Administration (FTA) of the United States Department of
Transportation. The award of any contract is subject to the requirements of financial assistance contracts between the
City of Tucson and the U.S. Department of Transportation.
The Contractor is required to comply with all terms and conditions prescribed for third-party contracts by the U.S.
Department of Transportation, Federal Transit Administration (FTA). If FTA requires any change to this Contract to
comply with its requirements, both parties agree to amend the Contract as required by FTA. If such changes cause an
increase or decrease in the work to be performed by the Contractor or the time for such performance, then the
compensation to be paid the Contractor and time of performance shall be equitably adjusted.
The required contract clauses, which are identified below as applicable to this solicitation, will be incorporated by
reference in any contract resulting from this solicitation issued by the City Of Tucson. These solicitation provisions and
required contract clauses are in addition to other General Specifications, Special and Technical Specifications, Bidding or
Proposal Procedures, and Bid or Proposal Forms set forth in other sections of this solicitation which may also be
incorporated by reference in any resulting contract. If there is any discrepancy in the language between this document
and the General Specifications, Special and Technical Specifications, Bidding or Proposal Procedures and Bid or
Proposal Forms set forth in other sections of this solicitation, the stricter of two shall govern.
Some provisions and clauses require the bidder/proposer to execute and submit certain required certifications with the
bid or proposal, which are included herein. Failure to execute and submit required certifications with the bid or proposal
documents may render a bid or proposal non-responsive.
Federal Disclaimer to Third Parties
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.
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
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, the Contractor certifies or affirms
the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made,
pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In
addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes
to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government
reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to
the extent the Federal Government deems appropriate.
2.
The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim,
statement, submission, or certification to the Federal Government under a contract connected with a project that is
financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 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.
Access to Third Party Contract Records (Form FTA Master Agreement MA (18) dated October 1, 2011)
All contractors and third party subcontractors at each tier to provide to the U.S. Secretary of Transportation and the
Comptroller General of the United States or their duly authorized representatives, access to all third party contract
records as required by 49 U.S.C. § 5325(g). All contractors further agree to require its third party contractors and
third party subcontractors, at each tier, to provide sufficient access to third party procurement records as needed for
compliance with Federal laws and regulations or to assure proper Project management as determined by FTA.
Prohibitions Against Exclusionary or Discriminatory Specifications – 49 U.S.C. § 5323(h)(2)
1.
Apart from inconsistent requirements imposed by Federal laws or regulations, the City of Tucson agrees that it will
comply with 49 U.S.C. § 5325 (h) by not expending or otherwise using any Federal assistance FTA has made
available for the Project to support a procurement using exclusionary or discriminatory specifications.
Changes to Federal Requirements - 49 CFR Part 18
1.
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 (18) dated
October, 2011 between the City of Tucson 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. All standards or limits set forth in this Contract to be observed in the performance of the work are
minimum requirements, unless modified by the FTA.
Termination Provisions - 49 U.S.C.Part 18, FTA Circular 4220.1F
1.
Termination for Convenience (General Provision): The City Of Tucson 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 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 Of Tucson to be paid the
Contractor. If the Contractor has any property in its possession belonging to the City Of Tucson, the Contractor will
account for the same, and dispose of it in the manner the City Of Tucson directs.
2.
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 Tucson may terminate this contract for default. Termination shall be effected by serving a notice of
termination on the contractor setting forth the manner in which the Contractor is in default. The contractor will only
be paid the contract price for supplies delivered and accepted, or services performed in accordance with the
manner of performance set forth in the contract.
If it is later determined by the City Of Tucson 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
Tucson, 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.
3.
Opportunity to Cure (General Provision): The City Of Tucson in its sole discretion may, in the case of a
termination for breach or default, allow the Contractor 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 Of Tucson’s satisfaction the breach or default or any of the terms,
covenants, or conditions of this Contract after receipt of written notice from the City of Tucson setting forth the
nature of said breach or default, the City of Tucson 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 the City
of Tucson from also pursuing all available remedies against Contractor and its sureties for said breach or default.
4.
Waiver of Remedies for any Breach: In the event that the City of Tucson elects to waive its remedies for any
breach by Contractor of any covenant, term or condition of this Contract, such waiver by the City of Tucson shall
not limit the City of Tucson's remedies for any succeeding breach of that or of any other term, covenant, or
condition of this Contract.
5.
Termination for Convenience (Professional or Transit Service Contracts): The City of Tucson, 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 City of Tucson shall be liable only for payment under the payment provisions of this contract for
services rendered before the effective date of termination.
6.
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 Tucson may terminate this contract for default. The City of Tucson 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 City of Tucson.
7.
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 Tucson may terminate this contract
for default. The City of Tucson 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 Tucson, protect and preserve the goods until surrendered to the City of Tucson or its agent.
The Contractor and the City of Tucson 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 Tucson.
8.
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 Tucson may terminate this contract for default. The City of Tucson shall terminate by
delivering to the Contractor a Notice of Termination specifying the nature of the default. In this event, the City of
Tucson 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 City of Tucson 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 of Tucson in completing the work.
The Contractor's right to proceed shall not be terminated nor the Contractor charged with damages under this
clause if-
a.
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 of Tucson,
acts of another Contractor in the performance of a contract with the City of Tucson, epidemics, quarantine
restrictions, strikes, freight embargoes; and
b.
the contractor, within ten [10] days from the beginning of any delay, notifies the City of Tucson in writing of
the causes of delay. If in the judgment of the City of Tucson, the delay is excusable, the time for completing
the work shall be extended. The judgment of the City of Tucson 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 of Tucson.
9.
Termination for Convenience or Default (Architect and Engineering): The City of Tucson may terminate this
contract in whole or in part, for the City of Tucson's convenience or because of the failure of the Contractor to fulfill
the contract obligations. The City of Tucson 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 City of Tucson, 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 City of Tucson may complete
the work by contact or otherwise and the Contractor shall be liable for any additional cost incurred by the City of
Tucson.
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 Tucson.
10.
Termination for Convenience or Default (Cost-Type Contracts): The City of Tucson 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 Tucson 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 Tucson, or property supplied to the Contractor by the City of Tucson. If the termination is for default, the City of
Tucson 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 Tucson and the parties shall negotiate the termination settlement to be paid the Contractor.
If the termination is for the convenience of the City of Tucson, the Contractor shall be paid its contract close-out
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 Tucson 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 Tucson, after setting up a new work schedule, may allow the Contractor to
continue work, or treat the termination as a termination for convenience.
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 et seq.
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. 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 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
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. Age - 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.
c. 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, modified only if necessary to identify the affected
parties.
Requirements for Disadvantaged Business Enterprises (DBE’s) - 49 CFR Part 26
1.
The Federal Fiscal Year goal has been set by the City Of Tucson in an attempt to match projected
procurements with available qualified disadvantaged businesses. The City Of Tucson goals for
budgeted service contracts, bus parts, and other material and supplies for Disadvantaged Business
Enterprises have been established by the City Of Tucson as set forth by the Department of
Transportation Regulations 49 C.F.R. Part 26, March 31, 1980, and amended by Section 106(c) of the
Surface Transportation Assistance Act of 1987, and is considered pertinent to any contract resulting
from this request for proposal.
If a specific DBE goal is assigned to this contract, it will be clearly stated in the Legal Documents and
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 Of Tucson may declare the Contractor
noncompliant and in breach of contract. If a goal is not stated in the Special Specifications, it will be
understood that no specific goal is assigned to this contract.
a.
Policy - It is the policy of the Department of Transportation and the City Of Tucson 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 financed in whole or in
part with federal funds under this Agreement. Consequently, the DBE requirements of 49 CFR
Part 26 and Section 106(c) of the STURAA of 1987, apply to this Contract.
The Contractor agrees to ensure that DBEs as defined in 49 CFR Part 26 and Section 106(c) of
the STURAA of 1987 have the maximum opportunity to participate in the whole or in part with
federal funds provided under this 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. Failure by the contractor to carry out these
requirements is a material breach of this contract, which may result in the termination of this
contract or any such other remedy as the recipient deems appropriate.
It is further the policy of the City Of Tucson to promote the development and increase the
participation of businesses owned and controlled by disadvantaged. DBE involvement in all
phases of the City Of Tucson procurement activities are encouraged.
b.
DBE obligation - 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 Agreement. In that
regard, all 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 and 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 Tucson may declare the contractor
noncompliant and in breach of contract.
d.
The Contractor will keep records and documents for a reasonable time following performance of
this contract to indicate compliance with the City Of Tucson DBE program. These records and
documents will be made available at reasonable times and places for inspection by any
authorized representative of the City Of Tucson and will be submitted to the City Of Tucson upon
request.
e.
The City Of Tucson 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:
a.
Disadvantaged business "means a small business concern":
i.
Which is at least 51 percent owned by one or more socially and economically
disadvantaged individuals, or, in the case of any publicly owned business, at least 51
percent of the stock of which is owned by one or more socially and economically
disadvantaged individuals; and
ii.
Whose management and daily business operations are controlled by one or more of the
socially and economically disadvantaged individuals who own it.
or
iii.
Which is at least 51 percent owned by one or more women individuals, or in the case of
any publicly owned business, at least 51% of the stock of which is owned by one or more
women individuals; and
iv.
Whose management and daily business operations are controlled by one or more women
individuals who own it.
b.
"Small business concern" means a small business as defined by Section 3 of the Small Business
Act and Appendix B - (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 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 Northern Marianas;
v.
"Asian-Indian Americans", which includes persons whose origins are from India, Pakistan,
and Bangladesh.
3.
Prime contractors are required to pay subcontractors for satisfactory performance of their contracts
no later than 30 days from receipt of each payment made by the City of Tucson to the prime
contractor. If applicable, the Prime contractor is to pay all retainage owed to the DBE
subcontractor within 30 days of satisfactory completion of the contracted work. For the purposes
of this section, a subcontractor's work is satisfactorily completed when all the tasks called for in the
subcontract have been accomplished and documented by the prime contractor as required by the
City of Tucson. The City of Tucson will continue to hold full retainage as provided for under the
Arizona Revised Statutes. Prime contractors must provide notice to DBE firms that complaints of
violations of the prompt payment provision may be submitted in writing to the City of Tucson Office
of Equal Opportunity Programs Director, 201 N. Stone Ave., 3rd Floor NW, Tucson Arizona 85701.
The complaint shall set forth the facts and identify the prime contractor and the project.
Incorporation Of Federal Transit Administration (FTA) Terms - FTA Circular 4220.1F
Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions include, in part,
certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding
contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1F, are
hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms
shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The
Contractor shall not perform any act, fail to perform any act, or refuse to comply with any of the City Of
Tucson’s requests which would cause the City Of Tucson to be in violation of the FTA terms and conditions.
Requirements for Contracts Exceeding $25,000
Debarment and Suspension Requirements - 49 CFR Part 29, Executive Order 12549
Debarment, Suspension, and Other Responsibility Matters - (Third Party Contracts over $25,000).
The Recipient agrees to comply, and assures the compliance of each subrecipient, lessee, third party contractor, or
other participant at any tier of the Project, with Executive Orders Nos. 12549 and 12689, “Debarment and
Suspension,” 31 U.S.C. § 6101 note, and U.S. DOT regulations, “Nonprocurement Suspension and Debarment,” 2
C.F.R. Part 1200, which adopts and supplements the provisions of U.S. Office of Management FTA Master
Agreement MA(16), 10-1-2009 17 and Budget (U.S. OMB) “Guidelines to Agencies on Governmentwide Debarment
and Suspension (Nonprocurement),” 2 C.F.R. Part 180. The Recipient agrees to, and assures that its subrecipients,
lessees, third party contractors, and other participants at any tier of the Project will, review the “Excluded Parties
Listing System” at http://epls.gov/ before entering into any subagreement, lease, third party contract, or other
arrangement in connection with the Project.
Requirements for Contracts Exceeding $100,000
Access To Records And Reports - 49 U.S.C. 5325, 18 CFR 18.36 (i), 49 CFR 633.17
Record Retention
During the course of the Project and for three years thereafter from the date of transmission of the final expenditure
report, the Recipient agrees to maintain intact and readily accessible all data, documents, reports, records,
subagreements, leases, third party contracts, and supporting materials related to the Project as the Federal
Government may require.
Access to Records of Recipients and Subrecipients
The Recipient agrees to permit, and require its subrecipients to permit, the U.S. Secretary of Transportation, the
Comptroller General of the United States, and, to the extent appropriate, the State, or their authorized
representatives, upon their request to inspect all Project work, materials, payrolls, and other data, and to audit the
books, records, and accounts of the Recipient and its subrecipients pertaining to the Project, as required by 49
U.S.C. § 5325(g), 18 CFR 18.36(i), 49 CFR 633.17
Buy America Requirements - 49 U.S.C. 5323(j), 49 CFR Part 661
Buy America Provision: Steel and Manufactured Products Other than Buses, Rolling Stock and Associated
Equipment
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 (see Certification section)
with all bids on FTA-funded contracts, of $100,000 and above, except those subject to a general waiver. Bids or offers
that are not accompanied by a completed Buy America certification must be rejected as nonresponsive. This requirement
does not apply to lower tier subcontractors.
Provisions For Resolution Of Disputes, Breaches, Defaults Or Other Litigation - 49 CFR Part 18, FTA
Circular 4220.1F
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 the City Of Tucson. 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
authorized representative of the City Of Tucson. 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 authorized representative of
the City Of Tucson shall be binding upon the Contractor and the Contractor shall abide be the decision.
Performance During Dispute
Unless otherwise directed by the City Of Tucson, 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 Tucson 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 Tucson 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 Tucson, Architect or Contractor shall constitute a waiver of any right or duty
afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or
acquiescence in any breach thereunder, except as may be specifically agreed in writing.
Lobbying Requirements - 31 U.S.C. 1352, 49 CFR Part 19, 49 CFR Part 20
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 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, grant or award covered by 31 U.S.C. 1352. Such disclosures are
forwarded from tier to tier up to the City Of Tucson.
Bonding Requirements for Construction Activities; may be imposed for non-construction activities
Refer to the Special Terms & Conditions of this Solicitation for
Bid Bond Requirements (Construction )
Performance and Payment Bonding Requirements (Construction)
Performance and Payment Bonding Requirements (Non-Construction)
Advance Payment Bonding Requirements
Patent Infringement Bonding Requirements (Patent Indemnity)
Warranty of the Work and Maintenance Bonds
Clean Water Requirements - 33 U.S.C. 1251
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
Clean Air Requirements - 42 U.S.C. 7401 et seq., 40 CFR 15.61, 49 CFR Part 18
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 agrees to include these requirements in each subcontract exceeding $100,000 financed in
whole or in part with Federal assistance provided by FTA
Requirements for Recycled Products - 42 U.S.C. 6962, 40 CFR Part 247, Executive Order 12873
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 Subpart B of 40 CFR Part 247.
Cargo Preference
Cargo Preference - 46 U.S.C. 1241, 46 CFR Part 381
Acquisition of Property Shipped by Ocean Vessel:
Pursuant to 46 C.F.R. Part 381, the following clauses must be inserted in all contracts under which equipment, materials
or commodities may be transported by ocean vessel in carrying out the Project.
The contractor agrees to:
a. 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. 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. 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.
Acquisition of Property Shipped by Air (Fly America):
Fly America Requirements - The Contractor agrees to comply with 49 U.S.C. 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.
Construction Activities
Equal Employment Opportunity (Does not apply for supplies/raw materials procurements)
Equal Employment Opportunity
All construction contracts in excess of $10,000 by grantees and their contractors or subgrantees shall contain a provision
requiring compliance with Executive Order 11246, entitled "Equal Employment Opportunity", as amended by Executive
Order 11375, and as supplemented in Department of Labor regulations (41 C.F.R. Part 60). The following clauses shall
be included:
Nondiscrimination
During the performance of this contract, the contractor agrees as follows:
a.
The contractor will not discriminate against any employee or applicant for employment because of race,
color, religion, sex, disability, or national origin. The contractor will take affirmative action to ensure that
applicants are employed, and that employees are treated during employment without regard to their race,
color, religion, sex, disability, or national origin. Such action shall include but not be limited to the following:
employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination;
rates of pay or other forms of compensation; and selection for training, including apprenticeship. The
contractor agrees to post in conspicuous places, available to employees and applicants for employment,
notices to be provided setting forth the provisions of this nondiscrimination clause.
b.
The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the
contractor, state that all qualified applicants will receive consideration for employment without regard to
race, color, religion, sex, disability, or national origin.
c.
The contractor will send to each labor union or representative of workers with which it has a collective
bargaining agreement or other contract or understanding, a notice to be provided advising the labor union
or workers' representative of the contractor's commitments under Section 202 of Executive Order 11246 of
September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and
applicants for employment.
d.
The contractor will comply with all provisions of Executive Order No. 11246 of September 24, 1965, and of
the rules, regulations, and relevant orders of the Secretary of Labor.
e.
The contractor will furnish all information and reports required by Executive Order No. 11246 of September
24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will
permit access to his books, records, and accounts by the Secretary of Labor and the FTA for purposes of
investigation to ascertain compliance with such rules, regulations, and orders.
f.
In the event of the contractor's noncompliance with the nondiscrimination clauses of this agreement or with
any of such rules, regulations or orders, this agreement may be cancelled, terminated, or suspended in
whole or in part and the contractor may be declared ineligible for further Federal or Federally assisted
contracts in accordance with procedures authorized in Executive No. Order 11246 of September 24, 1965,
and such other sanctions may be imposed and remedies invoked as provided in Executive Order No.
11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise
provided by law.
g.
The contractor will include the provisions of paragraphs (a) through (g) of this subsection in every
subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor
issued pursuant to Section 204 of Executive Order No. 11246 of September 24, 1965, so that such
provisions shall be binding upon each subcontractor or vendor. The contractor will take such action with
respect to any subcontract or purchase order as the Secretary of Labor or the FTA may direct as a means
of enforcing such provisions, including sanctions for noncompliance; provided, however, that if a contractor
becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such
direction, the contractor may request the United States to enter into such litigation to protect the interests of
the United States."
Specifications
The following clauses must also be included in all construction contracts and subcontracts over $10,000, in
geographical areas designated pursuant to 41 C.F.R. 60-4.3:
"Standard Federal Equal Employment Opportunity Construction Contract Specifications (Executive Order No.
11246):
1.
As used in these specifications:
a.
"Covered Area" means the geographical area described in the solicitation from which this contract
resulted;
b.
"Director" means Director, Office of Federal Contract Compliance Programs, United States
Department of Labor, or any person to whom the Director delegates authority;
c.
"Employer Identification Number" means the federal social security number used on the employer's
quarterly federal tax return, U.S. Treasury Department Form 941.
d.
"Minority" includes:
i.
Black (all persons having origins in any of the black African racial groups not of Hispanic
origin);
ii.
Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American, or other
Spanish culture or origin, regardless of race);
iii.
Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far
East, Southeast Asia, the Indian subcontinent, or the Pacific Islands); and
iv.
American Indian or Alaskan Native (all persons having origins in any of the original peoples of
North America and maintaining identifiable tribal affiliations through membership and
participation or community identification).
2.
Whenever the contractor, or any subcontractor at any tier, subcontracts a portion of the work involving
any construction trade, it shall physically include in each subcontract in excess of $10,000 the provisions
of these specifications and the notice which contains the applicable goals for minority and female
participation and which is set forth in the solicitations from which this contract resulted.
3.
If the contractor is participating (pursuant to 41 C.F.R. 60-4.5) in a hometown plan approved by the U.S.
Department of Labor in the covered area, either individually or through an association, its affirmative
action obligations on all work in the plan area (including goals and timetables) shall be in accordance
with that plan for those trades which have unions participating in the plan. Contractors must be able to
demonstrate their participation in and compliance with the provisions of any such hometown plan. Each
contractor or subcontractor participating in an approved plan is individually required to comply with its
obligations under the EEO clause, and to make a good faith effort to achieve each goal under the plan in
each trade in which it has employees. The overall good faith performance by other contractors or
subcontractors toward a goal in an approved plan does not excuse any covered contractor's or
subcontractor's failure to make good faith efforts to achieve the plan goals and timetables.
4.
The contractor shall implement the specific affirmative action standards provided in paragraphs (7)(a)
through (p) of these specifications. The goals set forth in the solicitation from which this contract
resulted are expressed as percentages of the total hours of employment and training of minority and
female utilization the contractor should reasonably be able to achieve in each construction trade in
which it has employees in the covered area. Covered construction contractors performing construction
work in geographical areas where they do not have a Federal or Federally assisted construction contract
shall apply the minority and female goals established for the geographical area where the work is being
performed. Goals are published periodically in the Federal Register in notice form, and such notices
may be obtained from any Federal Contract Compliance Program Office or from Federal Procurement
Contracting Officers. The contractor is expected to make substantially uniform progress toward its goal
in each craft during the period specified.
5.
Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom the
contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the
contractor's obligations under these specifications, Executive Order No. 11246, or the regulations
promulgated pursuant thereto.
6.
In order for the nonworking training hours of apprentices and trainees to be counted in meeting the
goals, such apprentices and trainees must be employed by the contractor during the training period, and
the contractor must have made a commitment to employ the apprentices and trainees at the completion
of their training, subject to the availability of employment opportunities. Trainees must be trained
pursuant to training programs approved by the U. S. Department of Labor.
7.
The contractor shall take specific affirmative actions to ensure equal employment opportunity. The
evaluation of the contractor's compliance with these specifications shall be based upon its effort to
achieve maximum results from its actions. The contractor shall document these efforts fully, and shall
implement affirmative action steps at least as extensive as the following:
a.
Ensure and maintain a working environment free of harassment, intimidation, and coercion at all
sites, and in all facilities at which the contractor's employees are assigned to work. The
contractor, where possible, will assign two or more women to each construction project. The
contractor shall specifically ensure that all foremen, superintendents, and other on-site
supervisory personnel are aware of and carry out the contractor's obligation to maintain such a
working environment, with specific attention to minority or female individuals working at such
sites or in such facilities.
b.
Establish and maintain a current list of minority and female recruitment sources, provide written
notice to minority and female recruitment sources and to community organizations when the
contractor or its unions have employment opportunities available, and maintain a record of the
organizations' responses.
c.
Maintain a current file of the names, addresses, and telephone numbers of each minority and
female off-the-street applicant and minority or female referral from a union, a recruitment source
or community organization and of what action was taken with respect to each such individual. If
such individual was sent to the union hiring hall for referral and was not referred back to the
contractor by the union or, if referred, not employed by the contractor, this shall be documented
in the file with the reason therefor, along with whatever additional actions the contractor may
have taken.
d.
Provide immediate written notification to the Director when the union or unions with which the
contractor has a collective bargaining agreement has not referred to the contractor a minority
person or woman sent by the contractor, or when the contractor has other information that the
union referral process has impeded the contractor's efforts to meet its obligations.
e.
Develop on-the-job training opportunities and/or participate in training programs for the area
which expressly include minorities and women, including upgrading programs and
apprenticeship and trainee programs relevant to the contractor's employment needs, especially
those programs funded or approved by the Department of Labor. The contractor shall provide
notice of these programs to the sources compiled under (7)(b) above.
f.
Disseminate the contractor's EEO policy by providing notice of the policy to unions and training
programs and requesting their cooperation in assisting the contractor in meeting its EEO
obligations; by including it in any policy manual and collective bargaining agreement; by
publicizing it in the company newspaper, annual report, etc.; by specific review of the policy with
all management personnel and with all minority and female employees at least once a year; and
by posting the company EEO policy on bulletin boards accessible to all employees at each
location where construction work is performed.
g.
Review, at least annually, the company's EEO policy and affirmative action obligations under
these specifications with all employees having responsibility for hiring, assignment, layoff,
termination or other employment decisions including specific review of these items with on-site
supervisory personnel such as superintendents, general foreman, etc., prior to the initiation of
construction work at any job site. A written record shall be made and maintained identifying the
time and place of these meetings, persons attending, subject matter discussed, and disposition
of the subject matter.
h.
Disseminate the contractor's EEO policy externally by including it in any advertising in the news
media, specifically including minority and female news media, and providing written notification
to and discussing the contractor's EEO policy with other contractors and subcontractors with
whom the contractor does or anticipates doing business.
i.
Direct recruitment efforts, both oral and written, to minority, female, and community
organizations, to schools with minority and female students and to minority and female
recruitment and training organizations serving the contractor's recruitment area and
employment needs. Not later than one month prior to the date for the acceptance of
applications for apprenticeship or other training by any recruitment source, the contractor shall
send written notice to organizations such as the above, describing the openings, screening
procedures, and tests to be used in the selection process.
j.
Encourage present minority and female employees to recruit other minority persons and women
and, where reasonable, provide after school, summer and vacation employment to minority and
female youth, both on the site and in other areas of the contractor's work force.
k.
Validate all tests and other selection requirements where there is an obligation to do so under
41 C.F.R. Part 60-3.
l.
Conduct, at least annually, an inventory and evaluation at least of all minority and female
personnel for promotional opportunities and encourage these employees to seek or to prepare
for, through appropriate training, etc., such opportunities.
m.
Ensure that seniority practices, job classifications, work assignments, and other personnel
practices do not have a discriminatory effect by continually monitoring all personnel and
employment related activities to ensure that the EEO policy and the contractor's obligations
under these specifications are being carried out.
n.
Ensure that all facilities and company activities are nonsegregated except that separate or
single-user toilet and necessary changing facilities shall be provided to assure privacy between
sexes.
o.
Document and maintain a record of all solicitations of offers for subcontracts from minority and
female construction contractors and suppliers, including circulation of solicitations to minority
and female contractor associations and other business associations.
p.
Conduct a review, at least annually, of all supervisors' adherence to and performance under the
contractor's EEO policies and affirmative action obligations.
8.
Contractors are encouraged to participate in voluntary associations that assist in fulfilling one or more of
their affirmative action obligations set forth in paragraphs (7)(a) through (p). The efforts of a contractor
association, joint contractor-union, contractor-community, or other similar group of which the contractor
is a member and participant, may be asserted as fulfilling any one or more of its obligations under
paragraphs (7)(a) through (p) of these specifications, provided that the contractor actively participates in
the group, makes every effort to assure that the group has a positive impact on the employment of
minorities and women in the industry, ensures that the concrete benefits of the program are reflected in
the contractor's minority and female work force participation, makes a good faith effort to meet its
individual goals and timetables, and can provide access to documentation that demonstrates the
effectiveness of actions taken on behalf of the contractor. The obligation to comply, however, is the
contractor's and failure of such a group to fulfill an obligation shall not be a defense for the contractor's
noncompliance.
9.
A single goal for minorities and a separate single goal for women have been established. The
contractor, however, is required to provide equal employment opportunity and to take affirmative action
for all minority groups, both male and female, and all women, both minority and non-minority.
Consequently, the contractor may be in violation of the Executive Order if a particular group is employed
in a substantially disparate manner (even though the contractor has achieved its goal for women
generally, the contractor may be in violation of the Executive Order if a specific minority group of women
is underutilized).
10.
The contractor shall not use the goals and timetables or affirmative action standards to discriminate
against any person because of race, color, religion, sex, or national origin.
11.
The contractor shall not enter into any subcontract with any person or firm debarred from government
contracts pursuant to Executive Order No. 11246.
12.
The contractor shall carry out such sanctions and penalties for violation of these specifications and of
the equal opportunity clause, including suspension, termination and cancellation of existing subcontracts
as may be imposed or ordered pursuant to Executive Order No. 11246, as amended, and its
implementing regulations, by the Office of Federal Contract Compliance Programs. Any contractor who
fails to carry out such sanctions and penalties shall be in violation of these specifications and Executive
Order No. 11246, as amended.
13.
The contractor, in fulfilling its obligations under these specifications, shall implement specific affirmative
action steps, at least as extensive as those standards prescribed in paragraph (7) of these
specifications, so as to achieve maximum results from its efforts to ensure equal employment
opportunity. If the contractor fails to comply with the requirements of the Executive Order, the
implementing regulations, or these specifications, the Director shall proceed in accordance with 41
C.F.R. 60-4.8.
14.
The contractor shall designate a responsible official to monitor all employment related activity to ensure
that the company EEO policy is being carried out, to submit reports relating to the provisions hereof as
may be required by the Government and to keep records. Records shall at least include for each
employee the name, address, telephone numbers, construction trade, union affiliation if any, employee
identification number when assigned, social security number, race, sex, status (e.g., mechanic,
apprentice trainee, helper, or laborer), dates of changes in status, hours worked per week in the
indicated trade, rate of pay, and locations at which the work was performed. Records shall be
maintained in an easily understandable and retrievable form; however, to the extent that existing records
satisfy this requirement, contractors shall not be required to maintain separate records.
15.
Nothing herein provided shall be construed as a limitation upon the application of other laws that
establish different standards of compliance or upon the application of requirements for the hiring of local
or other area residents (e.g., those under the Public Works Employment Act of 1977 and the Community
Development Block Grant Program)."
Notice
Contractor agrees to include the following notice in all construction subcontracts over $10,000, in geographical
areas designated pursuant to 41 C.F.R. 60-4.2:
"Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity (Executive Order
11246):
1.
The offeror's or bidder's attention is called to the "Equal Opportunity Clause" and the "Standard Federal
Equal Employment Specifications" set forth herein.
2.
a.
The goals and the timetables for minority and female participation, expressed in percentage terms for
the contractor's aggregate work force in each trade on all construction work in the covered area, are
as follows:
Timetables
Goals for Minority
Participation for Each Trade
Goals for Female
Participation in Each Trade
Insert Goals for Each Year
Insert Goals for Each Year
b.
These goals are applicable to all the contractor's construction work (whether or not it is Federal or
Federally assisted) performed in the covered area. If the contractor performs construction work in a
geographical area located outside of the covered area, it shall apply the goals established for such
geographical area where the work is actually performed. With regard to this second area, the
contractor also is subject to the goals for both its Federally involved and nonfederally involved
construction.
c.
The contractor's compliance with the Executive Order and the regulations at 41 C.F.R. Part 60-4
shall be based on its implementation of the Equal Opportunity Clause, specific affirmative action
obligations required by the specifications set forth at 41 C.F.R. Part 60-4.3(a), and its efforts to meet
the goals. The hours of minority and female employment and training must be substantially uniform
throughout the length of the contract, and in each trade, and the contractor shall make a good faith
effort to employ minorities and women evenly on each of its projects. The transfer of minority or
female employees or trainees from contractor to contractor or from project to project for the sole
purpose of meeting the contractor's goals shall be a violation of the contract, the Executive Order,
and the regulations in C.F.R. Part 60-4. Compliance with the goals will be measured against the total
work hours performed.
3.
The contractor shall provide written notification to the Director of the Office of Federal Contract Compliance
Programs within 10 working days of award of any construction subcontract in excess of $10,000 at any tier
for construction work under the contract resulting from this solicitation. The notification shall list the name,
address, and telephone number of the subcontractor; employer identification number of the subcontractor;
estimated dollar amount of the subcontract; estimated starting and completion dates of the subcontract; and
the geographical area in which the subcontract is to be performed.
4.
As used in this notice, and in the contract resulting from this solicitation, the "covered area" is miscellaneous
sites within the city limits of Tucson, Pima County, State of Arizona."
Construction Employee Protection Requirements: (except for contracts < $2,000, or for
supplies/raw materials)
Davis Bacon Act - 40 USC §§ 3142(a), 29 CFR § 5.5(a)
Copeland Anti-Kickback Act - 18 U.S.C. § 874, 29 C.F.R. § 3, 29 C.F.R. § 5.5(a)(1) through (10)
Contract Work Hours & Safety Standards Act - 40 U.S.C. §3701, 29 C.F.R. § 5.5(b)
Federal Labor Standards Provision
_______________________________________________________________________________________________
[Code of Federal Regulations]
[Title 29, Volume 1, Parts 0 to 99]
[Revised as of July 1, 1998]
From the U.S. Government Printing Office
via GPO Access
(http://www.access.gpo.gov/nara/cfr/index.
html)
[CITE: 29CFR5.5]
[Page 110-116]
TITLE 29--LABOR
PART
5--LABOR
STANDARDS
PROVISIONS
APPLICABLE
TO
CONTRACTS
COVERING
FEDERALLY
FINANCED
AND
ASSISTED
CONSTRUCTION
(ALSO
LABOR
STANDARDS PROVISIONS APPLICABLE
TO
NONCONSTRUCTION
CONTRACTS
SUBJECT TO THE CONTRACT WORK
HOURS AND SAFETY STANDARDS ACT)
Subpart A--Davis-Bacon and Related
Acts Provisions and Procedures
Sec. 5.5 Contract provisions and related
matters.
(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
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
(including any additional classifications and
wage rates conformed under paragraph (1)(ii)
of this section) 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)(A) The contracting officer shall require
that any class of laborers or mechanics,
including helpers, 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 therefore only when
the following criteria have been met:
(1) Except with respect to helpers as defined
as 29 CFR 5.2(n)(4), 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; and
(4) With respect to helpers as defined in 29
CFR 5.2(n)(4), such a classification prevails in
the area in which the work is performed.
(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, U.S. Department of Labor,
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
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.
(D) The wage rate (including fringe benefits
where appropriate) determined pursuant to
paragraphs (a)(1)(ii) (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.
(iii) 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.
(iv) 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.
(v)(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 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 (a)(1)(v) (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 City of Tucson 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 City of Tucson 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.
(ii)(A) The contractor shall submit weekly for
each week in which any contract work is
performed a copy of all payrolls to the City of
Tucson 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
section 5.5(a)(3)(i) of Regulations, 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 and shall certify
the following:
(1) That the payroll for the payroll period
contains the information required to be
maintained under section 5.5(a)(3)(i) of
Regulations, 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 (a)(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
(a)(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 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.
(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
U.S.C. 1001.
Contract Work Hours and
Safety Standards
(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.
(3) Withholding for unpaid wages and
liquidated damages - The City of Tucson
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 paragraphs (1)
through (4) of 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
paragraphs (1) through (4) of this section.
ATTACHMENT TO FEDERAL LABOR STANDARDS PROVISIONS
SO CALLED “ANTI-KICKBACK ACT” AND REGULATIONS PROMULGATED
PURSUANT THERETO BY THE SECRETARY OF LABOR.
UNITD STATES DEPARTMENT OF LABOR
TITLE 18, U.S.C., section 874
(June 25, 1948, ch. 645, 62 Stat. 740; Pub. L. 103-322, title XXXIII,
Sec. 330016(1)(K), Sept. 13, 1994, 108 Stat. 2147.)
KICKBACKS FROM PUBLIC WORKS EMPLOYEES
Whoever, by force, intimidation, or threat of procuring dismissal from employment, or by any other
manner whatsoever induces any person employed in the construction, prosecution, completion or repair
of any public building, public work, or building or work financed in whole or in part by loans or grants
from the United States, to give up any part of the compensation to which he is entitled under his contract
of employment, shall be fined under this title or imprisoned not more than five years, or both.
TITLE 29 – LABOR
Subtitle A - Office of Secretary of Labor
PART 3 – CONTRACTORS AND SUBCONTRACTORS ON PUBLIC BUILDING OR
PUBLIC WORK FINANCED IN WHOLE OR IN PART BY LOANS OR GRANTS FROM
THE UNITED STATES
Sec. 3.1 Purpose and scope.
This part prescribes ``anti-kickback'' regulations under section 2 of the Act of June 13, 1934, as
amended (40 U.S.C. 276c), popularly known as the Copeland Act. This part applies to any contract which
is subject to Federal wage standards and which is for the construction, prosecution, completion, or repair
of public buildings, public works or buildings or works financed in whole or in part by loans or grants from
the United States. The part is intended to aid in the enforcement of the minimum wage provisions of the
Davis-Bacon Act and the various statutes dealing with federally assisted construction that contain similar
minimum wage provisions, including those provisions which are not subject to Reorganization Plan No.
14 (e.g., the College Housing Act of 1950, the Federal Water Pollution Control Act, and the Housing Act
of 1959), and in the enforcement of the overtime provisions of the Contract Work Hours Standards Act
whenever they are applicable to construction work. The part details the obligation of contractors and
subcontractors relative to the weekly submission of statements regarding the wages paid on work
covered thereby; sets forth the circumstances and procedures governing the making of payroll deductions
from the wages of those employed on such work; and delineates the methods of payment permissible on
such work.
Sec. 3.2 Definitions.
As used in the regulations in this part:
(a) The terms building or work generally include construction activity as distinguished from
manufacturing, furnishing of materials, or servicing and maintenance work. The terms include, without
limitation, buildings, structures, and improvements of all types, such as bridges, dams, plants, highways,
parkways, streets, subways, tunnels, sewers, mains, powerlines, pumping stations, railways, airports,
terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and canals;
dredging, shoring, scaffolding, drilling, blasting, excavating, clearing, and landscaping.
Unless conducted in connection with and at the site of such a building or work as is described in the
foregoing sentence, the manufacture or furnishing of materials, articles, supplies, or equipment (whether
or not a Federal or State agency acquires title to such materials, articles, supplies, or equipment during
the course of the manufacture or furnishing, or owns the materials from which they are manufactured or
furnished) is not a building or work within the meaning of the regulations in this part.
(b) The terms construction, prosecution, completion, or repair mean all types of work done on a
particular building or work at the site thereof, including, without limitation, altering, remodeling, painting
and decorating, the transporting of materials and supplies to or from the building or work by the
employees of the construction contractor or construction subcontractor, and the manufacturing or
furnishing of materials, articles, supplies, or equipment on the site of the building or work, by persons
employed at the site by the contractor or subcontractor.
(c) The terms public building or public work include building or work for whose construction,
prosecution, completion, or repair, as defined above, a Federal agency is a contracting party, regardless
of whether title thereof is in a Federal agency.
(d) The term building or work financed in whole or in part by loans or grants from the United States
includes building or work for whose construction, prosecution, completion, or repair, as defined above,
payment or part payment is made directly or indirectly from funds provided by loans or grants by a
Federal agency. The term includes building or work for which the Federal assistance granted is in the
form of loan guarantees or insurance.
(e) Every person paid by a contractor or subcontractor in any manner for his labor in the
construction, prosecution, completion, or repair of a public building or public work or building or work
financed in whole or in part by loans or grants from the United States is employed and receiving wages,
regardless of any contractual relationship alleged to exist between him and the real employer.
(f) The term any affiliated person includes a spouse, child, parent, or other close relative of the
contractor or subcontractor; a partner or officer of the contractor or subcontractor; a corporation closely
connected with the contractor or subcontractor as parent, subsidiary, or otherwise, and an officer or agent
of such corporation.
(g) The term Federal agency means the United States, the District of Columbia, and all executive
departments, independent establishments, administrative agencies, and instrumentalities of the United
States and of the District of Columbia, including corporations, all or substantially all of the stock of which
is beneficially owned by the United States, by the District of Columbia, or any of the foregoing
departments, establishments, agencies, and instrumentalities.
[29 FR 97, Jan. 4, 1964, as amended at 38 FR 32575, Nov. 27, 1973]
Sec. 3.3 Weekly statement with respect to payment of wages.
(a) As used in this section, the term employee shall not apply to persons in classifications higher than
that of laborer or mechanic and those who are the immediate supervisors of such employees.
(b) Each contractor or subcontractor engaged in the construction, prosecution, completion, or repair of
any public building or public work, or building or work financed in whole or in part by loans or grants from
the United States, shall furnish each week a statement with respect to the wages paid each of its
employees engaged on work covered by this part 3 and part 5 of this title during the preceding weekly
payroll period. This statement shall be executed by the contractor or
subcontractor or by an authorized officer or employee of the contractor or subcontractor who supervises
the payment of wages, and shall be on the back of Form WH 347, ``Payroll (For Contractors Optional
Use)'' or on any form with identical wording. Copies of Form WH 347 may be obtained from the
Government contracting or sponsoring agency or from the Wage and Hour Division Web site at
http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site.
(c) The requirements of this section shall not apply to any contract of $2,000 or less.
(d) Upon a written finding by the head of a Federal agency, the Secretary of Labor may provide
reasonable limitations, variations, tolerances, and exemptions from the requirements of this section
subject to such conditions as the Secretary of Labor may specify.
[29 FR 97, Jan. 4, 1964, as amended at 33 FR 10186, July 17, 1968; 47
FR 23679, May 28, 1982; 73 FR 77511, Dec. 19, 2008]
Sec. 3.4 Submission of weekly statements and the preservation and inspection of weekly payroll records.
(a) Each weekly statement required under Sec. 3.3 shall be delivered by the contractor or
subcontractor, within seven days after the regular payment date of the payroll period, to a representative
of a Federal or State agency in charge at the site of the building or work, or, if there is no representative
of a Federal or State agency at the site of the building or work, the statement shall be mailed by the
contractor or subcontractor, within such time, to a Federal or State agency contracting for or financing
the building or work. After such examination and check as may be made, such statement, or a copy
thereof, shall be kept available, or shall be transmitted together with a report of any violation, in
accordance with applicable procedures prescribed by the United States Department of Labor.
(b) Each contractor or subcontractor shall preserve his weekly payroll records for a period of three
years from date of completion of the contract. The payroll records shall set out accurately and completely
the name and address of each laborer and mechanic, his correct classification, rate of pay, daily and
weekly number of hours worked, deductions made, and actual wages paid. Such payroll records shall be
made available at all times for inspection by the contracting officer or his authorized representative, and
by authorized representatives of the Department of Labor.
(Reporting and recordkeeping requirements in paragraph (b) have been approved by the Office of
Management and Budget under control number
1215-0017)
[29 FR 97, Jan. 4, 1964, as amended at 47 FR 145, Jan. 5, 1982]
Sec. 3.5 Payroll deductions permissible without application to or approval of the Secretary of Labor.
Deductions made under the circumstances or in the situations described in the paragraphs of this
section may be made without application to and approval of the Secretary of Labor:
(a) Any deduction made in compliance with the requirements of Federal, State, or local law, such as
Federal or State withholding income taxes and Federal social security taxes.
(b) Any deduction of sums previously paid to the employee as a bona fide prepayment of wages when
such prepayment is made without discount or interest. A bona fide prepayment of wages is considered to
have been made only when cash or its equivalent has been advanced to the person employed in such
manner as to give him complete freedom of disposition of the advanced funds.
(c) Any deduction of amounts required by court process to be paid to another, unless the deduction
is in favor of the contractor, subcontractor, or any affiliated person, or when collusion or collaboration
exists.
(d) Any deduction constituting a contribution on behalf of the person employed to funds established by
the employer or representatives of employees, or both, for the purpose of providing either from principal
or income, or both, medical or hospital care, pensions or annuities on retirement, death benefits,
compensation for injuries, illness, accidents, sickness, or disability, or for insurance to provide any of the
foregoing, or unemployment benefits, vacation pay, savings accounts, or similar payments for the benefit
of employees, their families and dependents:
Provided, however, That the following standards are met:
(1) The deduction is not otherwise prohibited by law;
(2) It is either:
(i) Voluntarily consented to by the employee in writing and in advance of the period in which the work is
to be done and such consent is not a condition either for the obtaining of or for the continuation of
employment, or
(ii) provided for in a bona fide collective bargaining agreement between the contractor or subcontractor
and representatives of its employees;
(3) No profit or other benefit is otherwise obtained, directly or indirectly, by the contractor or
subcontractor or any affiliated person in the form of commission, dividend, or otherwise; and
(4) The deductions shall serve the convenience and interest of the employee.
(e) Any deduction contributing toward the purchase of United States Defense Stamps and Bonds when
voluntarily authorized by the employee.
(f) Any deduction requested by the employee to enable him to repay loans to or to purchase shares in
credit unions organized and operated in accordance with Federal and State credit union statutes.
(g) Any deduction voluntarily authorized by the employee for the making of contributions to
governmental or quasi-governmental agencies, such as the American Red Cross.
(h) Any deduction voluntarily authorized by the employee for the making of contributions to Community
Chests, United Givers Funds, and similar charitable organizations.
(i) Any deductions to pay regular union initiation fees and membership dues, not including fines or
special assessments: Provided, however, That a collective bargaining agreement between the contractor
or subcontractor and representatives of its employees provides for such deductions and the deductions
are not otherwise prohibited by law.
(j) Any deduction not more than for the ``reasonable cost'' of board, lodging, or other facilities meeting
the requirements of section 3(m) of the Fair Labor Standards Act of 1938, as amended, and part 531 of
this title. When such a deduction is made the additional records required under Sec. 516.25(a) of this title
shall be kept.
(k) Any deduction for the cost of safety equipment of nominal value purchased by the employee as his
own property for his personal protection in his work, such as safety shoes, safety glasses, safety gloves,
and hard hats, if such equipment is not required by law to be furnished by the employer, if such deduction
is not violative of the Fair Labor Standards Act or prohibited by other law, if the cost on which the
deduction is based does not exceed the actual cost to the employer where the equipment is purchased
from him and does not include any direct or indirect monetary return to the employer where the
equipment is purchased from a third person, and if the deduction is either
(1) Voluntarily consented to by the employee in writing and in advance of the period in which the work
is to be done and such consent is not a condition either for the obtaining of employment or its
continuance; or
(2) Provided for in a bona fide collective bargaining agreement between the contractor or subcontractor
and representatives of its employees.
[29 FR 97, Jan. 4, 1964, as amended at 36 FR 9770, May 28, 1971]
Sec. 3.6 Payroll deductions permissible with the approval of the Secretary of Labor.
Any contractor or subcontractor may apply to the Secretary of Labor for permission to make any
deduction not permitted under Sec. 3.5. The Secretary may grant permission whenever he finds that:
(a) The contractor, subcontractor, or any affiliated person does not make a profit or benefit directly or
indirectly from the deduction either in the form of a commission, dividend, or otherwise;
(b) The deduction is not otherwise prohibited by law;
(c) The deduction is either (1) voluntarily consented to by the employee in writing and in advance of the
period in which the work is
To be done and such consent is not a condition either for the obtaining of employment or its continuance,
or (2) provided for in a bona fide collective bargaining agreement between the contractor or subcontractor
and representatives of its employees; and
(d) The deduction serves the convenience and interest of the employee.
Sec. 3.7 Applications for the approval of the Secretary of Labor.
Any application for the making of payroll deductions under Sec. 3.6 shall comply with the requirements
prescribed in the following paragraphs of this section:
(a) The application shall be in writing and shall be addressed to the Secretary of Labor.
(b) The application need not identify the contract or contracts under which the work in question is to be
performed. Permission will be given for deductions on all current and future contracts of the applicant for
a period of 1 year. A renewal of permission to make such payroll deduction will be granted upon the
submission of an application which makes reference to the original application, recites the date of the
Secretary of Labor's approval of such deductions, states affirmatively that there is continued compliance
with the standards set forth in the provisions of Sec. 3.6, and specifies any conditions which have
changed in regard to the payroll deductions.
(c) The application shall state affirmatively that there is compliance with the standards set forth in the
provisions of Sec. 3.6. The affirmation shall be accompanied by a full statement of the facts indicating
such compliance.
(d) The application shall include a description of the proposed deduction, the purpose to be served
thereby, and the classes of laborers or mechanics from whose wages the proposed deduction would be
made.
(e) The application shall state the name and business of any third person to whom any funds obtained
from the proposed deductions are to be transmitted and the affiliation of such person, if any, with the
applicant.
[29 FR 97, Jan. 4, 1964, as amended at 36 FR 9771, May 28, 1971]
Sec. 3.8 Action by the Secretary of Labor upon applications.
The Secretary of Labor shall decide whether or not the requested deduction is permissible under
provisions of Sec. 3.6; and shall notify the applicant in writing of his decision.
Sec. 3.9 Prohibited payroll deductions.
Deductions not elsewhere provided for by this part and which are not found to be permissible under
Sec. 3.6 are prohibited.
Sec. 3.10 Methods of payment of wages.
The payment of wages shall be by cash, negotiable instruments payable on demand, or the additional
forms of compensation for which deductions are permissible under this part. No other methods of
payment shall be recognized on work subject to the Copeland Act.
Sec. 3.11 Regulations part of contract.
All contracts made with respect to the construction, prosecution, completion, or repair of any public
building or public work or building or work financed in whole or in part by loans or grants from the United
States covered by the regulations in this part shall expressly bind the contractor or subcontractor to
comply with such of the regulations in this part as may be applicable. In this regard, see Sec. 5.5(a) of
this subtitle.
Siesmic Safety - 42 U.S.C. 7701 et seq. 49, CFR Part 41
The Seismic Safety requirements apply only to contracts for the construction of new buildings or additions to
existing buildings.
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
Non Construction Activities
Non Construction Employee Protection Requirements (Except for supplies/raw materials)
The Contractor agrees to comply with and assures compliance by other Project participants with any
applicable employee protection requirements for nonconstruction employees of the Contract Work Hours and
Safety Standards Act, as amended, 40 U.S.C. §§ 3701 et seq., in particular with the wage and hour
requirements of section 102 of that Act at 40 U.S.C. § 3702, and with implementing U.S. DOL regulations,
“Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted
Construction (also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the
Contract Work Hours and Safety Standards Act),” 29 C.F.R. Part 5.
Transit Operations
Transit Employee Protective Arrangements - 49 U.S.C. § 5310, § 5311, and § 5333; 29 CFR
Part 215
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 U.S.C. A 5333(b), and U.S. DOL guidelines at 29 C.F.R. 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 U.S.C. § 5310(a)(2), or for projects for nonurbanized areas authorized by 49
U.S.C. § 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 U.S.C. § 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 U.S.C. § 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
U.S.C. § 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 U.S.C. §
5333(b), U.S. DOL guidelines at 29 C.F.R. 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.
c. Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C. § 5311 in
Nonurbanized Areas - If the contract involves transit operations financed in whole or in part with Federal
assistance authorized by 49 U.S.C. § 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.
The Contractor also agrees to include the applicable requirements in each subcontract involving transit
operations financed in whole or in part with Federal assistance provided by FTA.
Charter Service Operation - 49 U.S.C. 5323(d), 49 CFR Part 604
Charter Service Operations - The contractor agrees to comply with 49 U.S.C.
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.
School Bus Operation - 49 U.S.C. 5323(f) or (g), 49 CFR Part 605
Pursuant to 49 U.S.C. 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.
Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations - 49 U.S.C.
§5331, 49 CFR Part 655
The contractor agrees to establish an anti-drug use and alcohol misuse program that complies with 49
CFR Part 655, produce any documentation necessary to establish its compliance with Part 655, and
permit any authorized representative of the United States Department of Transportation or its operating
administrations, the State Oversight Agency of Arizona, or the City of Tucson, to inspect the facilities and
records associated with the implementation of the drug and alcohol testing program as required under 49
CFR Part 655 and review the contractor's testing process. The contractor agrees further to certify
annually its compliance with Part 655 thirty days before July 1st of each year and to submit the
Management Information System (MIS) reports thirty days before March 15 each year to John Zukas,
Transit Services Coordinator, P.O. Box 27210 Tucson, AZ 85726.
If the Contractor performs functions under the Federal Highway Administration (FHWA) and Federal
Transit Administration (FTA), the contractor must comply with such applicable regulations. The
Contractor’s Drug Free Workplace Policy and the Contractor’s Drug and Alcohol Policy/Program must
clearly delineate the Contractor’s responsibilities under their own Company policy, the FHWA’s
regulations, and the FTA’s regulations respectively.
Privacy Act - 5 U.S.C. 552
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.
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 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.
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.
Planning, Research, Development and Demonstration Projects
Patent And Rights In Data - 37 CFR Part 401, 49 CFR Parts 18 and 19
CONTRACTS INVOLVING EXPERIMENTAL, DEVELOPMENTAL, OR RESEARCH WORK.
A.
Rights in Data - This following requirements apply 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 to the public; this restriction on publication, however,
does not apply to any contract with an academic institution.
b.
In accordance with 49 C.F.R. § 18.34 and 49 C.F.R. § 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.
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 C.F.R. 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 - This 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,"
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.
Turnkey and Other Acquisitions Made by a Third Party Contractor
Assuming the Role of the City of Tucson
Bus Testing - 49 U.S.C. 5323(c), 49 CFR Part 665
The Contractor or Manufacturer agrees to comply with 49 U.S.C. 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 City of Tucson at a point in the
procurement process specified by the City of Tucson which will be prior to the City of Tucson'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 City of Tucson 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
City of Tucson of such a vehicle and the details of that vehicle's configuration and major components.
Pre-Award and Post-Delivery Audit Requirements - 49 U.S.C. 5323, 49 CFR Part 663
The Contractor agrees to comply with 49 U.S.C. § 5323(l) and FTA's implementing regulation at 49 C.F.R.
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:
a.
component and subcomponent parts of the rolling stock to be purchased identified by
manufacturer of the parts, their country of origin and costs; and;
b.
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 (FMVSS): The Contractor shall submit:
a.
manufacturer's FMVSS self-certification sticker information that the vehicle complies with
relevant FMVSS or;
b.
manufacturer's certified statement that the contracted buses will not be subject to FMVSS
regulations.
Miscellaneous Special Requirements
Environmental Protection 42 U.S.C. 4321 et seq., 49 U.S.C. 5324(b) et seq., 40 CFR Part
1500 et seq., 23 CFR Part 771, 49 CFR Part 622
The Contractor agrees to comply with all applicable requirements of the National Environmental Policy Act of
1969, as amended, 42 U.S.C. §§ 4321 et seq. consistent with Executive Order No. 11514, as amended,
"Protection and Enhancement of Environmental Quality," 42 U.S.C. § 4321 note; FTA statutory requirements
on environmental matters at 49 U.S.C. § 5324(b); Council on Environmental Quality regulations on
compliance with the National Environmental Policy Act of 1969, as amended, 40 C.F.R. Part 1500 et seq.;
and joint FHWA/FTA regulations, "Environmental Impact and Related Procedures," 23 C.F.R. Part 771 and
49 C.F.R. Part 622
Energy Conservation Requirements - 42 U.S.C. 6321 et seq., 49 CFR Part 18
Contractor shall recognize 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.
Metric System Requirements – 15 U.S.C. 205a et seq.
As required by U.S. DOT or FTA, the City of Tucson agrees to use the metric system of measurement in its
Project activities, as may be required by 15 U.S.C. §§ 205a et seq.; Executive Order No. 12770, "Metric
Usage in Federal Government Programs," 15 U.S.C. § 205a note; and other regulations, guidelines, and
policies issued by U.S. DOT or FTA. To the extent practicable and feasible, the City of Tucson agrees to
accept products and services with dimensions expressed in the metric system of measurement.
National ITS Architecture
The Contractor agrees to conform, to the extent applicable, to the National Intelligent Transportation Systems
(ITS) Architecture and Standards as required by SAFETEA LU § 5307(c), 23 U.S.C. § 512 note, and comply
with FTA Notice, "FTA National ITS Architecture Policy on Transit Projects" 66 Fed. Reg. 1455 et seq.,
January 8, 2001, and to any subsequent further implementing directives, except to the extent FTA
determines otherwise in writing.
Recycled Products (for items designated by the EPA)
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 Subpart B of 40 CFR Part 247.
Seat Belt Use
In accordance with the provisions of Executive Order No. 13043, “Increasing Seat Belt Use in the United
States,” April 16, 1997, 23 U.S.C. § 402 note, the contractor is encouraged to adopt and promote on-the-
job seat belt use policies and programs for its employees and other personnel that operate company-
owned, rented, or personally operated vehicles, and to include this provision in any subagreements,
leases, third party contracts, or other similar document in connection with the Project.
Text Messaging While Driving
In accordance with Executive Order No. 13513,Federal Leadership on Reducing Text Messaging While
Driving, October 1, 2009, 23 U.S.C.A. § 402 note, and DOT Order 3902.10, Text Messaging While
December 30, 2009, the contractor is encouraged to comply with the terms of the following Special
Provision.
a. Definitions. As used in this Special Provision:
(1) "Driving" means operating a motor vehicle on a roadway, including while temporarily
stationary because of traffic, a traffic light, stop sign, or otherwise. "Driving" does not
include being in your vehicle (with or without the motor running) in a location off the
roadway where it is safe and legal to remain stationary.
(2) "Text Messaging" means reading from or entering data into any handheld or other
electronic device, including for the purpose of short message service texting, e-mailing,
instant messaging, obtaining navigational information, or engaging in any other form of
electronic data retrieval or electronic data communication. The term does not include the
use of a cell phone or other electronic device for the limited purpose of entering a
telephone number to make an outgoing call or answer an incoming call, unless the
practice is prohibited by State or local law.
b. Safety. The Grantee is encouraged to:
(1) Adopt and enforce workplace safety policies to decrease crashes caused by
distracted drivers including policies to ban text messaging while driving-
(a) Grantee-owned or Grantee-rented vehicles or Government-owned, leased or
rented vehicles;
(b) Privately-owned vehicles when on official Project related business or when
performing any work for or on behalf of the Project; or
(c) Any vehicle, on or off duty, and using an employer supplied electronic device.
(2) Conduct workplace safety initiatives in a manner commensurate with the Grantee's
size, such as:
(a) Establishment of new rules and programs or re-evaluation of existing programs
to prohibit text messaging while driving; and
(b) Education, awareness, and other outreach to employees about the safety risks
associated with texting while driving.
(3) Include this Special Provision in its subagreements with its subrecipients and third
party contracts and also encourage its subrecipients, lessees, and third party contractors
to comply with the terms of this Special Provision, and include this Special Condition in
each subagreement, lease, and third party contract at each tier financed with Federal
assistance provided by the Federal Government.
Federal Davis-Bacon Wage Rates
The Federal Wage Rates applicable to this
Contract are set forth in the following
Document.
INSERT
MOST
RECENT
WAGE
DECISION
INFORMATION
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Certifications
BUY AMERICA CERTIFICATION
CERTIFICATION FOR PROCUREMENT OF STEEL OR MANUFACTURED
PRODUCTS
(To be submitted with each bid or offer exceeding $100,000)
(To be signed and submitted by the bidder/offeror)
Certification requirement for all procurements except buses, other rolling stock and associated
equipment.
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 U.S.C. 5323(j)(1)
The bidder or offeror hereby certifies that it will meet the requirements of 49 U.S.C.
5323(j)(1) and the applicable regulations in 49 CFR Part 661.
Date ____________________________________________________________
Signature______________________________________________________
Company Name_______________________________________________________
Title _____________________________________________________________
Certificate of Non-Compliance with 49 U.S.C. 5323(j)(1)
The bidder or offeror hereby certifies that it cannot comply with the requirements of 49
U.S.C. 5323(j)(1), but it may qualify for an exception pursuant to 49 U.S.C. 5323(j)(2)(B)
or (j)(2)(D) and the regulations in 49 CFR 661.7.
Date _________________________________________________________________
Signature ___________________________________________________________
Company Name ________________________________________________________
Title _______________________________________________________________
BUY AMERICA CERTIFICATION
CERTIFICATION FOR PROCUREMENT OF STEEL OR MANUFACTURED PRODUCTS
Certification requirement for procurement of buses, other rolling stock and associated equipment.
(To be submitted with each bid or offer exceeding $100,000)
(To be signed and submitted by the bidder/offeror)
Certificate of Compliance with 49 U.S.C. 5323(j)(2)(C).
The bidder or offeror hereby certifies that it will comply with the requirements of 49
U.S.C. 5323(j)(2)(C) and the regulations at 49 CFR Part 661.
Date ______________________________________________________________
Signature __________________________________________________________
Company Name _____________________________________________________
Title _______________________________________________________________
Certificate of Non-Compliance with 49 U.S.C. 5323(j)(2)(C)
The bidder or offeror hereby certifies that it cannot comply with the requirements of 49
U.S.C. 5323(j)(2)(C), but may qualify for an exception pursuant to 49 U.S.C.
5323(j)(2)(B) or (j)(2)(D) and the regulations in 49 CFR 661.7.
Date ______________________________________________________________
Signature __________________________________________________________
Company Name _____________________________________________________
Title ________________________________________________________
TRANSIT VEHICLE MANUFACTURER’S DBE CERTIFICATION
Certificate of Compliance with 49 CFR part 26.
CERTIFICATION REQUIREMENT FOR PROCUREMENT OF TRANSIT VEHICLES ONLY
(To be submitted with all bids or offers for transit vehicles)
(To be signed and submitted by the manufacturer of the product offered)
This procurement is subject to the provisions of 49 CFR Part 26. Accordingly, as a
condition of permission to bid, the following certification must be completed and
submitted with the bid. A bid that does not include the certification must be rejected as
non-responsive and not considered for evaluation and award.
I hereby certify that the offeror has complied with the requirements of 49 CFR part 26,
Participation by Disadvantaged Business Enterprises in DOT Programs, and that its
goals have been approved, or not disapproved, by the Federal Transit Administration.
Name of Offeror
Signature of the Offeror’s Authorized Official
Name and Title of the Offeror’s Authorized Official
Date
CERTIFICATION REGARDING LOBBYING
CERTIFICATION FOR CONTRACTS, GRANTS, LOANS, AND COOPERATIVE
AGREEMENTS
(To be submitted with each bid or offer exceeding $100,000)
(To be submitted by the bidder/offeror)
The undersigned Contractor certifies, to the best of his or her knowledge and belief, that:
1.
No Federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or employee
of an agency, a Member of Congress, an officer or employee of Congress, or an employee
of a Member of Congress in connection with the awarding of any Federal contract, the
making 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 (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 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, 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.]
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 U.S.C. A 3801, et seq., apply to this certification and disclosure, if
any.
__________________________ Signature of Contractor's Authorized Official
__________________________ Name and Title of Contractor's Authorized Official
___________________________ Date
CERTIFICATION OF COMPLIANCE WITH FTA'S BUS TESTING REQUIREMENTS
(Pertains only to the acquisition of Turnkey Rolling Stock over $100,000))
(To be signed and submitted by the manufacturer of the product offered)
The undersigned Manufacturer certifies that the vehicle offered in this procurement complies
with 49 U.S.C. 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: _______________________________
Company Name: __________________________
Title: ___________________________________
Protest Procedures For Federal Transit Administration Funded
Projects
City Of Tucson Protest Procedures For Federal Transit Administration (FTA) Funded
Projects
A protestant must exhaust all City of Tucson Procurement administrative procedures and
remedies before pursuing a protest with the FTA.
1.
Any and all protests shall be in writing and shall be filed with the Director of Procurement, City of
Tucson, Arizona. A protest relating to the process for determining the most responsive and
responsible proposer shall be filed within ten (10) calendar days after the protestor knows or should
have known the basis of the determination. A protest of a proposed award or rejection shall be filed
within ten (10) calendar days after the protestor knows or should have known the basis of the protest.
The Contract Officer shall respond to a protest within fourteen (14) calendar days after the receipt of
the protest. The Procurement Director may grant the Contract Officer an extension for the response if
warranted. A request for reconsideration of any and all determinations by the Contract Officer shall be
filed with the Procurement Director within seven (7) calendar days after the receipt of the
determination.
2.
A protest shall include:
A.
The name, address, and telephone number, including FAX number if available, of the protestor;
B.
The signature of the protestor or authorized representative;
C.
Identification of the contract/solicitation;
D.
A detailed statement of the legal and/or factual grounds of protest including copies and/or
citations of relevant documents, and;
E.
The form of relief requested.
3.
If any of the above information is omitted or incomplete, then the Protestor shall be notified, in writing,
within two (2) calendar days after that determination, and the Protestor shall have two (2) calendar
days in which to remedy the specified problem.
4.
The City will not make award prior to the resolution of a protest, or open bids prior to resolution of a
protest filed before bid opening unless the Procurement Director determines in writing that it is in the
best interests of the City or in keeping with Item 7 of this procedure to do otherwise. Potential
contractors will be advised of a pending protest if the protest is filed before award.
5.
The Procurement Director may allow for an informal conference on the merits of a protest with all
interested parties allowed to attend. Interested parties include all bidders/offerors, and may also
include a subcontractor or supplier provided they have a substantial economic interest in a portion of
the IFB or RFP.
6.
The Procurement Director shall respond "in writing", in detail, to each substantial issue raised in the
protest. The Procurement Director has the sole authority to make determinations for the City, and a
determination shall be considered final when it is labeled as such. A request for reconsideration will be
allowed by the Procurement Director if he determines that data has become available that was not
previously known, or that there has been an error of law or regulation.
7.
The City may proceed with a procurement when a protest is pending if the City determines that:
A.
The items to be procured are urgently required;
B.
Delivery or performance will be unduly delayed by failure to make the award promptly; or
C.
Failure to make award will otherwise cause undue harm to the grantee for the Federal
Government.
8.
FTA will only entertain a protest that alleges:
1.
The City failed to have or to adhere to its protest procedures, or failed to review a complaint or
protest; or
2.
Violations of Federal law or regulation.
A protest to FTA must be filed in accordance with FTA Circular 4220.1F, available from the Contract Officer.
Specifically, protestors shall file a protest with FTA Region 9 or FTA Headquarters Office no later than five (5)
days after a final decision is rendered under the City's protest procedure. In instances where the protestor
alleges that the City failed to make a final determination on the protest, protestors shall file a protest with FTA
not later than five (5) calendar days after the protester knew or should have known of the grantee's failure to
render a final determination on the protest.
A protest filed with FTA shall:
A.
Include the name and address of the protestor.
B.
Identify the grantee, project number, and the number of the contract solicitation.
C.
Contain a statement of the grounds for protest and any supporting documentation. This should
detail the alleged failure to have or adhere to protest procedures, failure to review a complaint or
protest; or Violation of Federal law or regulation.
D.
Include a copy of the local protest filed with the grantee and a copy of the grantee's decision, if
any.
JOB ORDER CONTRACT 212710-02
INSTALLATION, MAINTENANCE, REPAIR OF FIBER/COPPER
NETWORKS
APPENDIX '
SBE PROGRAM PROVISIONS
S/Procurement Operations/SBE_DBE/Forms/SBE Provisions
Revised August 2020
BUSINESS SERVICES DEPARTMENT
BUSINESS ENTERPRISE & COMPLIANCE PROGRAM (BECP)
SBE PROGRAM PROVISIONS
PROJECT GOAL
The City of Tucson’s Small Business Enterprise Participation goal for this project is as follows:
% SBE – Provided by BECP
In consideration of the SBE goal on this project, the City identified the following trade areas as potential
subcontracting opportunities to meet the goal, however, the Contractor may elect to meet the goal utilizing any
subcontracting opportunity they deem appropriate.
List trade categories – Provided by BECP
I.
SMALL BUSINESS ENTERPRISE REQUIREMENTS
A.
DEFINITIONS
Bidder - A firm who submits a bid or quote on an individual project which conforms in all material respects
to the requirements set forth in the solicitation, including compliance with any SBE participation
requirements.
Certified Small Business Enterprise (SBE) – A local small business that is an independent and continuing
enterprise for profit, performing a Commercially Useful Function, that has completed the application process
for certification, and has met the requirements set forth in Title 49, Code of Federal Regulations, (49 CFR
Part 26).
Commercially Useful Function - Is defined as the performance of real and actual services in the discharge
of any contractual endeavor. An SBE subcontractor is performing a commercially useful function when it is
responsible for execution of a distinct element of a contract and carries out its responsibilities by actually
performing, managing and supervising the work involved.
Contractor - The individual, partnership, or corporation who, as a result of the competitive solicitation
process, is awarded a contract by the City.
Eligible Contract - Any construction, construction services or professional design services contract
undertaken by the City, unless otherwise precluded by law, provided the estimate for construction meets or
exceeds one hundred thousand dollars ($100,000). An Eligible Contract does not include any project in
which the estimated contract value is below one hundred thousand dollars ($100,000); contracts which
require a disadvantaged business enterprise goal pursuant to federal law; contracts awarded under sections
28-21 (sole source procurement), 28-22 (emergency procurement) or 28-23 (special procurement) of the
Tucson Procurement Code.
Joint Venture – An association of two (2) or more persons, partnerships, corporations, business enterprises,
or any combination of these entities established to form a single business enterprise but limited in scope and
duration for the purpose of carrying out a business activity. The agreement establishing the Joint Venture
shall be in writing. The SBE partner(s) must be responsible for a clearly defined portion of the work
performed which is set forth in detail and separately from the work to be performed by the non-SBE partner
and is assigned a commercially reasonable dollar value. Furthermore, the SBE’s interest shall be based on
sharing real economic interest in the venture, include proportionate control over management, and interest in
S/Procurement Operations/SBE_DBE/Forms/SBE Provisions
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capital acquired by the Joint Venture and interest in earnings. Only the portion of work, supplies, and/or
services attributed to the SBE, as a member of the Joint Venture, may be counted towards relevant SBE
participation goals.
Small Business Enterprise (SBE) – A Minority, woman or non-Minority Owned business that meets the
North American Industry Classification System (NAIC) size standard adopted by the City for the purposes
of qualifying for SBE certification.
Subcontractor and Subconsultant – A person or entity that contracts to perform work or render service to
a Contractor or to another Subcontractor as part of a contract with the City.
B.
APPLICABILITY
The SBE program and policies are codified in Chapter 28, Article XIII of the Tucson Procurement Code. It
is the responsibility of all contractors, subcontractors, vendors, suppliers and others who are interested in
contracting with the City of Tucson to read and become familiar with this section of the City Code.
Only firms that are certified by the City of Tucson under Chapter 28, Article XIII of the Tucson Procurement
Code, at the time of bid opening, are eligible to fulfill SBE goals for City of Tucson projects.
In addition to subcontractors, the Prime Contractor may use their own participation towards fulfillment of
the SBE participation goal if they are certified through the City of Tucson SBE program.
SBE Firms can be found by clicking on the “Search Registered Directory” button at
https://tucsonaz.diversitycompliance.com. If the name of an SBE firm does not appear in the directory, it
shall be the bidder’s responsibility to ascertain the certification status of the SBE and determine the eligibility
of the firm to meet the established goal. For any questions regarding the SBE Program and requirements,
please call (520) 837-4000 or email at ContractorCompliance@tucsonaz.gov for assistance.
C.
SBE PARTICIPATION
An SBE may participate as a prime contractor, subcontractor, second-tier subcontractor, joint venture partner
with either a prime contractor or a subcontractor, or as a vendor of materials or supplies. An SBE shall be
responsible for a clearly defined portion of the work to be performed.
D.
SBE GOALS
To satisfy SBE goals, a certified SBE must perform a commercially useful function, i.e., must be responsible
for a clearly defined portion of the work and must carry out its responsibility by actually performing,
managing and supervising the work. Bidders may meet the SBE project goals through the following methods:
Prime Contractor Participation – SBE prime contractors may use their own participation towards
fulfillment of the SBE participation goals.
Subcontractor Participation - The bidder may utilize one or more certified SBE subcontractors to satisfy
its SBE participation commitment and may claim the value of the commercially useful function to be
performed by such subcontractor(s) to obtain credit toward the satisfaction of the applicable goal.
1. Bidders who utilize certified SBE firms whose participation are included in Force Account items,
Allowances or in a Cost Reimbursement type contract, shall establish a signed contract value
with the SBE firm and may only take credit for the dollar value of that contract towards satisfying
its SBE commitment in their proposed SBE plan. The dollar value must be a specific amount
S/Procurement Operations/SBE_DBE/Forms/SBE Provisions
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based on anticipated work calculated by the subcontractor and is not reliant on any estimated
values that may be listed in the bid schedule and cannot be specified as a range.
2. If a certified SBE subcontractor enters into second tier subcontracts consistent with the standard
industry practices, such SBE subcontractor is performing a commercially useful function. If an SBE
subcontractor subcontracts a significantly greater portion of its work to a non-SBE than would be
expected by standard industry practices, it shall be presumed that the SBE is not performing a
commercially useful function. Therefore, bidders are required to identify and report the use of any
second tier subcontractors on the project.
3. Credit will be given when a SBE subcontracts part of the work of its contract to another firm only
if the SBE’s subcontractor is itself a SBE.
Supplier Participation - The bidder may contract with one or more certified SBE suppliers, provided that
the supplier is a regular dealer of the materials supplied, to obtain credit toward SBE goals. The value of the
commercially useful function to be performed by such SBE’s and credited toward satisfaction of the
applicable SBE goals is as follows:
1.
If an SBE supplier manufactures the goods supplied, one hundred percent (100%) of the
contract amount is credited towards the applicable SBE participation goal.
2.
If an SBE supplier is a wholesaler warehousing the goods supplied or is a manufacturer’s
representative, the total contract amount is credited toward the established SBE goal; however,
only twenty-five percent (25%) of the total SBE project goal may be met in this manner.
3.
If an extraordinarily large proportion of a contract price is for equipment or supplies, a lower
project goal may be set than otherwise would be required, or the twenty-five percent (25%)
limit for suppliers may be increased, or a combination of these two methods may be utilized.
Joint Venture - Where a bidder engages in a joint venture to satisfy its SBE commitment, the SBE joint
venture partner must be responsible for a clearly defined portion of the work to be performed in addition to
satisfying the requirements of ownership and control. The SBE joint venture partner must submit information
for determining joint venture eligibility. The SBE joint venture must be approved as a SBE joint venture
prior to bid opening. The Department of Procurement, Business Enterprise & Compliance Program shall
determine the degree of SBE participation resulting from the joint venture which may be credited toward the
applicable SBE goal of the project.
II.
BID OPENING PROCEDURES
A.
SUBMISSION OF THE SUBCONTRACTORS LIST AND SBE PLAN
In accordance with the Tucson Procurement Code Sections 28-48(2) and 28-150(4), all bidders must submit
the City’s Subcontractors List and the Proposed SBE Plan and the Affidavit of Good Faith Efforts, if
applicable, with their bid. Bidders must list (1) all SBE subcontractors regardless of contract value and; (2)
all first tier subcontractors with a contract value at or above $5,000.
The Subcontractors List and Proposed SBE Plan must include:
1.
SBE Firms
a. The name of the SBE firm
b. The trade/industry (scope of work) of the SBE subcontractors/suppliers
c. The dollar value of SBE’s subcontract
d. Include the prime contractor as an SBE, if applicable
i. The dollar value of the prime contractor’s self-performed work if claiming SBE credit
S/Procurement Operations/SBE_DBE/Forms/SBE Provisions
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e. The total dollar value of SBE work performed and percentage of contract value
f. If the contract goal is not met, evidence of good faith efforts.
2.
First Tier Subcontractors with contract value at and above $5,000
a. The name of the Subcontractor
b. The trade/industry (scope of work) the subcontractor will perform on the project
B.
REVIEW OF SBE PLANS
The Procurement Director may determine that the bidder is nonresponsive where the bidder: (1) failed to
provide a completed Subcontractors List and a Statement of Proposed SBE Plan form; (2) failed to identify
SBEs by name, the scope of work and value of work as a percent of the total bid sufficient to meet the
applicable SBE goal for that project; (3) failed to achieve the dollar value of credible participation by certified
SBEs necessary to meet the project goals; or (4) failed to meet the requirements for a waiver of the SBE goal.
C.
PRIME CONTRACTOR REPORTING OF SUBCONTRACTOR UTILIZATION
Prior to commencement of work, the Contractor is required to identify all subcontractors proposed to perform
work on the project utilizing the City of Tucson’s Contract Compliance Reporting System. Prior to contract
closeout, Prime Contractor shall provide subcontractors performance ratings in accordance with Paragraph
IV. Miscellaneous Provisions; C. Contractor Performance Evaluation, below.
III.
GOOD FAITH EFFORT
If the SBE plan does not meet the project goals, the bidder may seek a good faith effort waiver. The
application for a waiver shall be in writing and must be completed and submitted with the bid documents.
The request must indicate whether a complete or partial waiver is sought. If a partial waiver is being sought,
the scope of such waiver must be indicated and an SBE plan must also be submitted. The bidder must provide
documented evidence including a narrative statement with supporting affidavits and/or exhibits verifying the
good faith efforts to meet the goals. Evidence of the good faith efforts shall include, but is not limited to the
following:
a.
Documentation
of
communication
with
the
Department
of
Procurement
seeking
technical/professional assistance identifying available SBE’s.
b.
Copies of written notification to Certified SBE’s regarding subcontracting opportunities on a project.
c.
Documentation of efforts made to select portions of work for SBE subcontracting in order to increase
the likelihood of meeting the SBE goals, including where appropriate breaking down subcontracts
into economically feasible units in order to facilitate SBE participation.
d.
Documentation of efforts to assist and negotiate with SBE’s for specific sub-proposals and reasons
for rejection of any such offer, including the names, addresses, and telephone numbers of SBE’s who
were contacted and reason for the rejection.
e.
As to each SBE contacted which was considered not to be qualified, a written statement of the reasons
for the conclusion.
f.
Written quotes or records of verbal quotes solicited from all SBE’s seeking subcontract work with
bidders at the time of the proposal submittal.
g.
Verification that the offeror rejected available SBE’s because they submitted proposals which were
unreasonably high, or they were not qualified. Such verification shall include a statement of the
amounts of all proposals received from potential Subcontractors and all relevant dates.
The City’s Procurement Director shall review the waiver and approve the waiver where the bidder has
demonstrated good faith efforts or deem the bidder nonresponsive where they failed to meet the good faith
efforts and the bid shall be rejected.
S/Procurement Operations/SBE_DBE/Forms/SBE Provisions
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Right to Appeal Good Faith Effort Waiver or Plan Decision An aggrieved party has a right to protest a
good faith waiver request or plan decision made by the Procurement Director as follows:
1. An aggrieved party may submit a protest in writing to the Procurement Director within five (5) days
from the date of notice of the adverse decision notice. The protest must include the legal and factual
basis for the protest along with any supporting documents.
2. Within five (5) days of receipt of the protest, the Procurement Director shall review the protest and
all relevant supporting documents and render a decision notice in writing which includes the basis
for the decision.
3. The decision of the Director is final and not appealable.
General Waiver or Reduction of SBE Goals The Procurement Director may waive or reduce the project
goals if it is determined that the SBE availability is less than projected. In such circumstances, the
Procurement Director shall certify that SBE’s are not in fact available or that the amount of work, which
occurred under the contract, was insufficient to support the established goals.
The City may waive a project goal, at least in part, if the bidder requesting a waiver receives from all qualified
SBE’s, in one trade or industry, quotes or proposal that exceeds the lowest quote or proposal of a qualified
non-SBE competing for the same work by the lesser of fifteen percent (15%) or two hundred and fifty
thousand dollars ($250,000). In such circumstances, the Procurement Director shall certify that SBE’s are
not ready, willing and able to provide the needed labor and materials at competitive prices.
A bidder may not compare self-performed costs against an SBE subcontractor proposal as justification for
the rejection of a proposal.
The Procurement Director may verify and / or clarify information as it relates to the affidavit of good faith
efforts, and / or the bidders’ subcontractors list and statement of proposed SBE plan.
IV.
MISCELLANEOUS PROVISIONS
A.
SUBCONTRACTOR PERFORMANCE & SUBSTITUTION REQUESTS:
The contractor’s distinct contract items of work to be awarded to SBE’s shall be performed by the designated
SBE. The SBE must perform a commercially useful function, that is, the SBE must manage, perform, and
supervise a distinct element of work.
All subcontractor modifications (addition, substitution, deletion) pursuant to the Tucson Procurement Code
Section 28-48(2), may only be allowed at the sole discretion of the Procurement Director. Approval must be
obtained prior to the subcontractor beginning the work.
In the event that an SBE is unable or unwilling to fulfill its agreement with the contractor, the contractor shall
immediately notify the Procurement Department’s Business Enterprise & Compliance Program, the Contract
Officer and the Project Manager. The SBE firm can only be terminated for good cause. The contractor shall
immediately take reasonable good faith efforts to obtain another certified SBE firm to perform an equal or
greater dollar value of the work. The contractor shall provide all pertinent information regarding the SBE
substitution request including but not limited to:
1. The name of the original SBE firm, the description of work, the dollar value, the reason for the
substitution request and a statement from the original SBE firm explaining why they can’t perform
the work.;
2. The name of the proposed substitute SBE’s, description of proposed work and estimated dollar value
of the work and any relevant information such as a written quote, etc.
SBE contract work items shall not be performed by the contractor in lieu of subcontracting, without obtaining
prior approval as outlined above.
S/Procurement Operations/SBE_DBE/Forms/SBE Provisions
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Contract items eliminated from the project, with the approval of the Project Manager, may not reduce the
contractor’s obligation for SBE participation.
B.
SBE PROGRAM COMPLIANCE
The contractor and all SBE subcontractors must comply with all aspects of the SBE Program. By submitting
a bid to the City of Tucson; bidders bind themselves to make every good faith effort to meet the City’s SBE
goal. The contractor must also include a copy of the SBE contract provisions in every subcontract. An
executed subcontract with all SBE subcontractors shall be completed prior to commencement of work, and
available to the City of Tucson.
Failure by the contractor to comply with the SBE provisions is a material breach of the contract which may
result in remedies as deemed appropriate by the City, including but not limited to the following:
(1) Withholding monthly progress or final payments;
(2) Withholding 10% of future payments;
(3) Contract termination;
(4) Disqualifying the contractor from future bidding as non-responsible.
The contractor must comply with applicable Prompt Payment regulations, Tucson Code Section 11-38 and
Arizona Revised Statutes Title 32-1183. The City of Tucson may withhold payment from the prime
contractor for work performed by subcontractors unless and until the prime contractor ensures that the
subcontractors are promptly paid for the work they have performed.
The prime contractors must provide notice to all subcontractors that complaints of violations of the prompt
payment provision may be submitted in writing to the City of Tucson, Procurement Operations, Business
Enterprise & Compliance Program, 255 W. Alameda, 8th floor Tucson, Arizona 85701 – PO Box 27210,
Tucson, Arizona 85726. The complaint shall set forth the facts and identify the prime contractor and the
construction project. Subcontractors will be assisted by the Department of Procurement, Business Enterprise
& Compliance Program with the complaint process as detailed in the City of Tucson Ordinance No. 9158
comprised of Chapter 28, Tucson Procurement Code Section 28-101, Tucson Code Chapter 11-38 and
Tucson Code, Chapter 8-2.2.
C.
CONTRACTOR PERFORMANCE EVALUATION
At the conclusion of every City of Tucson construction project, the prime contractor is required to provide
subcontractors performance ratings. Reporting will include a section to rate the performance of all project
subcontractors from 1 – 5, based on industry standards. A score of 3 is considered average. A score of 4 or
5 is considered above average. A score of 1 or 2 is considered as poor performance. A rating of 1 or 2 of a
subcontractor will require the prime contractor to complete a Substandard Performance Report documenting
the cause for the substandard performance rating. The City of Tucson Project Manager must concur with all
poor performance ratings.
S/Procurement Operations/SBE_DBE/Forms/SBE Provisions
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BUSINESS SERVICES DEPARTMENT
BUSINESS ENTERPRISE & COMPLIANCE PROGRAM
SUBCONTRACTORS LIST AND STATEMENT OF PROPOSED SBE PLAN
Solicitation/Contract No. _________________
Project Name: _____________________________________________
Enter your SBE subcontractors for this project in the following table per submission requirements contained in the applicable
Tucson Procurement Code Section 28-150(4), 28-150(5) or 28-151.1(3). Any addition, deletion or substitution to the listed SBE
subcontractors requires approval from and is at the sole discretion of the Procurement Director.
ALL PROPOSED SBE FIRMS
Subcontractor’s Name
Trade/Industry
Dollar Value of Contract
Enter your committed subcontractors for this project in the following table per submission requirements contained in Tucson
Procurement Code Section 28-48(2). Any addition, deletion or substitution to the listed subcontractors requires approval from
and is at the discretion of the Procurement Director.
FIRST TIER SUBCONTRACTORS WITH CONTRACTS VALUED AT AND ABOVE $5,000
Subcontractor’s Name
Trade/Industry
Dollar Value of Contract
Bidder’s Base Bid Amount
$
Total Claimed SBE Participation $_________________ _______%
I hereby certify by signing below that the foregoing SBE firms shall be contracted to work on the trades identified above and/or
supply material and/or equipment for this project. The information shown above is a true reflection of the proposed
subcontracts expressed as a percentage of the base bid.
S/Procurement Operations/SBE_DBE/Forms/SBE Provisions
Revised August 2020
Company Name: __________________________________________
Signature: _______________________________________________ Phone No. _____________
Date: _________________
Name & Title: ______________________________________________
S/Procurement Operations/SBE_DBE/Forms/SBE Provisions
Revised August 2020
BUSINESS SERVICES DEPARTMENT
BUSINESS ENTERPRISE & COMPLIANCE PROGRAM
AFFIDAVIT OF GOOD FAITH EFFORTS
SOLICITATION/CONTRACT NO: ________________ PROJECT
NAME:
______________________________________________________________
COMPANY NAME: ____________________________________________________________________
CONTACT NAME:
PHONE NUMBER:
____________________ FAX NUMBER:
WHERE A BIDDER FAILS TO EXERCISE “GOOD FAITH” EFFORTS TO MEET SBE GOALS, AS REQUIRED BY THE CITY OF TUCSON, THE
BIDDER WILL BE DEEMED NONRESPONSIVE.
The intent of this certification is to document the good faith efforts implemented by the apparent low bidder in soliciting and utilizing SBE firms to meet the City of
Tucson’s SBE goal. This certificate will assist the City of Tucson’s Department of Procurement, Business Enterprise & Compliance Program in determining whether
the apparent low bidder has implemented comprehensive good faith efforts. The burden of proof rests with the bidder.
1.
Is a partial or complete waiver being sought? Please explain. Note: If a partial waiver is being sought the scope of such waiver must be indicated and a SBE
Plan must also be submitted.
2. Provide a brief summary of why the SBE goal on this project has not been met. Attach supporting documentation.
3.
Which portions of the contract proposal, in terms of the nature of the work, were selected to be subcontracted to SBE firms? Attach supporting documentation
(e.g. memo, proposal, project breakdown, etc.).
S/Procurement Operations/SBE_DBE/Forms/SBE Provisions
Revised August 2020
Name of Company Contacted
Contact Person
Dates of Contact
Telephone #
Yes ____
No _____
Date of Contact
Contact Person
4.
Which portion of the contract proposal, in terms of suppliers was identified for SBE firms? Attach supporting documentation (e.g. memo, proposal, project
material breakdown etc.).
5. Which SBE firms were solicited in writing for subcontract or supplier quotes/bids? Also, in the appropriate space identify when the firms received subsequent
telephone solicitations. Attach supporting documentation (e.g. copy of written solicitation to SBE firms, along with copies of telephone logs documenting follow-
up communications, etc.).
6.
Was the City of Tucson’s Department of Procurement, Business Enterprise & Compliance Program technical or professional staff contacted for assistance? (Note
that it is the policy of the Department of Procurement to offer technical support to respondents to ensure that all avenues have been exhausted in meeting the SBE
goal.) Attach necessary documentation.
7.
Describe any efforts undertaken to provide SBE firms with information about the project plans, specifications and requirements of the contract.
S/Procurement Operations/SBE_DBE/Forms/SBE Provisions
Revised August 2020
Name of SBE Firm
Explanation for Rejecting Quotes
____________________________________
_______________________________________________
____________________________________
_______________________________________________
____________________________________
_______________________________________________
10. Were any bids from SBE Subcontractors that were no more than 15% or $250,000 greater than the accepted Non-SBE Subcontractor rejected? If so, describe
in detail
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________
8.
Describe any additional efforts undertaken to assist SBE firms (e.g. bonding assistance, lines of credit, etc. ).
9.
Indicate which SBE firms submitted quotes on the contract proposal and provide a brief explanation of the reasons why these quotes were rejected. If price
was a factor provide documentation to show quotes received from non-certified firms.
11.
Describe in detail any supplemental items or efforts which you wish to have the department consider as part of your Good Faith Effort. Attach additional
documentation or sheets for this item.
S/Procurement Operations/SBE_DBE/Forms/SBE Provisions
Revised August 2020
The modification of any subcontractor after contract award requires prior approval by the
Business Services Director
TYPE OF REQUEST
ADDITION
REMOVAL
REPLACEMENT
__________INCREASE
REDUCTION
ARE ANY SBE / DBE FIRMS AFFECTED?
YES
NO If yes, please explain: ___________________________
______________________________________________________________________________________________________
Contract #
Contract Name: _____________________________________________
Prime Contractor:
Contact Name: _______________________________
Email:
Phone: _____________________________________
CURRENT
SUBCONTRACTOR
PROPOSED
SUBCONTRACTOR
SUBCONTRACTOR
NAME
SUBCONTRACT
VALUE
CONTACT NAME
EMAIL
PHONE
ADDRESS
DUNS
Business Enterprise and Compliance Program (BECP)
Subcontractor Modification Form
S/Procurement Operations/SBE_DBE/Forms/SBE Provisions
Revised August 2020
SBE / DBE ?
SBE / DBE
(circle one, if applicable)
SBE / DBE
(circle one, if applicable)
SIGNATURE
By signing below, the Current Subcontractor
indicates their understanding of, and agreement with,
this modification and the explanation provided by
the Prime Contractor in the “Reason for Request”
field on this form:
Signature of Current Subcontractor (required)
REASON FOR REQUEST: (Note: Prime Contractor must explain why the subcontractor that was identified in the Prime Contractor’s
bid is now being modified. Reason must demonstrate that this modification does not violate City of Tucson Ordinance 9158 as well as
Section 28-48(2), Section 28-150(6)(5), Section 28-151.4(1), and Section 28-151.4(2) of the Tucson Procurement Code. The City seeks
to ensure that this request is not being made as a result of “bid shopping” on the part of the Prime Contractor.)
____________________________________________________________________________________________________________
____________________________________________________________________________________________________________
____________________________________________________________________________________________________________
____________________________________________________________________________________________________________
____________________________________________________________________________________________________________
______________________________________________________________________(attach supporting documentation as necessary)
Signature of Prime Contractor:_________________________________
Date: _______________________________
*********************************************COT Use Only*********************************************
APPROVAL
BUSINESS ENTERPRISE
DATE
BUSINESS SERVICES DIRECTOR
DATE
JOB ORDER CONTRACT 212710-02
INSTALLATION, MAINTENANCE, REPAIR OF FIBER/COPPER
NETWORKS
APPENDIX (
DBE PROGRAM PROVISIONS
DBE CONTRACT PROVISIONS
CITY OF TUCSON – DEPARTMENT OF PROCUREMENT
INVITATION FOR BID NO. 212710
Business Enterprise and Compliance
255 W. Alameda, 6th floor
Tucson, Arizona 85701
(520) 837-4000 RESPONSIBLE CONTRACT OFFICER: ANDREW KLOS
DISADVANTAGED BUSINESS ENTERPRISES:
0.0
City of Tucson’s DBE Requirements:
The City of Tucson (COT), in partnership with the Arizona Department of Transportation (hereinafter the
Department), in accordance with the Local Public Agencies Agreement (LPA), is required to utilize the
Department’s Business Engagement and Compliance Office (BECO) procedures, including the utilization of
the LPA Contract Management System. The bidders on this project are required to submit the DBE
Assurances Affidavit (form BECO 302S) with their Bid in order to be considered responsive. Bidders shall
also be required to complete and submit all other required DBE forms, as detailed herein, to be considered
responsive for contract award. The contractor awarded this project shall also participate in the LPA Contract
Management System in accordance with the Department’s policies and procedures. The City of Tucson will
also participate in the requirements of the LPA Contract Management System and will serve as the first point
of contact for the contractors regarding these DBE requirements.
1.0
Policy:
The Department has established a Disadvantaged Business Enterprise (DBE) program in accordance with the
regulations of the U.S. Department of Transportation (USDOT), 49 CFR Part 26. The Department has
received Federal financial assistance from the U.S. Department of Transportation and as a condition of
receiving this assistance, the Department has signed an assurance that it will comply with 49 CFR Part 26.
It is the policy of the Department to ensure that DBEs, as defined in Part 26, have an equal opportunity to
receive and participate in USDOT-assisted contracts. It is also the policy of the Department:
1. To ensure nondiscrimination in the award and administration of USDOT-assisted contracts;
2. To create a level playing field on which DBEs can compete fairly for USDOT-assisted contracts;
3. To ensure that the DBE program is narrowly tailored in accordance with applicable law;
4. To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are counted as
DBEs;
5. To help remove barriers to the participation of DBEs in USDOT-assisted contracts; and
6. To assist in the development of firms that can compete successfully in the market place outside the
DBE program.
Local Public Agencies (LPA) and or Sub-recipients of Federal financial assistance will administer and manage
the contracts from advertising, consultant/contractor selection, negotiation, contract execution, processing
payment reports and contract modifications, audits, DBE compliance (e.g., reporting and monitoring) through
contract closeout.
2.0
Assurances of Non-Discrimination:
The contractor, subrecipient, or subcontractor shall not discriminate on the basis of race, color, sex or national
origin in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR
Part 26 in the award and administration of contracts. Failure by the contractor to carry out these requirements
is a material breach of this contract, which may result in the termination of this contract or such other remedy
as the state deems appropriate. The contractor, subrecipient, or subcontractor shall ensure that all subcontract
agreements contain this non-discrimination assurance.
3.0
Definitions:
(A) Disadvantaged Business Enterprise (DBE): a for-profit small business concern which meets both of
the following requirements:
(1)
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 is owned by one or
more such individuals; and,
(2)
Whose management and daily business operations are controlled by one or more of the socially
and economically disadvantaged individuals who own it.
(B) Socially and Economically Disadvantaged Individuals: any individual who is a citizen (or lawfully
admitted permanent resident) of the United States and who is:
(1)
Any individual who is found to be a socially and economically disadvantaged individual on a
case-by-case basis.
(2)
Any individual in the following groups, members of which are rebuttably presumed to be
socially and economically disadvantaged:
(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, Cuban, 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, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand,
Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of
the Pacific Islands (Republic of Palau), the Commonwealth of the Northern Marianas
Islands, Macao, Fiji, Tonga, Kiribati, Tuvalu, Nauru, Federated States of Micronesia, or
Hong Kong;
(v)
“Subcontinent Asian Americans,” which includes persons whose origins are from India,
Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka;
(vi)
"Women;"
(vii)
Any additional groups whose members are designated as socially and economically
disadvantaged by the Small Business Administration (SBA), at such time as the SBA
designation becomes effective.
(C) Joint Venture: an association of a DBE firm and one or more other firms to carry out a single, for-
profit business enterprise, for which parties combine their property, capital, efforts, skills and
knowledge, and in which the DBE is responsible for a distinct, clearly defined portion of the work of
the contract and whose share in the capital contribution, control, management, risks, and profits of the
joint venture are commensurate with its ownership interest.
(D) Non-DBE: any firm that is not a DBE.
(E) RACE-CONSCIOUS: a measure or program is one that is focused specifically on assisting only
DBEs, including women-owned DBEs.
(F) RACE-NEUTRAL: a measure or program is one that is, or can be, used to assist all small businesses.
For the purposes of this part, race-neutral includes gender-neutrality.
4.0
Working with DBEs:
The Department works with DBEs and assists them in their efforts to participate in the highway construction
program. All bidders should contact the City of Tucson – Department of Procurement Business Enterprise
and/or the ADOT Business Engagement and Compliance Office as provided for below for assistance in their
efforts to use DBEs in the construction program of the Department:
City of Tucson - Department of Procurement
Business Enterprise and Compliance
255 W. Alameda, 6th floor
Tucson, Arizona 85701
Phone (520) 791-4593
FAX (520) 791-5140
Arizona Department of Transportation
Business Engagement and Compliance Office
1135 N. 22nd Avenue (second floor), Mail Drop 154A
Phoenix, AZ 85009
Phone (602) 712-7761
FAX (602) 712-8429
5.0
Applicability:
The Department has established an overall annual goal for DBE participation on Federal-aid contracts. The
Department intends for the goal to be met with a combination of race conscious efforts and race neutral efforts.
Race conscious participation occurs where the contractor uses a percentage of DBEs, as defined herein, to
meet the contract-specified goal. Race neutral efforts are those that are, or can be, used to assist all small
businesses or increase opportunities for all small businesses. The regulation, 49 CFR 26, defines race neutral
as when a DBE wins a prime contract, is awarded a subcontract on a project without DBE goals, and is
awarded a subcontract from a prime contractor that did not consider the firm’s DBE status.
The contractor shall meet the goal specified herein with DBEs, or establish that it was unable to meet the goal
despite making good faith efforts to do so. Prime contractors are encouraged to obtain DBE participation
above and beyond any goals that may be set for this project.
The provisions are applicable to all bidders including DBE bidders.
6.0
Certification:
Certification as a DBE shall be predicated on:
(1) The completion and execution of an application for certification as a "Disadvantaged Business
Enterprise".
(2) The submission of documents pertaining to the firm(s) as stated in the application(s), including but not
limited to a statement of social disadvantage and a personal financial statement.
(3) The submission of any additional information which the Department or City of Tucson may require to
determine the firm's eligibility to participate in the DBE program.
(4) The information obtained during the on-site visits to the offices of the firm and to active job-sites.
Applications for certification may be filed with the Department or the City of Tucson – Department of
Procurement Business Enterprise and Compliance at any time. Assistance is available at Business Enterprise and
Compliance, 255 W. Alameda, 6th Fl., Tucson, Arizona 85701, (520) 837-4000 at any time. Both hardcopy
submission and online submission is available.
For hardcopy submissions, applications for certification are available at the Department's Business Engagement
and Compliance Office, 1135 N. 22nd Avenue (second floor), mail drop 154A, Phoenix, Arizona 85009, phone
(602) 712-7761. Hardcopy applications may also be obtained through the internet at www.azdbe.org. Hardcopy
applications must be filed through the Business Engagement and Compliance Office at the above address.
For online submissions, the online application process may be accessed through the internet at www.azdbe.org.
DBE firms and firms seeking DBE certification shall cooperate fully with requests for information relevant to
the certification process. Failure or refusal to provide such information is a ground for denial or removal of
certification.
Arizona is a member of the AZ Unified Certification Program (AZUCP). Only DBE firms that are certified by
the AZUCP are eligible for credit on ADOT projects. A list of DBE firms certified by AZUCP is available on
the internet at www.azdbe.org. The list will indicate contact information and specialty for each DBE firm, and
may be sorted in a variety of ways. However, ADOT does not guarantee the accuracy and/or completeness of
this information, nor does ADOT represent that any licenses or registrations are appropriate for the work to be
done.
The Department’s certification is not a representation of qualifications and/or abilities. The contractor bears all
risks that the firm may not be able to perform its work for any reason.
7.0
General:
Each contractor shall establish a program that will ensure nondiscrimination in the award and administration of
contracts and subcontracts.
Each contractor shall also designate a full time employee who shall be responsible for the administration of the
contractor's DBE program.
Agreements between the bidder and a DBE in which the DBE promises not to provide subcontracting quotations
to other bidders are prohibited.
8.0
DBE Subcontractor Payment Reporting:
The Department is required to collect data on DBE and non-DBE participation to report to FHWA on Federal-aid
projects. The contractor is notified that such record keeping is required by the Department for tracking DBE
participation.
The contractor shall submit a report on a monthly basis indicating the amounts earned by and paid to all DBEs
and non-DBEs working on the project. In addition, the contractor shall require that all DBE and non-DBE
subcontractors verify receipt of payment.
The contractor shall provide all such required information for the current month by the 5th of the following
month. The required information shall be submitted electronically through the Department’s web-based
payment tracking system (https://arizonalpa.dbesystem.com).
9.0
Goals:
The minimum goal for participation by DBEs on this project is as follows:
5.67 Percent
The percentage of DBE participation shall be based on the total bid.
10.0
Crediting DBE Participation Toward Meeting Goals:
10.01
General Requirements:
Only the value of the work actually performed by the DBE can be credited toward DBE participation. Credit
towards the contractor’s DBE goal is given only after the DBE has been paid for the work performed.
The contractor bears the responsibility to determine whether the DBE possesses the proper contractor’s license(s)
to perform the work. If a DBE cannot complete its work due to failure to obtain or maintain its licensing, the
contractor bears the responsibility to immediately request approval to replace the DBE with another DBE and
notify the Engineer and the Business Engagement and Compliance Office.
The Department’s certification is not a representation of qualifications and/or abilities. The contractor bears all
risks that the DBE may not be able to perform its work for any reason.
A DBE may participate as a prime contractor, subcontractor, joint venture partner with either a prime contractor
or a subcontractor, or as a vendor of materials or supplies. A DBE joint venture partner shall be responsible for a
clearly defined portion of the work to be performed, in addition to meeting the requirements for ownership and
control.
The dollar amount of work to be accomplished by DBEs, including partial amount of a lump sum or other similar
item, shall be on the basis of subcontract, purchase order, hourly rate, rate per ton, etc., as agreed to between
parties.
With the exception of bond premiums, all work must be attributed to specific bid items. Where work applies to
several items, the DBE contracting arrangement must specify unit price and amount attributable to each bid item.
DBE credit for any individual item of work performed by the DBE shall be the lesser of the amount to be paid to
the DBE or the prime contractor's bid price. If the amount bid by the DBE on any item exceeds the prime
contractor’s bid amount, the prime contractor may not obtain credit by attributing the excess to other items.
Where more than one DBE is engaged to perform parts of an item (for example, supply and installation), the total
amount payable to the DBEs will not be considered in excess of the prime contractor’s bid amount for that item.
Bond premiums may be stated separately, so long as the arrangement between the prime contractor and the DBE
provides for separate payment not to exceed the price charged by the bonding company.
DBE credit may be obtained only for specific work done for the project, supply of equipment specifically for
physical work on the project, or supply of materials to be incorporated in the work. DBE credit will not be
allowed for costs such as overhead items, capital expenditures (for example, purchase of equipment), and office
items.
If a DBE performs part of an item (for example, installation of materials purchased by a Non-DBE), the DBE
credit shall not exceed the lesser of (1) the DBE’s contract or (2) the prime contractor’s bid for the item, less a
reasonable deduction for the portion performed by the Non-DBE.
When a DBE performs as a partner in a joint venture, only that portion of the total dollar value of the contract
which is clearly and distinctly performed by the DBE's own forces can be credited toward the DBE goal.
The contractor may credit second-tier subcontracts issued to DBEs by non-DBE subcontractors. Any second-tier
subcontract to a DBE used to meet the goal must meet the requirements of a first-tier DBE subcontract.
All DBE and non-DBE subcontracting activity must be reported by the contractor and counted toward
participation. This includes lower-tier subcontracting regardless of whether or not the DBE is under contract
with another DBE.
DBE prime contractors must meet the DBE participation goal or demonstrate good faith efforts. This is
determined by counting the work the DBE has committed to performing with its own forces, as well as the work
that it has committed to be performed by DBE subcontractors and DBE suppliers.
A prime contractor may credit the entire amount of that portion of a construction contract that is performed by
the DBE’s own forces. The cost of supplies and materials obtained by the DBE for the work of the contract
can be included so long as that cost is reasonable. Leased equipment may also be included. No credit is
permitted for supplies purchased or equipment leased from the prime contractor or its affiliate(s).
When a DBE subcontracts a part of the work of its contract to another firm, the value of the subcontract may
be credited towards the DBE goal only if the DBE’s subcontractor is itself a DBE and performs the work with
its own forces. Work that a DBE subcontracts to a non-DBE firm does not count toward a DBE goal.
A prime contractor may credit the entire amount of fees or commissions charged by a DBE firm for providing
a bona fide service, such as professional, technical, consultant, or managerial services, or for providing bonds
or insurance specifically required for the performance of a USDOT-assisted contract, provided the fees are
reasonable and not excessive as compared with fees customarily allowed for similar services.
10.02
Police Officers:
DBE credit will not be permitted for procuring public safety officers. For projects on which officers from
other agencies are supplied, DBE credit will be given only for the broker fees charged, and will not include
amounts paid to the officers. The broker fees must be reasonable.
10.03
Commercially Useful Function:
As a prime contractor, a DBE shall perform a significant portion of the contract work with its own work force in
accordance with normal industry practices and Subsection 108.01 - Subletting of Contract of the Standard
Specifications.
A prime contractor can credit expenditures to a DBE subcontractor toward DBE goals only if the DBE
performs a commercially useful function on the contract. A DBE performs a commercially useful function
when it is responsible for execution of the work of a contract and is carrying out its responsibilities by actually
performing, managing, and supervising the work involved. To perform a commercially useful function, the
DBE must also be responsible, with respect to materials and supplies on the contract, for negotiating price,
determining quality and quantity, ordering the material, and installing (where applicable) and paying for the
material itself. To determine whether a DBE is performing a commercially useful function, the Department
will evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid
under the contract is commensurate with the work it is actually performing and the DBE credit claimed for its
performance of the work, and other relevant factors.
A DBE will not be considered to perform a commercially useful function if its role is limited to that of an extra
participant in a transaction, contract, or project through which funds are passed in order to obtain the
appearance of DBE participation. In determining whether a DBE is such an extra participant, the Department
will examine similar transactions, particularly those in which DBEs do not participate.
If a DBE does not perform or exercise responsibility for at least 30 percent of the total cost of its contract with
its own work force, or if the DBE subcontracts a greater portion of the work of a contract than would be
expected on the basis of normal industry practice for the type of work involved, the Department will presume
that the DBE is not performing a commercially useful function.
When a DBE is presumed not to be performing a commercially useful function as provided above, the DBE
may present evidence to rebut this presumption. Decisions on commercially useful function matters are
subject to review by FHWA, but are not administratively appealable to USDOT.
10.04
Trucking:
The City of Tucson will use the following factors in determining whether a DBE trucking company is
performing a commercially useful function. The DBE must be responsible for the management and
supervision of the entire trucking operation for which it is responsible on a particular contract, and there
cannot be a contrived arrangement for the purpose of meeting DBE goals.
The DBE must itself own and operate at least one fully licensed, insured, and operational truck used on the
contract on every day that credit is to be given for trucking.
The contractor will receive credit for the total value of transportation services provided by the DBE using
trucks it owns, insures and operates, and using drivers it employs.
The DBE may lease trucks from another DBE firm, including an owner-operator who is certified as a DBE.
The DBE who leases trucks from another DBE receives credit for the total value of the transportation services.
The DBE may also lease trucks from a non-DBE firm, including an owner-operator. The DBE who leases
trucks from a non-DBE is entitled to credit for the total value of the transportation services provided by non-
DBE lessees not to exceed the value of transportation services provided by DBE-owned trucks on the contract.
Additional participation by non-DBE lessees results in credit only for the fee or commission paid to the DBE
as a result of the lease agreement.
Example: DBE Firm X uses two of its own trucks on contract. It leases two trucks from DBE Firm Y and six
trucks from non-DBE firm Z. DBE credit would only be awarded for the total value of transportation services
provided by Firm X and Firm Y, and may also be awarded for the total value of transportation services
provided by four of the six trucks provided by Firm Z. In all, full credit would be allowed for the participation
of eight trucks. With respect to the other two trucks provided by Firm Z, DBE credit could be awarded only
for the fees or commissions pertaining to those trucks Firm X receives as a result of the lease with Firm Z.
10.05
Materials and Supplies:
The City of Tucson will credit expenditures with DBEs for material and supplies towards the DBE goal as
follows. If the materials or supplies are obtained from a DBE manufacturer, 100 percent of the cost of the
materials or supplies is credited. A manufacturer is defined as a firm that operates or maintains a factory or
establishment that produces, on the premises, the materials, supplies, articles, or equipment required under the
contract, and of the general character described by the specifications.
If the materials or supplies are purchased from a DBE regular dealer, 60 percent of the cost of the materials or
supplies is credited. A DBE regular dealer is defined as a firm that owns, operates, or maintains a store or
warehouse or other establishment in which the materials, supplies, articles, or equipment of the general
character described by the specifications and required under the contract are bought, kept in stock, and
regularly sold or leased to the public in the usual course of business. To be a regular dealer, the firm must be
an established, regular business that engages, as its principal business and under its own name, in the purchase
and sale or lease of the products in question. A firm may be a DBE regular dealer in such bulk items as
petroleum products, steel, cement, stone or asphalt without owning, operating, or maintaining a place of
business, as provided above, if the person both owns and operates distribution equipment for the products.
Any supplementing of regular dealers’ own distribution equipment shall be by a long-term lease agreement,
and not on an ad-hoc or contract-by-contract basis. Packagers, brokers, manufacturers’ representatives, or
other persons who arrange or expedite transactions are not regular dealers within the meaning of this paragraph
and the paragraph above.
With respect to materials or supplies purchased from a DBE which is neither a manufacturer nor a regular
dealer, the City of Tucson will credit the entire amount of the fees or commissions charged by the DBE for
assistance in the procurement of the materials and supplies, or fees or transportation charges for the delivery of
materials or supplies required on a job site, toward DBE goals, provided the fees are determined to be
reasonable and not excessive as compared with fees customarily allowed for similar services. The cost of the
materials and supplies themselves may not be counted toward the DBE goal.
DBE credit for supplying paving grade asphalt and other asphalt products will only be permitted for standard
industry hauling costs, and only if the DBE is owner or lessee of the equipment and trucks. Leases for trucks
must be long term (extending for a fixed time period and not related to time for contract performance) and
must include all attendant responsibilities such as insurance, titling, hazardous waste requirements, and
payment of drivers.
11.0
Joint Checks:
11.01
Requirements:
A DBE subcontractor and a material supplier (or equipment supplier) may request permission for the use of
joint checks for payments from the prime contractor to the DBE subcontractor and the supplier. Joint checks
may be issued only if all the conditions in this subsection are met.
1. The DBE subcontractor must be independent from the prime contractor and the supplier, and must
perform a commercially useful function. The DBE subcontractor must be responsible for negotiating
the price of the material, determining quality and quantity, ordering the materials, installing (where
applicable), and paying for the material. The DBE subcontractor may not be utilized as an extra
participant in a transaction, contract, or project in order to obtain the appearance of DBE participation.
2. The use of joint checks will be allowed only if the prime contractor, DBE subcontractor, and material
supplier establish that the use of joint checks in similar transactions is a commonly recognized
business practice in the industry, particularly with respect to similar transactions in which DBE’s do
not participate.
3. A material or supply contract may not bear an excessive ratio relative to the DBE subcontractor’s
normal capacity.
4. There may not be any exclusive arrangement between one prime and one DBE in the use of joint
checks that may bring into question whether the DBE is independent of the prime contractor.
5. Any arrangement for joint checks must be in writing, and for a specific term (for example, one year, or
a specified number of months) that does not exceed a reasonable time to establish a suitable credit line
with the supplier.
6. The prime contractor may act solely as the payer of the joint check, and may not have responsibility
for establishing the terms of the agreement between the DBE subcontractor and the supplier.
7. The DBE must be responsible for receiving the check from the prime contractor and delivering the
check to the supplier.
8. The prime contractor cannot require the DBE subcontractor to use a specific supplier, and the prime
contractor may not participate in the negotiation of unit prices between the DBE subcontractor and the
supplier.
11.02
Procedure and Compliance:
1. The City of Tucson Department of Procurement Business Enterprise and Compliance must approve
the agreement for the use of joint checks in writing.
2. After obtaining authorization for the use of joint checks, the prime contractor, the DBE, and the
supplier must retain documentation to allow for efficient monitoring of the agreement.
3. Copies of canceled checks must be submitted with the payment information for the period in which the
joint check was issued. Certificates of payment must indicate whether or not joint checks were used.
4. The prime contractor, DBE, and supplier each have an independent duty to report to the City of
Tucson Department of Procurement Business Enterprise and Compliance in the case of any change
from the approved joint check arrangement.
5. Any failure to comply will be considered by the City of Tucson Department of Procurement Business
Enterprise and Compliance to be a material breach of this contract and will subject the prime
contractor, DBE, and supplier to contract remedies and, in the case of serious violations, a potential for
termination of the contract, reduction or loss of prequalification, debarment, or other remedies which
may prevent future participation by the offending party.
12.0
Submission with Bids:
All bidders are required to certify in their bid proposal on the “Disadvantaged Business Enterprise
Assurances” certificate (BECO Form 302S) either:
(1)
The established goal for DBE participation has been met and arrangements have been made
at the time of bid with certified DBEs or
(2)
The bidder has been unable to meet the goal prior to the submission of the bid and has made
good faith efforts to do so.
BIDS SUBMITTED WITH ALTERED, INCOMPLETE, OR UNSIGNED CERTIFICATES WILL BE
CONSIDERED NON-RESPONSIVE.
Certifications on forms other than those furnished by the City of Tucson Department of Procurement Business
Enterprise and Compliance will be considered non-responsive.
13.0
Bidder Meeting DBE Goal:
13.01
General:
If the bidder indicates in the bid that it has met or exceeded the DBE goal, the DBE Intended Participation
Affidavit, (BECO Form 305S) its attachments, and a written confirmation from each DBE (BECO Form 304S)
that it is participating in the contract as provided on the affidavit, shall be submitted as follows:
(1)
The DBE Intended Participation Affidavit, its attachments, and the confirmations must be
received by the City of Tucson Department of Procurement no later than 4:00 P.M. on the fifth
working day following the bid opening. Copies of this affidavit and the attachments are available
from the Department's Business Engagement and Compliance Office, 1135 N. 22nd Avenue (second
floor), mail drop 154A, Phoenix, Arizona 85009, phone (602) 712-7761, or on the internet at:
http://azdot.gov/docs/default-source/beco-library/fhwa-subrecipient-and-lpa-compliance-
checklist.pdf?sfvrsn=2
This affidavit and its attachments shall indicate that the bidder has met or exceeded the DBE goal if
this was indicated on the submittal with the bid.
(2)
The affidavit and attachments must be accurate and complete in every detail and must be
signed by an officer of the contractor(s).
(3)
The DBE Intended Participation affidavit must be submitted listing the DBEs used and the
creditable amounts.
(4)
A separate DBE Intended Participation affidavit attachment must be submitted for each DBE
used to meet the goal of the project. The bidder shall indicate each DBE's name, the bid items the
DBE will perform, and proposed subcontract amount. All partial items must be explained. If not, the
DBE will be considered to be responsible for the entire item.
(5)
A written confirmation from each DBE used to meet the goal indicating that it is participating
in the contract, as provided on the affidavit, must also be submitted at this time.
(6)
A bidder must determine DBE credit in accordance with Section 10 above, entitled
“Crediting DBE Participation Toward Meeting Goals.” The affidavit will be reviewed by the City of
Tucson Department of Procurement Business Enterprise and Compliance.
(7)
Only those DBE firms certified by the Arizona Unified Certification Program (AZUCP) at
the time of the bid opening will be considered. It shall be the bidder’s responsibility to ascertain the
certification status of designated DBEs.
(8)
The bidder bears the risk of late delivery by the postal service or a delivery service. Late-
filed affidavits will not be accepted.
13.02
Failure to Comply:
If the apparent low bidder fails to submit the required information by the stated time and in the manner herein
specified, or if the submitted information reveals a failure to meet the requirements of the specifications, the
apparent low bidder shall be ineligible to receive award of the contract and the bid will be rejected. The
proposal guarantee (bid bond) shall be forfeited if no submission is made or if the City of Tucson finds the
submission was made in bad faith.
14.0
Documented Good Faith Effort:
14.01
General:
If the apparent low bidder has stated in its bid proposal that it has been unable to meet the DBE goal, that
bidder must demonstrate, through detailed and comprehensive documentation, that good faith efforts have
been made to solicit, assist, and use DBE firms to meet the DBE goal prior to the bid. The bidder cannot
change its bid proposal after submission.
Failure to demonstrate good faith efforts to the satisfaction of the City of Tucson and/or ADOT will result in the
rejection of the bid.
The apparent low bidder who cannot meet the DBE goal at the time bids are opened must submit its
documentation of good faith effort to the City of Tucson’s Procurement Office. The bidder’s documentation
must be received by the City of Tucson’s Procurement Office by 4:00 P.M. on the fifth working day after the
bids are opened.
Bidders are encouraged to review Appendix A of 49 CFR Part 26.
http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title49/49cfr26_main_02.tpl
In order to be awarded a contract on the basis of good faith efforts, a bidder must show that it took all
necessary and reasonable steps to achieve the DBE goal which, by their scope, intensity, and appropriateness
to the objective, could reasonably be expected to obtain sufficient DBE participation, even if they were not
fully successful. The City of Tucson Department of Procurement Business Enterprise and Compliance will
consider the quality, quantity, and intensity of the different kinds of efforts the bidder has made. The efforts
employed by the bidder should be those that one could reasonably expect a bidder to make if the bidder were
actively and aggressively trying to obtain DBE participation sufficient to meet the DBE goal. Mere pro forma
efforts are not sufficient good faith efforts to meet the DBE contract requirements.
The contractor shall, as a minimum, seek DBEs in the same geographic area in which it generally seeks
subcontractors for a given project. If the contractor cannot meet the goals using DBEs from this geographic area,
the contractor, as part of its effort to meet the goals, shall expand its search to a reasonably wider geographic
area.
The following is a list of types of efforts a bidder must address when submitting good faith effort
documentation.
(1) Soliciting through all reasonable and available means (e.g., attendance at pre-bid meeting, advertising,
written notices, and other means) the interest of all certified DBEs who have the capability to perform
the work of the contract. The bidder must solicit this interest within sufficient time to allow DBEs to
respond to the solicitation. The bidder must determine with certainty if the DBEs are interested by
taking appropriate steps to follow-up initial solicitations.
(2) Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the
DBE goals will be achieved. This includes, where appropriate, breaking out contract work items into
economically feasible units to facilitate DBE participation, even when the prime contractor might
otherwise prefer to perform these work items with its own forces.
(3) Providing interested DBEs with adequate information about the plans, specifications, and
requirements of the contract in a timely manner to assist them in responding to a solicitation.
(4) Negotiating in good faith with interested DBEs. It is the bidder’s responsibility to make a portion of
the work available to the DBE subcontractors and suppliers, and to select those portions of work or
material needs consistent with the available DBE subcontractors and suppliers, so as to facilitate DBE
participation. Evidence of such negotiation includes the names, addresses, and telephone numbers of
DBEs that were considered; a description of the information provided from the plans and
specifications for the work selected for subcontracting; and evidence as to why additional agreements
could not be reached for DBEs to perform work.
A bidder using good business judgment would consider a number of factors in negotiating with
subcontractors, including DBE subcontractors, and would take a firm’s price and capabilities as well
as contract goals into consideration. However, the fact that there may be some additional costs
involved in finding and using DBEs is not in itself sufficient reason for a bidder’s failure to meet the
DBE goal, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to
perform the work of a contract with its own organization does not relieve the bidder of the
responsibility to make good faith efforts. However, prime contractors are not required to accept higher
quotes from DBEs if the price difference is excessive or unreasonable. Documentation, such as copies
of all other bids or quotes, must be submitted.
(5) Not rejecting DBEs as being unqualified without sound reasons based on a thorough investigation of
their capabilities. The contractor’s standing within its industry, membership in specific groups,
organizations or associations and political or social affiliations (for example, union vs. non-union
employee status) are not legitimate causes for the rejection or non-solicitation of bids in the
contractor’s efforts to meet the project goal.
(6) Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required
by the recipient or contractor.
(7) Making efforts to assist interested DBEs in obtaining necessary equipment supplies, materials, or
related assistance or services.
(8) Effectively
using
the
services
of
available
minority/women
community
organizations;
minority/women contractors’ groups; local, state, and Federal minority/women business assistance
offices; and other organizations as allowed on a case-by-case basis to provide assistance in the
recruitment and placement of DBEs.
In determining whether a bidder has made good faith efforts, the City of Tucson Department of Procurement
Business Enterprise and Compliance and the Department will take into account the ability of other bidders to
meet the DBE goal.
The bidder will not be considered to have made good faith efforts if the bidder failed to contact the City of
Tucson Department of Procurement Business Enterprise and Compliance prior to the letting, either in writing,
by e-mail, or by telephone, to inform the City of Tucson Department of Procurement Business Enterprise and
Compliance and the ADOT Business Engagement and Compliance Office of the firm’s difficulty in meeting
the DBE goals on a given project, and to request assistance. If the bidder contacts the City of Tucson
Department of Procurement Business Enterprise and Compliance and the ADOT Business Engagement and
Compliance Office by telephone, the contact must be documented in a telephone log indicating the date and
time of call, and name of the person to which he spoke. The telephone number for the City of Tucson
Department of Procurement Business Enterprise and Compliance is (520) 837-4000 and the ADOT Business
Engagement and Compliance Office is (602) 712-7761. The contact must be made in sufficient time to allow
the ADOT Business Engagement and Compliance Office to provide assistance.
The City of Tucson Department of Procurement Business Enterprise and Compliance will analyze the
submittal to determine if in fact good faith efforts have been demonstrated consistent with ADOT procedures
and the Federal regulations, 49 CFR 26, Appendix A and will forward their recommendation to ADOT
Business Engagement and Compliance Office for determination.
The bidder may appeal the determination of the City of Tucson Department of Procurement Business Enterprise
and Compliance and the ADOT Business Engagement and Compliance Office to the State Engineer. That
appeal must be in writing and personally delivered or sent by certified mail, return receipt requested, to the
State Engineer. The protest must be received by the State Engineer no later than seven calendar days after the
decision of the City of Tucson Department of Procurement Business Enterprise and Compliance and the
ADOT Business Engagement and Compliance Office. Copies of the protest shall be sent by the protestant to
every bidder, at the same time the protest is submitted to the State Engineer. Any other interested party may
submit a response to the appeal no later than seven calendar days after the appeal is requested. Responses from
other interested parties must also be in writing and personally delivered or sent by certified mail, return receipt
requested, to the State Engineer. Any interested party submitting such response shall also provide a copy of its
response to every bidder, at the same time the protest is submitted to the State Engineer. The State Engineer
shall promptly consider any appeals under this subsection and notify all bidders of the State Engineer’s findings
and decision.
Any interested party may protest the State Engineer’s decision to the State Transportation Board, pursuant to the
requirements of Subsection 103.10 of the Standard Specifications.
14.02
Failure to Comply:
If the apparent low bidder fails to submit the required information by the stated time and in the manner herein
specified, or if the submitted information reveals a failure to meet the requirements of the specifications, the
apparent low bidder shall be ineligible to receive award of the contract and the bid will be rejected. The
proposal guarantee (bid bond) shall be forfeited if no submission is made or if the State Transportation Board
finds the submission was made in bad faith.
15.0
Rejection of Low Bid:
If, for any reason, the bid of the apparent low bidder is rejected, there will be a new apparent low bidder. The
Agency will notify the new apparent low bidder, and this bidder shall submit its subsequent detailed
submission as set forth in paragraph 12 or 13 above.
16.0
Time is of the Essence:
TIME IS OF THE ESSENCE IN RESPECT TO THE DBE PROVISIONS.
17.0
Contract Performance:
Contract items of work designated by the contractor to be awarded to DBEs shall be performed by the
designated DBE or a Department-approved DBE substitute. DBE contract work items shall not be performed
by the contractor, or a non-DBE subcontractor without prior approval by the City of Tucson Department of
Procurement Business Enterprise and Compliance and the ADOT Business Engagement and Compliance
Office. The DBE must perform a commercially useful function; that is, the DBE must manage, perform, and
supervise a distinct element of work.
The City of Tucson and the Department reserves the right to inspect all records of the contractor and all
records of the DBEs concerning this contract.
The contractor shall provide to the Engineer, at the pre-construction conference, copies of completed and
signed subcontracts purchase orders, invoices, etc., with the appropriate DBEs.
Within five working days of the preconstruction conference, the contractor shall also provide electronic copies
of signed subcontract agreements to the Agency through the Department’s web-based payment tracking
system (https://arizonalpa.dbesystem.com). As part of this submittal, contractors shall be required to log into
the system and enter the name, contact information, and subcontract amounts for all subcontractors and
vendors performing on the project as verification that scopes of services and commitments made through the
DBE Intended Participation Affidavits are being met.
Subcontract agreements shall include all required assurances, including FHWA Form 1273, and the prompt
payment and return of retention requirements specified in Subsection 109-7 of the Special Provisions. Each
page of each required attachment must be dated and initialed by the DBE in order for the subcontract to be
considered valid. Contractors executing agreements with subcontractors, DBE or non-DBE, that materially
modify federal regulation and state statutes, or prompt payment and retention requirements, through
subcontract terms and conditions will be found in breach of contract which may result in termination of the
contract, or any other such remedy as the Engineer deems appropriate.
Use of a DBE named on the DBE Intended Participation Affidavit is a condition of award. Substitution will
not be allowed without written evidence from the prime contractor and DBE that the DBE is unable or
unwilling to perform. Contractors may not terminate a DBE subcontract for convenience, in whole or in part,
except to the extent that the Agency has eliminated items of work subcontracted to the DBE. All terminations,
substitutions, and reductions in scope must be approved by the City of Tucson Department of Procurement
Business Enterprise and Compliance.
18.0
Non-Performance by DBEs:
In the event a DBE is unable or unwilling to fulfill its agreement with the contractor, the contractor will
immediately notify the Engineer and provide all facts surrounding the matter. Such failure on the part of a
DBE will not relieve the contractor of responsibility for meeting the DBE goal on the contract. The contractor
shall immediately make reasonable good faith efforts to obtain another certified DBE to perform an equal or
greater dollar value of work to the extent needed to meet the DBE goal. The substitute DBE's name,
description of work, and dollar value of work shall be submitted to the Engineer and the City of Tucson
Department of Procurement Business Enterprise and Compliance. Approval of the City of Tucson Department
of Procurement Business Enterprise and Compliance must be obtained prior to the substitute DBE beginning
work.
In the event a prime contractor is unable, after a substantial good faith effort, to obtain another certified DBE,
the City of Tucson Office of Equal Opportunity Programs may lower the DBE goal on the project. However,
the City of Tucson Department of Procurement Business Enterprise and Compliance must approve this in
writing prior to a Non-DBE starting the work which had been subcontracted to the DBE.
19.0
Compliance:
The contractor’s achievement of the goal is measured by actual payments made to the DBEs. The contractor
shall submit at the completion of the project the “Certification of Payments to DBE Firms” affidavit for each
DBE firm working on the project. This affidavit shall be signed by the prime contractor and the relevant DBE,
and submitted to the City of Tucson Department of Procurement Business Enterprise and Compliance.
At that time, a copy of each completed affidavit shall also be submitted to the Engineer.
Acceptance and final payment to the contractor, in accordance with Standard Specification Subsections 105-17
and 109-11, as may be amended herein, will not be made until all “Certification of Payments to DBE Firms”
affidavits are received and deemed acceptable by the Engineer and the City of Tucson Department of
Procurement Business Enterprise and Compliance.
20.0
Sanctions:
If the City of Tucson Department of Procurement Business Enterprise and Compliance determines that the
contractor has failed to make sufficient reasonable efforts to meet contract DBE goals, or to otherwise carry
out these DBE special provisions, such failure shall constitute a breach of contract and may result in
termination of the contract, or any other such remedy as the City of Tucson Department of Procurement
Business Enterprise and Compliance deems appropriate.
If the City of Tucson Department of Procurement Business Enterprise and Compliance determines that such
failure is not cause to terminate the contract, an amount equal to the value of the DBE goal that was not
obtained will be deducted from the payment due the contractor. However, if the failure is the first by the
contractor, and the City of Tucson Department of Procurement Business Enterprise and Compliance
determines the failure was an unintentional error or oversight, the amount to be deducted may be reduced up to
one-half (1/2) of the value of the unobtained DBE goal. In addition to any other sanctions, willful failure of
the contractor or a DBE to comply with this contract or with the Federal DBE regulations may result in
disqualification from further contracting, subcontracting, or other participation in COT projects.
MENTOR-PROTEGE PROGRAM
DESCRIPTION
Purpose:
The Mentor-Protege program is an initiative to encourage and develop disadvantaged businesses in the highway
construction industry. The program will permit contractors to provide certain types of assistance to certified
Disadvantaged Business Enterprise (DBE) subcontractors on highway construction projects.
The program is intended to increase legitimate DBE activities and is not intended to diminish nor circumvent
existing DBE rules or regulations. Abuse of this program may be used as the basis for actions against both
categories of firms including suspension or debarment.
Policy:
It is the policy of the City of Tucson (COT) and ADOT that contractors and certified DBE subcontractors may
engage in a Mentor-Protege agreement under certain conditions. Such an agreement must be mutually beneficial
to both parties and COT/ADOT in fulfilling requirements of 49 Code of Federal Regulations Part 23.
Definitions:
DBE: The definition, status, and requirements of DBE firms are defined by 49 CFR Part 23. Please also
refer to the special provision entitled "Disadvantaged Business Enterprises".
Mentor: A designated contractor who oversees the development of a designated DBE subcontractor by
training, counseling, assisting, and sponsoring the DBE firm in an ADOT approved Mentor-Protege
Program.
Protege: An ADOT-certified DBE subcontractor who is guided by a mentor through training and
specialized assistance to gain experience, develop expertise in highway construction, and attain general
business growth in an approved Mentor-Protege program.
Mentor-Protege Development Plan: A detailed plan outlining a management agreement between a
contractor (who agrees to serve as a mentor) and a DBE subcontractor (who agrees to serve as a protege).
IMPLEMENTATION
Approval Process:
(1)
When a contractor and DBE agree to engage in a Mentor-Protege Development Plan
Agreement, the City of Tucson Department of Procurement Business Enterprise and
Compliance will be notified by either party for the purpose of (a) reviewing requirements of
STAA, 49 CFR part 23, and Mentor-Protege program; (b) establishing timeline for
processing Agreement; (c) preliminary review of Agreement objective(s) and duration; and
(d) reporting requirements. (A copy of the suggested form of agreement is included in these
special provisions).
(2)
A completed Mentor-Protege Development Plan will be submitted to the City of Tucson
Department of Procurement Business Enterprise and Compliance within 30 days
following the initial review. Approval of the Agreement by the City of Tucson Department
of Procurement Business Enterprise and Compliance:
a)
General approval of Agreement by the City of Tucson Department of
Procurement Business Enterprise and Compliance within 15 working days
following submission of Agreement.
b)
Approval of working plan for the designated project where a Mentor-Protege
Development Plan will be implemented.
(3)
Duration of a Mentor-Protege Development Plan may exceed that of a single project, not to
exceed three years. Duration of a working plan may exceed that of a single project.
However, the continued use of an existing working plan must be approved by the City of
Tucson Department of Procurement Business Enterprise and Compliance prior to
beginning work on a new project.
(4)
The Mentor-Protege program is not intended to provide DBE firms with a means to avoid
management and operational responsibilities. Mentors cannot be responsible for the
management of DBE proteges. Under the program, all administrative functions must be
performed by personnel responsible to or employed by protege. The protege must retain
final decision making responsibilities.
(5)
Mentor and protege shall agree to an interview by the City of Tucson Department of
Procurement Business Enterprise and Compliance and/or the ADOT Business
Enagagement and Compliance during the development of the Mentor-Protege Development
Plan.
(6)
Mentor and protege shall agree to evaluations by the City of Tucson Department of
Procurement Business Enterprise and Compliance and/or ADOT. The frequency and
method will depend on the project.
Content of Mentor-Protege Development Plan:
A Mentor-Protege Development Plan Agreement shall address the following:
(1)
Areas of Assistance: Identify the specific areas in which the protege requires assistance.
(2)
Schedule of Assistance: Develop an Action Plan which defines the types and scope of
assistance the mentor will provide to meet the protege's needs.
(3)
Responsibilities: Define the responsibilities of the mentor and the protege in each of the
activities.
(4)
Benchmarks: Include measurable benchmarks to be reached by the protege at successive
stages of the plan.
(5)
Evaluation: Provide formal evaluations of the protege's attainment of benchmarks.
Evaluations must be made by both the mentor and the protege and reviewed by the City of
Tucson Department of Procurement Business Enterprise and Compliance and/or ADOT.
(6)
Duration: Specify the maximum time frame the development plan agreement can remain in
effect not to exceed three years.
(7)
Assurances: Provide assurances that all agreements, oral and written, pertaining to the
Mentor-Protege program do not improperly obtain the benefits of the DBE program.
(8)
Key Personnel: Identify mentor's representative(s) responsible for training and/or
coordinating the assistance provided to the protege.
(9)
Fees: Identify any fees paid as a condition of the agreement.
(10)
Copies of agreements: Attach copies of all bonding, security, lease agreements, notes,
contracts, etc., made for the duration of the Mentor-Protege Plan.
Type of Assistance:
The type of assistance provided by contractors may include, but not be limited to:
(1)
Financial:
a)
Working Capital Secured by Time Demand Notes or Stocks. Proteges acquiring
working capital through the issuance of stocks must maintain no less than 51
percent ownership to maintain DBE certification. Time demand notes may be
used to secure working capital. However, any abusive use of recall features will
be cause for terminating program. Where working capital is secured by stocks
or demand notes, a third party such as a bank could receive progress payments
for work accomplished by the protege, made out jointly to the agent and the
protege and make payments, on behalf of the protege, to material suppliers or for
Federal and State payroll taxes, etc. In no case can the day-to-day control of the
firm be relinquished by the disadvantaged owner as a requirement of the loan.
b)
Bonding. Mentors may bond the entire job and charge a pro-rata share of the
cost to the protege. Mentors may bond the entire job and carry the protege by
absorbing the cost of the bond. Arrangements of the bonding must be included
in the Schedule of Assistance.
(2)
Management Technical Assistance:
a)
Assist in conducting a Protege Self-Assessment by areas to be strengthened for
long-range planning of the protege firm.
b)
Assist in developing business plan, loan packaging, and financial counseling.
c)
Assist the protege in setting up a cost accounting system and train the protege's
personnel to assume full control.
d)
Provide training in plan interpretation, estimating, and materials supply function.
e)
Provide guidance in general project management and related areas to make the
protege aware of techniques to improve productivity and competitiveness and
broaden knowledge of industry practices.
(3)
Operation:
a)
Equipment/Facilities Use. Equipment and facilities may be furnished by mentor,
provided that separate lease agreements are made and control over the
equipment and facilities are under the supervision of protege.
b)
Training of managers and specialists of the protege in state-of-the-art methods in
the contracting industry.
c)
Mentors may provide personnel with specialized expertise for a specific purpose
and duration as outlined in the Action Plan. Such personnel must be on the
protege's payroll and under direct supervision of the protege. Long term,
continual, or repetitive use by a protege of personnel primarily employed by the
mentor will be construed as an attempt to artificially inflate DBE participation
and may be cause for termination of the Mentor-Protege agreement and
decertification of the DBE.
General Practice:
(1)
Agreements may not include exclusive arrangements which limit competition.
(2)
DBE firms shall have the latitude to quote bids to other contractors.
(3)
The contractor and the DBE involved in a Mentor Protege agreement must remain separate
and independent business entities.
(4)
Middlemen or passive conduits which serve no commercially useful function, or
subcontractors acting essentially as brokers are unacceptable.
(5)
Formal or informal agreements which limit control and management by DBE firms are
unacceptable.
(6)
Part ownership in a DBE firm by a non-disadvantaged entity, including a mentor, is
permitted by the regulations (49 CFR 23) and may be necessary to ensure adequate capital
and technical guidance of the DBE participant. However, any financial investment by the
mentor must not create a situation wherein the mentor may assume control over the DBE
firm.
Modifications:
Modifications to the Mentor-Protege Development Plan shall be subject to the approval of the City of Tucson
Department of Procurement Business Enterprise and Compliance and/or ADOT.
Termination:
The Mentor-Protege Development Plan may be terminated by mutual consent by both parties with notice to the
City of Tucson Department of Procurement Business Enterprise and Compliance. The City of Tucson
Department of Procurement Business Enterprise and Compliance may terminate approval of the Plan upon
determination that:
(1)
The protege firm no longer meets the eligibility standards for certification as a DBE.
(2)
Either party has failed or is unable to meet its obligations under the Development Plan.
(3)
The DBE is not progressing or is not likely to progress in accordance with the Development
Plan.
(4)
The DBE has reached a satisfactory level of self-sufficiency to compete without special
treatment provided in the Development Plan.
In the event a Mentor Protege Development Plan is terminated, the contractor will remain responsible for the DBE
goals established in the project Special Provisions.
ARIZONA DEPARTMENT OF TRANSPORTATION
Mentor-Protege Development Plan Agreement
PART ONE: General Agreement
This agreement entered into this day of , 20 , in the city of __________, Arizona, by and
between (hereafter known as Mentor), and (hereafter known as
Protege), in accordance with rules and regulations of the Arizona Department of Transportation (ADOT)
Mentor-Protege program, and in accordance with the requirements for increased Disadvantaged Business
Enterprises (DBE) participation in the Surface Transportation Act of 1982 (STAA) and Surface Transportation
and Uniform Relocation Assistance Act of 1987 (STURAA).
This agreement is intended to cover the general relationship between the parties to insure compliance with STAA,
STURAA, and ADOT guidelines, and to implement all provisions set forth in the Mentor-Protege Development
Plan.
PART TWO: Assurances
2.1
Both mentor and protege will remain separate and independent business entities. Protege shall have the
latitude to quote bids to other contractors.
2.2
Protege is an ADOT-certified DBE firm.
2.3
The Mentor-Protege program is not intended to provide DBEs with means to avoid management and
operational responsibilities.
2.4
All agreements, oral and written, pertaining to this Mentor-Protege Plan Agreement do not cause the
protege to improperly obtain the benefits of the DBE program.
PART THREE: Content of Plan
Both parties will agree to content of the plan which will include but not be limited to:
3.1
Exhibit A: Areas of Assistance--(Areas identified by both parties as the basis for providing assistance by
mentor to protege.)
3.2
Exhibit B: Schedule of Assistance-- An Action Plan developed by both parties defining the types and
scope of assistance; responsibilities of mentor and protege in each activity; resources to be utilized; and
measurable benchmarks to be reached by protege.
3.3
Exhibit C: Key Personnel-- A list of mentor and protege representatives responsible for training and/or
coordinating the Plan.
3.4
Exhibit D: Lease/Agreement(s)--Full copies of all lease agreements for equipment and facilities; financial
agreements; and other agreements between the two parties and/or by third parties.
PART FOUR: Monitoring
4.1
Both parties hereby specifically consent to the monitoring of this contract by the appropriate federal and
state officials or their agents, and to agree to cooperate with such agencies.
4.2
Both mentor and protege agree to evaluate the progress of the Plan at scheduled intervals with the results
reviewed by ADOT.
PART FIVE: Duration
The duration of the Plan will coincide with the length of the project for which the plan was intended. Extended
agreement plans shall not exceed a period of three years.
PART SIX: Modifications
None of these agreements may be modified except in writing signed by both parties and approved by the City of
Tucson Department of Procurement Business Enterprise and Compliance and ADOT.
PART SEVEN: Termination
The mentor or protege retains the right to terminate this agreement by showing cause in a written notice to all
parties and the City of Tucson Department of Procurement Business Enterprise and Compliance and ADOT.
The City of Tucson Department of Procurement Business Enterprise and Compliance or ADOT may terminate
the approval of this agreement by showing cause in a written notice to mentor and protege. In the event of
termination of agreement or termination of the City of Tucson Department of Procurement Business Enterprise
and Compliance or ADOT approval, the contractor will remain responsible for the DBE goals established in the
project Special Provisions.
PART EIGHT: Privacy Act Provision
The information contained herein and on attachments is used for the ADOT Mentor-Protege Program only, and
may not be disclosed without the express permission of all parties involved in this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their duly authorized
officers on the day and year first above written.
_______
__________________________________ ____________________
Date Mentor Firm (Authorized Official Name)
Signature
_______
__________________________________ ____________________
Date Protege Firm (Authorized Official Name)
Signature
Agency Name City of Tucson
AFFIDAVIT
BECO 302S R1/13
DISADVANTAGED BUSINESS ENTERPRISE
ASSURANCES
The undersigned, fully cognizant of the requirements and of the goal established, hereby certifies that in the
preparation of this bid for federal aid project
Contract Number 141081
ADOT (TRACS) Project # 0000 PM TUC SS736 01C
Project Name Tucson Boulevard Path – Rillito River to Prince Road
Location Tucson Arizona
(CHECK ONE)
The established goal for DBE participation will be met and agreements have been made with
certified DBEs, or
The bidder has been unable to meet the goal prior to the submission of the bid and has made good
faith efforts to do so.
THIS AFFIDAVIT MAY NOT BE REVISED OR CORRECTED AFTER SUBMISSION OF THE BID.
In accordance with the Special Provisions, the bidder shall specify its DBE participation on the "DBE Intended
Participation Affidavit", or provide documentation of its good faith efforts, by 4:00 p.m. on the fifth working day
following the bid opening. The apparent low bidder shall obtain the required affidavit from the Business
Engagement and Compliance Office, 1135 N. 22nd Avenue (second floor), Phoenix, AZ, 85009, following the
opening of bids.
Print Name of Firm
Print Name of Authorized Officer of Firm
Signature of Authorized Officer of Firm
Title
Subscribed and sworn to before me this:
day of
20
My commission expires:
Notary Public
Agency Name City of Tucson
Agency BIDDERS LIST
This form must be submitted to the Agency by 4:00 p.m. on the fifth working day after the opening of bids.
BECO 303S R6/1/11
Contract No:
141081
TRACS No. SS736 01C
Bidder:
Firm Name
Address
Phone No.
DBE/Non-DBE
(Yes/No)
CRO Vendor
Registration No.
FAILURE TO SUBMIT THE REQUIRED INFORMATION BY THE STATED TIME AND IN THE MANNER HERIN SHALL RENDER BIDDER INELIGABLE FOR
AWARD.
List all companies that have submitted bids with your firm for this contract.
DISADVANAGED BUSINESS ENTERPRISE
INTENDED PARTICIPATION AFFIDAVIT
SUMMARY SHEET
BECO 305S
To be completed by Prime
ADOT (TRACS) Project #
SS736 01C
Contract No.: 141081
Prime Civil Rights Vendor Registration #
Name of Prime Firm
Directions:
The form must reflect the information included on the individual affidavit attachment(s) for each DBE.
This form must be signed by an owner/authorized party.
The DBE must be certified within the work category they will be performing
The affidavits must be submitted by 4:00 p.m. on or before the fifth working day after the bids are opened.
An individual participation affidavit attachment must be submitted for each proposed DBE.
DBE information: (Attach additional sheets as necessary)
CR Vendor Reg. #
Name of DBE Firm
Scope of Work
Total Minimum
Contract Amount
Adjustments
Total Amount
Toward DBE Goal
(1) Sub Total (Total Dollar Value of DBE Commitment
(2) Contract Bid Total
Percent of Contract Bid (Divide Line 1 by Line 2)
(Date)
(Name of Firm)
(Signature)
(Title)
.
Agency Name City of Tucson
DISADVANTAGED BUSINESS ENTERPRISE
INTENDED PARTICIPATION CERTIFICATION AND CONFIRMATION OF PARTICIPATION - ATTACHMENT
BECO 304S
To be completed by the DBE subcontractor or supplier
Contract #
141081 TRACS No: SS736 01C
DBE Civil Rights Vendor Registration #
Name of DBE Firm
Directions:
The form must be signed by an authorized party appointed by the contractor(s).
This form must be submitted by 4:00 p.m. on or before the fifth working day after the bids are opened
The DBE must be certified within the work category they will be performing
This form must be filled out in its entirety. Leave no blank spaces, use N/A or enter ‘0” if section does not apply to your services
(Attach additional sheets as necessary.)
Intended Participation
1. The undersigned is prepared to perform the following scope(s) of work on the above referenced project
COMPLETE THIS PORTION IF SCOPE OF WORK IS BID BY UNIT PRICE OR HOURLY RATE (Trucking, Hauling, Uniformed Officers, Etc.)
Description /Scope of Work
Unit/Hourly
Estimate
Unit/Hourly Price
Total Minimum
Contract Amount
$
$
$
$
Total
$
COMPLETE THIS PORTION IF SCOPE OF WORK IS BID BY UNIT PRICE OR HOURLY RATE (Trucking, Hauling, Uniformed Officers, Etc.)
Description /Scope of Work
Total Bid
Amount
$
$
$
$
Total
$
2. The undersigned affirms that of the trucking/hauling work quoted above, the following applies:
Total Minimum Contract Amount
$
Percentage Subcontracted to Non-DBE Trucking Firms
%
Brokerage Fee Charged to Non-DBE Trucking Firms
%
Percentage Subcontracted to DBE Trucking Firms
%
3. The Undersigned affirms that the amount of fees and commissions for work quoted above are as follows:
Unit Price Bid
$
Fees/Commissions Portion of Bid
$
4. The Undersigned will sublet and/or award
$
of the work bid to a non-DBE firm.
5. The Undersigned will sublet and/or award
$
of the work to another certified DBE firm.
Confirmation of Participation
By signature below, the undersigned agrees to enter into a formal agreement/subcontract for the work cited herein should the prime contractor receive award of this contract from the
Purchaser.
I,
confirm that
(authorized party at DBE firm, print name and title)
(name of DBE firm)
will be participating in the above project. My company will be performing the scope as described above.
for
(total DBE credit dollar value)
(Authorized Signature)
Date
BIDDER MUST SUBMIT A COMPLETED ‘INTENDED PARTICIPATION AFFIDAVIT SUMMARY’ AND ‘INTENDED PARTICIPATION
CERTIFICATIONS AND CONFIRMATIONS OF PARTICIPATION’ OR AFFIDAVIT OF GOOD FAITH EFFORTS WITHIN 5 WORKING
DAYS OF THE BID OPENING .
The City of Tucson Department of Procurement Business Enterprise and Compliance
AFFIDAVIT OF GOOD FAITH EFFORTS
IFB NO:
141081
PROJECT NAME: TUCSON BLVD. PATH – RILLITO RIVER TO PRINCE ROAD
COMPANY NAME: ____________________________________________________________________
CONTACT NAME:
PHONE NUMBER:____________________ FAX NUMBER:
WHERE A BIDDER’S FAILS TO EXERCISE “GOOD FAITH” EFFORTS TO MEET DBE GOALS, AS REQUIRED BY THE CITY OF
TUCSON, THE BIDDER WILL BE DEEMED NONRESPONSIVE.
The intent of this certification is to document the good faith efforts implemented by the bidder in soliciting and utilizing DBE firms to
meet the City of Tucson’s DBE goals. This certificate will assist the City of Tucson Department of Procurement Business Enterprise
and Compliance in determining whether the bidder has implemented comprehensive good faith efforts. Pursuant to Administrative
procedures and policies, the Procurement Director may verify and/or clarify information as it relates to the Affidavit of Good Faith Efforts
and/or the Bidder’s Statement of Proposed DBE Plan. The burden of proof rests with the bidder.
1.
Is a partial or complete waiver being sought? Please explain. Note: If a partial waiver is being sought the scope of such waiver
must be indicated and a DBE plan must also be submitted.
2.
Provide a brief summary of why the DBE goal on this project has not been met. Attach supporting documentation.
3.
Which portions of the contract proposal, in terms of the nature of the work, were selected to be subcontracted to DBE firms?
Attach supporting documentation (e.g. memo, proposal, project breakdown, etc.).
4.
Which portion of the contract proposal, in terms of suppliers was identified for DBE firms? Attach supporting documentation (e.g.
memo, proposal, project material breakdown etc.).
Name of Company Contacted
Contact Person
Dates of Contact
Telephone #
6.
Was the City of Tucson Department of Procurement Business Enterprise and Compliance technical or professional staff
contacted for assistance? (Note that it is the policy of the COT to offer technical support to respondents to ensure that all
avenues have been exhausted in meeting the DBE goals.) Attach necessary documentation.
Yes ____
No _____
Date of Contact ________ OEOP Contact Person __________________________
5.
Which DBE firms were solicited in writing for subcontract or supplier quotes/bids? Also, in the appropriate space identify when
the firms received subsequent telephone solicitations. Attach supporting documentation (e.g. copy of written solicitation to DBE
firms, along with copies of telephone logs documenting follow-up communications, etc.).
7.
Describe any efforts undertaken to provide DBE firms with information about the project plans, specifications and requirements
of the contract.
Name of DBE Firm
Explanation for Rejecting Quotes
____________________________________
_______________________________________________
____________________________________
_______________________________________________
____________________________________
_______________________________________________
____________________________________
_______________________________________________
____________________________________
_______________________________________________
8.
Describe any additional efforts undertaken to assist DBE firms (e.g. bonding assistance, lines of credit, etc. ).
9.
Indicate which DBE firms submitted quotes on the contract proposal and provide a brief explanation of the reasons why these
quotes were rejected. If price was a factor provide documentation to show quotes received from non-certified firms.
10.
Describe in detail any supplemental items or efforts which you wish to have the department consider as part of your Good Faith
Effort. Attach additional documentation or sheets for this item.
MUST BE SUBMITTED WITH REQUEST FOR FINAL PAYMENT
SUPPLIER AND SUBCONTRACTOR UTILIZATION LIST
FINAL PAYMENT RECORD
Pursuant to administrative procedures and policies, the Procurement Director may verify and/or clarify and request resubmittal of information to
verify or clarify information as it relates to the contractor's Final Payment Record.
IFB No. ____141081______
Bid Amount: _________________ Project Name: TUCSON BLVD. PATH – RILLITO RIVER TO PRINCE
ROAD
TRACS No.: SS736 01C
FIRM NAME
DBE
TRADE/INDUSTRY
SUPPLIER TOTAL PAYMENT MADE
Y__N__
Y__N__
Y__N__
Y__N__
Y__N__
Y__N__
Y__N__
Y__N__
Y__N__
Y__N__
Y__N__
Y__N__
Y__N__
Y__N__
Y__N__
Y__N__
Y__N__
Y__N__
Project Name: TUCSON BLVD. PATH – RILLITO RIVER TO PRINCE ROAD
COT Job No.: __S01G_______
Contract No.: __141081_____________
Fed Job No.: STP-TUC-0(227)A
State TRACS No.: 0000 PM TUC SS736 01C__
The undersigned prime contractor on the above named City of Tucson project hereby, certifies that full payment was
made to the firm indicated for material and/or work performed under this project’s contract as follows:
DBE Vendor Registration #
Firm Name
______________________________, was paid $
The subcontract was completed on _______________
Full Retention has been released to the Subcontractor by the Prime Contractor Yes / No
This certification is made under Federal and State laws concerning false statement. Supporting documentation for
this payment is subject to audit and should be retained for a minimum of three years from project acceptance date. In
the event the DBE was not paid in accordance with affidavits submitted by the prime contracts, all documentation
supporting the contractors position should be submitted.
I DECLARE UNDER PENALTY OF PERJURY IN THE SECOND DEGREE, AND ANY OTHER
APPLICABLE STATE OR FEDERAL LAWS, THAT THE STATEMENTS MADE ON THIS DOCUMENT
ARE TRUE AND COMPLETE TO THE BEST OF MY KNOWLEDGE.
Prime Contractor
By:
Title:
Date:
The undersigned subcontractor/supplier/manufacturer for the above named project hereby certifies that payments
were received and/or justification by contractor is correct.
I DECLARE UNDER PENALTY OF PERJURY IN THE SECOND DEGREE, AND ANY OTHER
APPLICABLE STATE OR FEDERAL LAWS, THAT THE STATEMENTS MADE ON THIS DOCUMENT
ARE TRUE AND COMPLETE TO THE BEST OF MY KNOWLEDGE.
Subcontractor/Supplier/Manufacturer
By:
Date:
Title:
State of:
County of:
Subscribed and sworm to before me this
day of
Signature of Notary Public
Seal
My Commission Expires
CERTIFICATION OF PAYMENTS TO DBE FIRMS
MUST BE SUBMITTED BY 4:00 PM ON THE FIFTH WORKING DAY FOLLOWING BID OPENING
SUBCONTRACTOR PROMPT PAYMENT REQUIREMENTS
IFB NO: ________141081___________________
PROJECT NAME: TUCSON BLVD. PATH – RILLITO RIVER TO PRINCE ROAD
DBE Contract Provisions – Section 17. Contract Performance
Prime contractors are required to pay subcontractors for satisfactory performance of
their contracts no later than 7 days from receipt of each progress payment made by the
City of Tucson to the prime contractor.
The prime contractor is to pay all retention owed to a subcontractor within 30 days of
satisfactory completion of the contracted work. For the purposes of this section, a
subcontractor’s work is satisfactorily completed when all the tasks called for in the
subcontract have been accomplished and accepted by the prime contractor as required
by the City of Tucson.
Payment of retention by a prime contractor to subcontractors following completion and
acceptance of work is NOT dependent on the billing of, or payment from, the City of
Tucson for the retention release.
Once a subcontractor’s work has been accepted, a prime contractor may bill the City of
Tucson for release of retention equal to the amount of retention that is/has been
released to a subcontractor.
The City of Tucson may withhold payment from the prime contractor for work performed
by subcontractors unless and until the prime contractor ensures that the subcontractors
are promptly paid for the work they have performed.
By signing below I acknowledge and agree to the DBE subcontractor prompt payment
requirements.
Company Name:
Signature:
Name & Title:
Date:
JOB ORDER CONTRACT 212710-02
INSTALLATION, MAINTENANCE, REPAIR OF FIBER/COPPER
NETWORKS
APPENDIX )
PRICING
6
4/29/2021
LINKING AGREEMENT
BETWEEN
THE CITY OF GLENDALE, ARIZONA
AND
STURGEON ELECTRIC COMPANY, INC.
EXHIBIT C
METHOD AND AMOUNT OF COMPENSATION
Contractor will provide a written proposal, including all fees for services as needed for the
installation, maintenance and repair of fiber/copper networks.
NOT TO EXCEED AMOUNT
The total amount of compensation paid to Contractor for full completion of all work required by
the Project must not exceed $500,000 for the entire term of the Agreement.
DETAILED PROJECT COMPENSATION
Upon request Contractor will provide a written proposal, including all fees services, equipment and
parts per the attached City of Tucson Contract No. 212710-02.
JOB ORDER CONTRACT 212710-02
INSTALLATION, MAINTENANCE, REPAIR OF FIBER/COPPER
NETWORKS
APPENDIX *
SUBCONTRACTOR SELECTION PLAN
Sturgeon Electric Company, Inc.
36
4. Subcontractor Selection Plan
a. Submit a proposed Subcontractor Selection Plan pursuant to ARS 34-6003. The plan must
describe procedures to be used in selecting subcontractors, and that selection shall be
based on a combination of qualifications and price. Include information on how compliance
with SBE/DBE subcontractor participation goals will be met.
Sturgeon Electric is a full electrical service provider with both C&I and T&D capabilities. Sturgeon Electric
has a strong, established network of leading firms we can team with for major projects. Our efforts to
identify additional subcontractors include requests for proposals and negotiations with all potential
subcontractors to ensure a full commitment to the project. As part of this process, we communicate
opportunities and establish qualifications of subcontractors and suppliers.
SUPPLIER DIVERSITY PROGRAM
Commitment and Participation
Sturgeon Electric is dedicated to the fair consideration of all suppliers in its day-to-day procurement of
materials, equipment, and services as required for any project. We understand the importance of supplier
diversity and want to provide opportunities for Disadvantaged Business Enterprise (DBE) firms. DBE firms
when referred to herein will include Minority Business Enterprises, Women Business Enterprises, Veteran
Business Enterprises, Historically Underutilized Businesses, and Small, Women and Minority
disadvantaged suppliers that have been certified by a federal/state/or local government. We have
experience in working with a wide range of diverse suppliers to provide a competitive edge in producing
high-quality, low-cost innovative products and services. All of Sturgeon’s employees with purchasing
responsibility and/or involved in procurement decisions for equipment, material, and services are
expected to notify and give every consideration to using qualified DBE firms in a manner that is consistent
with state and federal laws and regulations. We have exceeded the “expected levels” of on-site DBE
participation on a number of projects and will continue to strive to exceed such levels while conducting
business in the highest professional manner.
SUBCONTRACTOR SELECTION PLAN
Sturgeon reviews the safety performance, operating capabilities, and price quote of potential
subcontractors prior to commencement of work.
Criteria used to select subcontractors:
1. Safety- Sturgeon conducts an annual safety review of all Subcontractors. The
annual Safety Performance Questionnaire must be completed and reviewed by
Sturgeon’s Safety Department to ensure all safety standards and requirements are
met prior to any new work orders being issued.
2. Operating Capabilities- Subcontractors are assessed based on expertise, past
experience, commitment to quality and customer satisfaction, and the ability to
meet the construction schedule. All subcontractors are required to have a signed
contract and provide a Certificate of Insurance (COI) that meets the contract
requirements prior to working on site. Sturgeon will monitor the subcontractor’s
safety, performance, and workmanship during the project’s duration, ensuring
quality standards are met.
Sturgeon Electric Company, Inc.
37
3.
Price-Sturgeon always strives to provide quality and safe services at a fair price for
our clients. This is possible by selecting subcontractors that provide fair prices for
their services as well.
Depending on the scope and excavation conditions, Sturgeon would self-
perform or subcontract professional excavation companies.
Possible excavation subcontractors may include:
R.W. Strunk Excavating, Inc.
9705 E. Giant Cacti Drive
Tucson, AZ 85749
520-631-3944
R.W. Strunk has been a local Tucson business since 1972. BBB Rating of A+ and has an AZ ROC 071793
business license. The business is focused on helping Tucson businesses such as Raytheon, Davis-Monthan
Air Force Base and the University of Arizona on new developments as they expand and commercial work
throughout Southern Arizona. Services include: Excavating, Trenching, Septic Tanks, Compaction, Hauling,
Jackhammers, Rock Saws, Boring, Commercial pads, House pads, Grading, Paving, Sewer and Water
Pipeline, Utility and Potholing Work.
Days Excavating, Inc.
4295 E. Dawson Road.
PO Box 1249
Sahuarita, AZ 85629
520-625-2788
Days Excavating, Inc. located in Sahuarita, AZ has been in business since 1987. BBB Rating of A+ and
carries an AZ ROC 291205 business license. Markets include both Public and Private Sectors, and include
both New Build and Alternations/Renovations. Excavating services include: Site Development,
Underground Construction, Utilities, Storm Drains, Earthwork, Underground Utility Contractors, Water
Mains, Electric & Communication Conduit, Asphalt Paving, Mass Grading, Sewer Mains and more.
Please see the following Sturgeon Electric’s Subcontractor Qualification Policy and required annual Safety
Performance Questionnaire:
Approved By:
William F. Eiseman III
Safety, Health and
Environment Policy and
Procedures Manual
Date Revised:
3.25.2020
Revision No.
4
Subcontractor Qualification
Date Issued:
Supersedes all others
Page 1 of 3
1
Policy
The Company is committed to providing superior electrical services to our clients while being proactive
in providing a safe work environment for our employees. Safety is not just a priority; it is a value that is
based on the belief that every injury is preventable and guides our actions.
The policy also recognizes that in some instances it cannot provide superior service without the
assistance of subcontractors. Therefore, it must take steps to ensure that its subcontractors have the
same vision and commitment to safety.
2
Purpose
The purpose of this policy is to establish uniform guidelines of the evaluation of subcontractors’ safety
practices and policies.
3
Scope
This policy applies to companies.
4
Procedure
a) This section identifies the company's safety requirements for subcontractors. These guidelines are
applicable to all projects involving subcontractors providing construction, renovation, and support
services in excess of 100 hours annually. These guidelines may be modified to include more
stringent requirements of a client, local union agreement, or subsidiary, but may not be otherwise
modified without approval of the Regional Vice President responsible for the project and the Vice
President Safety.
i)
The local Safety Engineer or Regional Safety Manager will review the completed
Subcontractor Qualification Form. Subcontractors, who exceed the maximum allowable limits,
as set below, may be considered not qualified to be awarded a subcontract until sufficient
responses are received explaining the current rates and what efforts will be made to ensure
acceptable project safety performance. The maximum allowable limits are as follows:
a)
Experience Modification Rate (EMR) – cannot be greater than or equal to 1.0 (interstate or
intrastate as applicable)
a)
OSHA Recordable Incidence Rate – must be less than or equal to the BLS for the
Subcontractor’s NAICS code (for the most recent calendar year).
a)
Lost Time Rate (Days Away) – must be less than or equal to the BLS for the
subcontractor’s NAICS (North American Industry Classification Code) code (for the most
recent calendar year).
ii)
Subsidiary field supervision shall provide subcontractor’s management with project specific
safety requirements.
Approved By:
William F. Eiseman III
Safety, Health and
Environment Policy and
Procedures Manual
Date Revised:
3.25.2020
Revision No.
4
Subcontractor Qualification
Date Issued:
Supersedes all others
Page 2 of 3
iii) Subsidiary field supervision and/or Safety Supervisor will be responsible to monitor the
subcontractor’s safety performance during the project’s duration and report deficiencies to the
District Manager for correction. The subcontractor will be required to correct any deficiencies
noted in violation of this program, state and federal regulations, and project specific
requirements. This does not constitute control or safety oversight. Subcontractors will be
responsible for their own safety oversight.
iv) The Subsidiary shall identify current and possible future subcontractors. Each subcontractor
that is expected to perform work on our jobsites in excess of 100 hours annually will be
supplied with a Subcontractor Qualification Form.
v) Approved subcontractors shall supply the assigned company safety representative with
monthly statistics for work performed on company projects. These statistics shall include:
a)
Number of hours worked (if no hours worked that month, a report must still be submitted to
be kept on the bid list)
a)
Total number of OSHA Recordable Incidents
a)
Number of Lost Time cases
a)
Number of Lost Days
a)
Number of Restricted cases
a)
Number of Restricted Days
a)
Number of Medical Only cases
a)
Number of Fatalities
b) Subcontractors that do not meet the requirements above may be used on a probationary basis.
Restrictions and requirements shall be agreed upon by Safety and Operations. All safety issues
shall be resolved before award of contract.
c)
Appendix A – Process Diagram
Approved By:
William F. Eiseman III
Safety, Health and
Environment Policy and
Procedures Manual
Date Revised:
3.25.2020
Revision No.
4
Subcontractor Qualification
Date Issued:
Supersedes all others
Page 3 of 3
Exhibit E
SUBCONTRACTOR SAFETY PERFORMANCE QUESTIONNAIRE
1
Master Subcontractor Agreement-Exhibit E
REV 2020-01
Sturgeon Electric Company, Inc.
Company:
Street Address:
City:
State:
Zip Code:
Contact:
Phone:
Contact email:
I.
Worker’s Compensation Insurance-Experience Modification Rate (EMR)
A.
Provide your company’s EMR for each of the last three (3) Years:
Policy Year
EMR
B.
Furnish a letter from your insurance company verifying the EMR data listed above.
II.
OSHA Recordable Incidents
A.
Provide the following data from your company’s OSHA 300 and/or 300A logs for each of the
last three (3) years:
Year
Year
Year
1.
Number of employee hours worked
2.
Number of fatalities
(Total Columns 1 + 8)
3.
Number of OSHA recordable injuries
(Total Columns 2+6+9+13)
4.
OSHA recordable incident rate
ሺ̶ ͵̶ ʹͲͲǡͲͲͲ̶
ͳ̶ ሻ
5.
Number of lost workday cases
(Total Columns 3 + 10)
6.
Lost work day incident rate
ሺ̶ ͷ̶ ʹͲͲǡͲͲͲ̶
ͳ̶ ሻ
7.
Number of cases with days away
from work or restricted duty
(Total Columns 2 + 9)
*Sturgeon requires all subcontractors to complete this form annually.
*Sturgeon requires all subcontractors to complete this form annually.
SAMPLE: Annual Subcontractor Safety Questionnaire Form
Exhibit E
SUBCONTRACTOR SAFETY PERFORMANCE QUESTIONNAIRE
2
Master Subcontractor Agreement-Exhibit E
REV 2020-01
Sturgeon Electric Company, Inc.
III.
Safety and Health Program
A. Have you had an OSHA citation in the past five (5) years?
Yes
No
If yes, please provide details for each citation.
B. Do you have a written safety and health program?
Yes
No
If yes, please attach a copy.
If no, please explain how your company’s safety requirements are communicated to your employees.
C. Does your company have a safety officer or safety department?
Yes
No
If yes, please provide contact information.
If no, who in your company is responsible for safety and health program?
D. Will your company assign full time supervision to this project?
Yes
No
E. Will your company assign a full time safety professional to
Yes
No
this project?
If not, who will be responsible for safety on the jobsite?
At what Frequency will this person visit the jobsite?
In this person’s absence, who will be responsible for safety at the jobsite?
F. Will each of your company’s crew have competent persons
Yes
No
assigned as required by OSHA for the particular work being
performed?
Please attach a list of competent persons that will be assigned to this project and copies of
their training records.
G. Does your company have a Personal Protective Equipment (PPE)
Yes
No
policy; for example, mandatory hard hats, safety glasses, etc?
If yes, what does it include?
Exhibit E
SUBCONTRACTOR SAFETY PERFORMANCE QUESTIONNAIRE
3
Master Subcontractor Agreement-Exhibit E
REV 2020-01
Sturgeon Electric Company, Inc.
If not, what PPE will your company require on this project?
H. Does your company have a substance abuse program
Yes
No
designed to provide a drug free workplace?
If yes, please attach a copy.
If no, would you agree to adhere to MYR Group Inc.’s
Yes
No
Substance Abuse Policy?
If yes, does it include:
Pre-employment screening?
Yes
No
Random testing?
Yes
No
For cause testing?
Yes
No
If yes, who is included in the testing?________________________________________________
I.
Comment on any other areas of your company’s safety program and policies that you feel will
be appropriate in our evaluation.
IV.
Safety and Health Training
A. Do you require onsite supervision to have an OSHA 30 hours
Yes
No
training course.
Please attach a list of all supervision with OSHA 30 hour training that will be assigned to this
project and copies of their training records.
B. What type of safety orientation do you provide for new hires?
C. Do your foremen receive formal safety training?
Yes
No
If yes, please list training provided.
Are your foremen trained in?
First Aid
CPR
D. Does your company train on environmental subjects?
Yes
No
If yes, please specify topics.
JOB ORDER CONTRACT 212710-02
INSTALLATION, MAINTENANCE, REPAIR OF FIBER/COPPER
NETWORKS
APPENDIX +
BONDS
JOB ORDER CONTRACT 212710-02
INSTALLATION, MAINTENANCE, REPAIR OF FIBER/COPPER
NETWORKS
APPENDIX ,
INSURANCE