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HomeMy WebLinkAboutResolution - 4947 - Contract - Texdot - #516-XXF-6009, Public Transportation - 09_14_1995Resolution No. 4947 September 14, 1995 Item #19 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock Contract No. 516-XXF-6009 and related documents to be entered into by and between the City of Lubbock and the Texas Department of Transportation, attached hereto, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this ATTEST: c" Betty A Johnson, ity Secretary APPROVED AS TO CONTENT: Sotelo, First AssistantLity Manager APPROVED AS TO FORM: &-4wj lv-�' arold Willard, Assistant City Xttorney HW:dplccdocs\TDT1tes August 30, 1995 Resolution No. 4947 Septeihber 14., ' 1995 Item #1.9 RECIPIENT: City of Lubbock CONTRACT NUMBER: 516XXF6009 STATE PROJECT NO.: URB-9601 (005)1 PUBLIC TRANSPORTATION CONTRACT THE STATE OF TEXAS § THE COUNTY OF TRAVIS § THIS CONTRACT is made by and between the State of Texas, acting by and through the Texas Department of Transportation, hereinafter called the State, and the City of Lubbock hereinafter called the Contractor. A I T N E S S E T H WHEREAS, the State is the administering agency for the State Public Transportation Fund as prescribed by Article 6663c, V.T.C.S.; and WHEREAS, the Contractor desires to obtain public transportation funds from the State for the purpose of establishing and maintaining public and mass transportation systems; and WHEREAS, the State is authorized under Article 6663b, V.T.C.S., to assist the Contractor in procuring federal aid for the purpose of establishing and maintaining public and mass transportation projects, hereinafter called the Project; and WHEREAS, the Texas Transportation Commission passed Commission Minute Order No. 105871 authorizing the State to enter into the necessary agreements with the Contractor for funding public transportation projects; and NOW, THEREFORE, in consideration of the premises and of the mutual covenants hereinafter set forth, the parties hereby agree as follows. 1 A G R E E M E N T ARTICLE 1. CONTRACT PERIOD This contract becomes effective on the final date of execution by the State's Director of Public Transportation and shall terminate on August 31, 1996 unless otherwise terminated or modified as hereinafter provided. Termination of the Contract shall not release the Contractor from the property management standards outlined in Article 9 below. ARTICLE 2. PROJECT DESCRIPTION The Contractor shall undertake the public transportation project as described in Attachment A and in accordance with the terms and conditions of this Contract. Further, the Contractor shall comply with the provisions of the Uniform Grant and Contract Management Standards prepared in response to the Uniform Grant and Contract Management Act of 1981. The Contractor shall commence, carry on and complete the Project with all practicable dispatch, in a sound, economical and efficient manner in accordance with the provisions of Attachment A. ARTICLE 3. COMPENSATION A. The maximum amount payable under this Contract without modification is ($343,900). The State will reimburse the Contractor for the authorized costs incurred in carrying out this project which are further described in the budgetcontained in Attachment A. The State's payment to the Contractor is contingent upon the availability of Federal and/or State appropriated funds. The State shall have no liability for any claim submitted by the Contractor or its subcontractors, vendors, manufacturers or suppliers if sufficient Federal or State funds are not available to pay the Contractor's claims. B. To.be eligible for reimbursement under this contract, a cost must be incurred within the contract period specified in Article 1 above and be included in the project budget contained in Attachment. A. 2 C. Payment of costs incurred under this Contract is further governed by cost principles outlined in applicable Federal Office of Management and Budget (OMB) publications as follows: State or Local Governments OMB Circular A-128 Institutions of Higher OMB Circular A-133 Education and Other Nonprofit Organizations D. Costs claimed by the Contractor shall, be actual net costs, that is, the price paid minus any refunds, rebates or other items of value received by the Contractor that have the effect of reducing the cost actually incurred. In particular, fares and other passenger revenues shall be so identified on the Contractor's billing to the State. E. All major items or equipment, as described in the capital budget in Attachment A, shall be included in this contract as direct costs. The Contractor hereby certifies that items of equipment included in direct costs have been excluded from the indirect costs. F. Requests for payment are to be submitted to the State no more frequently than on a monthly basis, except as noted below, on invoice statements acceptable to the State. Additional documentation to support all costs incurred during the billing period may be required at the discretion of the State. As a minimum, each billing must be accompanied by a summary by budget line item which indicates the total amount authorized for each line item, previous expenditures, current period expenditures and the balance remaining in the line item. The original invoice with required documentation is to be submitted to the following address: Carl Utley, P.E. District Engineer Texas Department of Transportation P.O. Box 771 Lubbock, TX 79408-0771 G. The State will make payment within thirty days of the receipt of properly prepared and documented requests for payment. 3 The Contractor will submit a final billing within forty-five days of the contract termination date specified in Article 1 above. I. The Contractor shall make payments promptly to all subcontractors and suppliers. Failure to do so will be grounds for termination of this Contract by the State. The State shall not be responsible for the debts of the Contractor. ARTICLE 4. CONTRACT AMENDMENTS Changes in the scope, objectives, cost or duration of the Project authorized herein shall be enacted by written amendment approved before additional work may be performed or additional costs incurred. Any amendment so approved must be executed by both parties within the Contract period as specified in Article 1. ARTICLE 5. SUBCONTRACTS Any subcontract for professional services rendered by individuals or organizations not a part of the Contractor's organization shall not be executed without prior authorization and approval of the subcontract by the State. Subcontracts in excess of $25,OOO shall contain all required provisions of this Contract. No subcontract will, relieve the Contractor of its responsibility under this Contract. ARTICLE 6. RECORDS AND AUDITS A. The Contractor agrees to maintain financial records, supporting documents, statistical records and all other records pertinent to this Contract. B. The Executive Director of. the Texas Department of Transportation, the Texas State Auditor or any of their duly authorized representatives shall have access to the records described in Paragraph A above at all reasonable times during the contract period and for the period set forth in Paragraph C below for the purpose of making audits, examinations, excerpts and transcripts. C. Financial records, supporting documents, statistical records and all other records pertinent to the Contract shall be retained for a period of three years from final payment, with the following qualifications: 4 t (1) If any litigation, claim or audit is started before the expiration of the three-year period, the records shall be retained until all litigations, claims or audit findings involving the records have been resolved. (2) Records for nonexpendable property acquired in whole or in part with State funds shall be retained for three years after its final disposition. (3) When records are transferred to or maintained by. the State sponsoring agency, the three-year retention requirement is not applicable to the Contractor. D. The Contractor further agrees to include these provisions in each negotiated subcontract. E. Contractor audit procedures shall meet or exceed the single audit report requirements outlined in Office of Management and Budget (OMB) publications as follows: State or Local Governments OMB Circular A-128 Institutions of Higher OMB Circular A-133 Education and Other Nonprofit Organizations ARTICLE 7. FINANCIAL MANAGEMENT SYSTEMS The Contractor's financial management system,shall meet or exceed, the requirements of the 'Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments' (49 CFR 18). Those requirements include, but are not limited to: A. Accurate, current and complete disclosure of .the financial results of each grant program in accordance- with State reporting requirements. B. Records which identify adequately the source and application of funds for grant-supported.activities. These records shall contain information pertaining to grant awards and authorization, obligations, commitments, assets, liabilities, outlays and income. 5 C. Effective control over and accountability for all funds property and other assets. The Contractor shall adequately safeguard all such assets and shall assure that they are used solely for authorized purposes. D. Comparison of actual with budgeted amounts for each contract and relation of financial information to performance of productivity data, including the production of unit cost information, whenever appropriate and required by the State. E. Procedures for determining the eligibility for reimbursement and proper allocation of costs. F. Accounting records which are supported by source documentation. G. A systematic method to assure timely and appropriate resolution of audit finding and recommendations. ARTICLE 8. PROCUREMENT STANDARDS Contractor procurement standards shall meet or exceed the requirements of the 'Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments" (49 CFR Part 18), including insurance and bonding requirements. The Contractor shall have -written selection procedures which meet the minimum requirements of that document. The Contractor agrees to comply with applicable Buy America requirements set forth in Section 401 of the Surface Transportation Assistance Act of 1978 (P.L. 95-599) and the Federal Transit Administration's Buy America regulations at 49 CFR 660. The Contractor agrees to comply with the cargo preference requirements set forth in 46 USC 1241 and Maritime Administration regulations set forth in 46 CFR 381. The State must concur in the award of 'all purchase orders for nonexpendable personal property as defined in 49 CFR Part 18. The Contractor will meet all obligations incurred in its subcontracts with its equipment suppliers, to specifically include the prompt payment of monies due the supplier upon delivery of acceptable equipment. Should payment be delayed for any reason, the Contractor agrees not to operate any equipment that has been delivered without the express permission of the equipment vendor and to lend it the same protection it would its own equipment. R ARTICLE 9. PROPERTY MANAGEMENT The Contractor agrees to comply with the property management standards specified in the "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments' (49 CFR Part 18), in its control, use and disposition of property or equipment governed by those standards. Further, the Contractor shall comply with the property management standards adopted by the State in the Texas Administrative Code, Title 43, Chapter 31. In the event that any project facility and equipment are not used in the proper manner or are withdrawn from public transportation services, the Contractor shall immediately notify the State. The State reserves the right to direct the sale or transfer of property acquired under this Contract upon determination by the State that said property has not been fully and/or properly utilized. The Contractor shall maintain at least the minimum insurance on all vehicles and other nonexpendable personal property as required by the insurance regulations of the State of Texas. Irrespective of coverage by insurance, unless otherwise approved in writing by the State, in the event of loss or damage to project property, whether by casualty or fire, the fair market value will be the value of the property immediately before the casualty or fire. Unless otherwise approved by the State, in the event of loss due to casualty or fire, straight line depreciation of the asset, based on the industry standard for a useful life, shall be considered fair market value. The Contractor shall not execute any lease, pledge, mortgage, lien or other contract touching or affecting the State interest in any project facilities or equipment; nor shall the Contractor, by any act or omission of any kind, adversely affect the State interest or impair its continuing control over the use of project facilities or equipment. The Contractor shall notify the State immediately of theft, wreck, vandalism or other destruction of project -related facilities or equipment. ARTICLE 10. LABOR PROTECTION PROVISIONS The Contractor agrees to undertake, carry out and complete the Project under the terms and conditions determined by the Secretary of the United States Department of Labor to be fair and equitable, to protect the interests of employees affected by the Project and meeting the requirements of Section 13(c) of the Federal Transit Act. 7 ARTICLE 11. CHARTER AND SCHOOL BUS OPERATIONS A. The Contractor, or any subcontractor acting on its behalf, shall not engage in charter bus operations outside the Project area within which it provides regularly scheduled public transportation service, except as provided under Section 3(f) of the Federal Transit Act, 49 USC 1602(f), and regulations pertaining to Charter Bus Operations, set forth in 49 CFR Part 604 and any amendments that may be issued. Any subcontract entered into under these regulations is incorporated into this Contract by reference. B. The Contractor, or any subcontractor acting on its behalf, shall not engage in school bus operations, exclusively for the transportation of students or school personnel, in competition with private school bus operators, except as provided under Section 3 (g) of the Federal Transit Act, 49 USC 1602 (g) and regulations pertaining to School Bus Operations, set forth at 49 CFR Part 605 and any amendments thereto that may be issued. Any subcontract entered into .under these regulations is incorporated into this Contract by reference. ARTICLE 12.' MONITORING AND REPORTING A. The Contractor shall submit quarterly performance reports that provide as a minimum the following: (1) A comparison of actual accomplishments to the goals established for the period. (2) Reasons why established goals were not met. (3) Other pertinent information including, -when appropriate, analysis and explanation of cost overruns or high unit costs. B. The Contractor shall promptly advise the State in writing of events which have a significant -impact upon the Contract, including: (1) Problems, delays or adverse conditions which will materially affect the ability to attain program objectives, prevent the meeting of time schedules and goals, or preclude the attainment of project work units by established time periods. This disclosure shall be accompanied by a statement of the action taken, or contemplated, and any State assistance needed to resolve the situation. (2) Favorable developments or events which enable meeting time schedules and goals sooner than anticipated or 0 producing more work units than originally projected. ARTICLE 13. DISPUTES A. The Contractor shall be responsible for the settlement of all contractual and administrative issues arising out of procurements entered in support of contract work. B. The State shall act as referee in.all disputes regarding non - procurement issues, and the State's decision shall be final and binding. ARTICLE 14. REMEDIES Violation or breach of contract terms by the Contractor shall be grounds for termination of the Contract and any increased cost arising from Contractor's default, breach of contract or violation of terms shall be paid by the Contractor. This agreement shall not be considered as specifying the exclusive remedy for any default, but all remedies existing at law and in equity may be availed of by either party and shall be cumulative. ARTICLE 15. TERMINATION A. The State may terminate this Contract at any time before the date of completion whenever it is determined. that the Contractor has failed to comply with the conditions of the Contract. The State shall give written notice to the Contractor at least seven days prior to the effective date of termination and specify the effective date of termination and the reason for the termination. B. If both parties to this Contract agree that the continuation of the Contract would not produce beneficial results commensurate with the further expenditure of funds, the parties shall agree upon the termination conditions, including the effective date. In -the event that both parties agree. that resumption of the Contract is warranted, a new contract must be developed and executed by both parties. C. Upon termination of this Contract, whether for cause or at the convenience of the parties hereto, the State shall retain unlimited and royalty free usage rights of all finished or unfinished documents, data surveys, reports, maps, drawings, models,.photographs, etc., prepared by the Contractor. D. The State shall compensate the Contractor for those eligible expenses incurred during the contract period which are directly attributable to the completed portion of the work 9 covered by this Contract, provided that the work has been completed in a manner satisfactory and acceptable to the State. The Contractor shall not incur new obligations for the terminated portion after the effective date of termination. E. Except with respect to defaults of subcontractors, the Contractor shall be in default by reason of any failure in performance of this Contract in accordance with its terms, including any failure by the Contractor to progress in the performance of the work. Failure on the part of the Contractor to fulfill its obligations as set forth in this Contract will be waived by the State for causes due to Acts of God or force majeure. ARTICLE 16. GENERAL PROVISIONS A. CIVIL RIGHTS During the performance of this Contract, the Contractor, for itself, its assignees and successors in interest agrees as follows: (1) Compliance with Regulations: The Contractor shall comply with the regulations relative to non- discrimination in federally assisted programs of the Department of Transportation (hereinafter 'DOT•) Title .49, Code of Federal Regulations, Part 21 and 23 CFR 710.405(b), as they may be amended from time to time (hereinafter, referred to as the Regulations), which are herein incorporated by reference and made a part of this Contract. (2) Nondiscrimination The Contractor, with regard to the work performed by it during the Contract, shall not discriminate on the grounds of race, color, sex or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Contractor shall not participate .either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including, employment practices when the contract covers a program set forth in Appendix B of the Regulations. (3) Solicitation for Subcontracts, Including Procurements f Materials and Equipment: In all solicitations either by competitive bidding or negot iat ion. made by the Contractor for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this Contract and the Regulations relative to 10 nondiscrimination on the grounds of race, color, sex or national origin. (4) Information and Reports: The Contractor shall provide all information and reports required by the Regulations or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the State or the Federal Transit Administration (FTA) to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a Contractor is in the exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certify to the State or the Federal Transit Administration, as appropriate, and shall set forth what efforts it has made to obtain the information. (5) Sanctions for Noncompliance: In the .event of the Contractor's noncompliance with the nondiscrimination provisions of this Contract, the State shall impose such contract sanctions as it or the Federal Transit Administration may determine to be appropriate, including, but not limited to: (a) Withholding of payments to the Contractor• under the Contract until the Contractor complies, and/or (b) Cancellation, termination or suspension of the Contract, in whole or in part. (6) Incorporation of Provisions: The Contractor shall include the provisions of paragraphs (1) through (6) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the regulations or directivesissued pursuant thereto. The Contractor shall take such action with respect to any subcontract or procurement as the State or. the Federal Transit Administration may direct as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that, in the event a -contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the Contractor may request the State to enter into such litigation to protect the interests of the State, and, in addition, the Contractor may request the United States to enter into such litigation to protect the interests of the United States. 11 B. NONDISCRIMINATION ON THE BASIS,OF HANDICAP The Contractor agrees that no otherwise qualified handicapped person shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of or otherwise be subject to discrimination under the project. The Contractor shall insure that all fixed facility construction or alteration and all new equipment included in the project comply with applicable regulations regarding Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefitting from Federal Financial Assistance, set forth in 49 CFR Part 27, and any amendments thereto, and the Americans with Disabilities Act. C. DISADVANTAGED BUSINESS ENTERPRISE PROGRAM REQUIREMENTS It is the policy of the Department of Transportation and the State that Disadvantaged Business Enterprises as defined in the Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102-240, Sec. 1003, 105 Stat. 1914, 1918-1922 (1922), shall have the maximum opportunity to participate in the performance of contracts ad subcontracts financed in whole or in -part with Federal funds. Consequently, the Disadvantaged Business Enterprise requirements of -Pub. L. No. 102-240, Sec. 1003 apply to this contract as follows: The Contractor agrees to insure that Disadvantaged Business Enterprises (DBE) as defined in Pub. L. No. 102-240, Sec. 1003 have the maximum opportunity to participate in the performance of contracts and subcontracts financed in .whole or in part with Federal or State funds. In this regard, the Contractor shall take all necessary and reasonable steps to meet the Disadvantaged Business Enterprise goal for this contract. The Contractor shall not discriminate on the basis of race, color, national origin or sex in the award and performance of contracts funded in whole or in part with Federal or State funds. These requirements shall be physically included in any subcontract. The percentage goal for Disadvantaged Business Enterprise participation in the activities to be performed under this contract is a minimum 10% of the contract dollars available for contracting opportunities as defined in P. L. 102-240, Sec. 1003. The contractor shall submit to the State reports on DBE compliance efforts and documentation of good faith efforts to meet the DBE goal. This information shall be provided to the State on the format(s) and at time intervals prescribed by the State. 12 Failure to carry out the requirements set forth above shall constitute a breach of contract and, after the notification of the State, may result in termination of the contract by the State or other such remedy, which may include reductions in future grant awards, as the State deems appropriate. D., EQUAL EMPLOYMENT OPPORTUNITY The Contractor agrees to comply with Executive Order 11246 titled 'Equal Employment Opportunity• as amended by Executive Order 11375 and as supplemented in Department of Labor Regulations (41 CFR, Part 60). E. AFFIRMATIVE ACTION The Contractor warrants that affirmative action programs as required by the rules and regulations of the Secretary of Labor (41 CFR 60-1 and.60-2) have been developed and are on file. F. SPECIAL.PROVISIONS FOR CONSTRUCTION OR REPAIR CONTRACTS (1) Contract Work Hours and Safety Standards.Act The Contractor agrees to comply with Sections 103 and 10.7 of the Contract Work Hours and Safety Standards.Act (40 USC, Part 327-330) as supplemented by Department of Labor Regulations (29 CFR, Part 5). (2) Copeland 'Anti -Kickback" Act The Contractor agrees to comply with the Copeland 'Anti - Kickback' Act (18-USC 874) as supplemented in Department of Labor regulations (29 CFR, Part 3). (3) Davis -Bacon Act The Contractor agrees to comply with the provisions of. the Davis -Bacon Act (40 USC 176a to 9-7) as supplemented by Department of Labor regulations (29.CFR, Part .5). (4) Relocation and Land Acquisition The terms of the Department of Transportation regulations 'Uniform Relocation and Real Property Acquisition for Federal and Federally Assisted Programs• (49 CFR Part 25) are applicable to this Contract. (5) Insurance and Bonding. The Contractor shall comply with insurance and bonding requirements as established in 49 CFR Part 18. 13 (6) Signs The Contractor shall cause to be erected at the site of construction, and maintained during construction, signs satisfactory to the State and. the United States Department of Transportation identifying the project and indicating that the Government is participating in the development of the project. G. ENVIRONMENTAL PROTECTION AND ENERGY EFFICIENCY The Contractor agrees to comply with all applicable standards, orders or requirements issued under Section 306 of the Clean Air Act (42 USC 1857(h]; Section 508 of the Clean Water Act (33 USC 1368); Executive Order 11738 and Environmental Protection Agency Regulations (40 CFR, Part 15-). The Contractor further agrees to report violations to the.State. The Contractor agrees to recognize 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 (P.L. 94-163). H. CONTROL OF DRUG USE The Contractor agrees.to comply with the terms of the Omnibus Anti -Drug Abuse Act of 1988 (P.L. 100-890, Title.V, Subtitle D) . I. SUSPENSION AND DEBARMENT The terms. of the Department of- Transportation regulation, 'Suspension. and Debarment of Participants in DOT Financial Assistance Programs' set forth at 49 CFR Part 29, are applicable to this Contract and the Contractor must complete the Contractor Certification which is included as Attachment B. Further, any subcontractor employed by the Contractor is also bound by the terms of 49 CFR Part 29 and must complete a Contractor Certification (Lower Tier) form. 14 J. RESTRICTIONS ON LOBBYING Pursuant to Section 319 of P. L. 101-121, which generally prohibits recipients of Federal funds from using those monies for lobbying purposes, the Contractor shall comply with the attached Special Provision 'New Restrictions on Lobbying•, which is included as Attachment C. K. PROHIBITED ACTIVITIES The Contractor or any subcontractor shall not use Federal or State assistance funds for publicity or propaganda purposes designed to support or defeat legislation pending before Congress.or the Texas Legislature. No member of or delegate to the Congress of the United States shall be admitted to any share or part of this Contract or to any benefit arising therefrom. No member, officer or employee of the. Contract during this tenure or one year thereafter shall have -any interest, direct or indirect, in this Contract or the proceeds thereof. Texas Transportation Commission policy mandates that employees of the Department shall not accept any benefits, gifts or favors from any person doing business or who reasonably speaking may do business with the State under this Contract. The only exceptions allowed are ordinary business lunches and items that have received the advanced written approval of the State Executive Director for the Texas Department of Transportation. Any persons doing business with or who may reasonably speaking do business with the State under this Contract may not make any offer of benefits, gifts or favors to Departmental employees, except as mentioned hereabove. Failure on the part of the Contractor to adhere to this policy may result in the.termination of this Contract. L. ASSURANCES The Contractor will comply -with Texas Civil Statutes, Article 5996a, by insuring that no officer, employee or member of the Contractor's governing board or of the Contractor's subcontractor shall vote or confirm the employment of any person related within the second degree by affinity or third degree by consanguinity to any member of the governing body or 15 M. N. to any other officer or employee authorized to employ or supervise such person. This prohibition shall not prohibit the employment of a person who shall have been continuously employed for a period of two years prior to the election or appointment of the officer, employee, governing body member related to such person in the prohibited degree. The Contractor will insure that all information collected, assembled or maintained by the applicant relative to this project shall be available to the public during normal business hours in compliance with Texas Civil Statutes, Article 6252-17a, unless otherwise expressly provided by law. The Contractor will comply with Texas Civil Statutes, Article 6252-17, which requires all regular, special or called meetings of governmental bodies to be open to the public, except as otherwise provided by law or specifically permitted in the Texas Constitution. PATENT RIGHTS If any invention, improvement or discovery of the Contractor or any of its subcontractors is conceived or first actually reduced to practice in the course of or under this Project, which invention, improvement or discovery may be patentable under the Patent Laws of the United States of America or any foreign country; and if said invention, improvement or discovery has not already become the property of the State under Article 15.0 above; the Contractor shall immediately notify the State and provide a detailed report. The rights and responsibilities of the Contractor, subcontractors and the United States Government with respect to such invention will be determined in accordance with applicable Federal laws, regulations, policies and any waivers thereof. Further, the Contractor shall comply with the provisions of 41 CFR, Part 1-9. COPYRIGHTS The State and the United States Department of Transportation shall have the royalty -free, non-exclusive and irrevocable right to reproduce, publish or otherwise use, and to authorize others to use, the work for government purposes. 0. INDEMNIFICATION To the extent permitted by law, the Contractor shall indemnify and save harmless the State from all claims and liability due to activities of itself, its agents or employees, performed under this agreement and which result from an error, omission or negligent act of the Contractor or of any person employed by the Contractor. The Contractor shall also save harmless the State from any and all expenses, including attorney fees which might be incurred by the State in litigation or otherwise resisting said claim or liabilities which might be imposed on the State as a result of activities by the Contractor, its agents, or employees. P. SUCCESSORS AND ASSIGNS The Contractor binds itself, its successors, assigns, executors and administrators in.respect to all covenants of this agreement. The Contractor shall not sign, sublet or transfer its interest .in this agreement without the written consent of the State. Q. CONTRACTOR ACKNOWLEDGEMENT The Contractor acknowledges that it is not an agent, servant or employee of the State and is responsible for its own act and deeds and for those of its agents or employees during the performance of the contract work. R. LEGAL CONSTRUCTION In case any one or more of the provisions contained in this agreement shall for any reason be .held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof and this agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. S. PRIOR AGREEMENTS This agreement constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting the within subject matter. r 17 IN TESTIMONY WHEREOF, the parties hereto have caused these presents to be executed. STATE OF TEXAS Certified as being executed for the purpose and effect of activating and/or carrying out the orders, established policies, or work programs heretofore approved and authorized by the Texas Transportation Commission under the authority of Minute Order No. 105871. APPR VED: 0 By: •Director o Public Transportation Date: - Z 2- 0i Title: Mayor Date: September 14, 1995 ATTEST: kk &� Betty K. Johnsol City Secretary Date: September 14, 1995 RECO DED FOR EXECUTION: APPROVED AS TO �ONTENT: Dis r ct Engineer, Lubbo v o Sote10 Dist&ict First Assistant City Manager APPROVED AS TO FOR14: arold Willard Assistant City Attorney 18 8/96 ATTACHMENT•A CONTRACT BUDGET CONTRACTOR: City of Lubbock CONTRACT NUMBER: 516XXF6009 STATE PROJECT NO.: URB 9601 (005) 1 FTA NUMBER: LINE ITEM 0 DESCRIPTION TOTAL FEDERAL STATE LOCAL CAPITAL XX.XX.XX 0 0 0 0 XX.XX.XX 0 0 0 0 XX.XX.XX O ........... 0 ........... 0 ------•--- 0 0 0 ----------- ERR 0 ERR 0 ERR PLANNING XX.XX.XX 0 0 0 0 0 0 ERR O ERR 0 ERR OPERATING XX.XX.XX 3,670,000 1,500,000 342,900 1,527,100 3,670.000 1,500,000 41% 342,900 9% 1,827,100 50% TOTAL 3,670,000 1.500,000 41% 342,900 9% 1,827,100 50% FEDERAL FUNDING SPLIT: TX-90-X00? TX-90-X00? TOTAL CAPITAL 0 0 0 PLANNING 0 0 0 OPERATING 1,500,000 0 1,500,000 1.500.000 0 -1,500,000 STATE FUNDING SPLIT: FORMULA CSP DISCRETIONARY TOTAL CAPITAL 0 0 0 0 PLANNING 0 0 0 0 OPERATING 342,900 0 0 342,900 342,900 0 0 342,900 TX 80-XG04 (SCHOLARSHIP) 1,000 TOTAL REIMBURSABLE AMOUNT 343,900 Debarment Certification (Negotiated Contracts) (1) The CONTRACTOR certifies to the best of its knowledge and belief, that it and its principals: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from covered transactions by any federal department or agency; (b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or perform- ing a public* transaction or contract under a public transaction; violation of eaeral or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicated for or otherwise criminally or civilly charged by a governmental entity* with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and (d) Have not within a three-year period preceding this application/proposal had one or more public transactions* terminated for cause or default. (2) Where the CONTRACTOR is unable to certify to any of the statements in this certification, such CONTRACTOR shall attach an explanation to this certification. ATTEST: * deral, state or local etty W. Johnso Mayor Title City Secretary C417ino Sotelo v First Assistant City Manager APPROVED AS TO FORM: September 14, 1995 Date 44-0� Harold Willard Assistant City Attorney Form 1734-A 4-89 Lower Tier Participant Debarment Certification (Negotiated Contracts) David R. Langston, Mayor, , being duly sworn (insert name of certifying oflicial) or under penalty of perjury under the laws of the United States, certifies that neither City of Lubbock nor its (insert name of lower tier participant) principals are presently: • debarred, suspended, proposed for debarment, • declared ineligible, • or voluntarily excluded from participation in this transaction by any Federal department or agency %ur-re hL,'643 re itie:n ifiad io ver tier par.;zdp .n&,.: ; unable to cent: sy to sny of f1e above statements in this certification, such prospective participant shall indicate below to whom the exception applies, the initiating agency, and dates of action. Exceptions will not necessarily result in denial of award, but will be considered in determining contractor responsibility. Providing false information may result in criminal prosecution or administrative sanctions. EXCEPTIONS: Mayor Title ATTEST: Betty Johnso City Secretary APPROVED• • (a wino Sotelo v First Assistant City Manager APPROVED AS TO FORM: September 14, 1995 Date of Certification AL2 / Harold Willard Assistant City Attorney Form 1734 Rev. 4-89 Certification Information This certification is to be used by contractom-pursuant to 49 CFR 29 when any of the following occur: • any transaction between the contractor and a person (other than a procurement contract for goods and services), regardless of type, under a primary covered transaction • any procurement contract for goods or services when the estimated cost is $25,000 or more • any procurement contract for goods or services between the contractor and a person, regardless of the amount, under which the person will have a critical influence on or substantive control over that covered trans- atotion. Such,persons include principal investigators and ' P P � P g providers o� , .. federally -required audit services. A procurement transaction is the process of acquiring goods and services. A nonprocurement transaction is the granting of financial assistance to entities to assist the grantor in meeting objectives that are mutually beneficial to the grantee and grantor. A COPY OF THIS CERTIFICATION IS TO BE FURNISHED TO AUTHORIZED REPRESENTATIVES OF THE STATE OR THE U.S. DEPARTMENT OF TRANSPORTATION UPON REQUEST. CERTIFICATION OF RESTRICTIONS ON LOBBYING I, David R. Langston, Mayor , hereby (Name and Title of Grantee Official) certify on behalf of City of Lubbock that: (Name of Grantee) (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 any 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 influencing or attempting to a an. .-Qffice.r:.,,or . employee of , any agency, a meirber 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 compliance with its instructions. (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 subreceipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance is 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 section 1352, title 31, U.S. Code. 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. Executed this 14th ATTEST: Betty N.'Johnsop City Secretary APPROM AS it0 CONTENT: Gavino Sotelo First Assistant City Manager David R. Langston, Mayor Title of Authorized Official APPROVED AS TO FORM:, J Harold Willard Assistant City Attorney Federal Register / Vol. M. No. 243 / Wednesday. December 20. im / Notices 52323 DISCLOSURE OF L0138YING ACTIVITIES 0)Y-0DN Complete this form to disclose lobbying activities pursuant to 71 U.S C. 1751 (See reverse for pubLi. burden drmloswe.) I. Type of federal Action: i Stalin of federal,Action " 7, Report Type: ❑a. contract b. a. bidofferrapplica on ❑ a. initial fill ❑ b. Inge Grant b. Initial award material e. cooperative agreement d. ban C. pcmt,swa For Materiii Clumge Dar. e. ban fuaranlee Year quaner }. loan insurance date of last report 4. Name and Addrm of RepoAi% tatkyt. It fit Eelky b Na 41s fabawardee, EiderName Prime O subawardee and of PdMe: Tier ! . If known: C resslonal District, dknowrr. C District. if known: 6. Federal Departmenf.Agencr: 7. federal Program N&rrwDescripUorc CFDA Number. d applicable: S. Federal Action Number, d known: I. Award Amount d known: s 10. a. Name and Address of lobbying Entity b, Individuals Pedorndna services (orchid++ address d first JAM (it sndry dual. last name, name. .different from No. 10 (last nacre, foil name. MI), �ttad frnr,nwtrer S��+r t s<-tlt•A r/nrcnl,nn� 11. Amount of Payment icheck all M21 apply) U. Type of Payment (check all that app4-): s O am-&? O planned O a. retainer O b. one-time fee O e. Commission 12. form of Payment (check all that apply) O S. cash O d. eontin jent tee O b. in -kind specify: nature O e. deferred O f. other, specify: value 14. Brief Description of Services Performed or to be Performed and Dateis) of Service. Including oNicesM tmploree(sL or Memberts) contacted tot Payment Indicated In item 11: aruA CO*Wr NW frill M wKti 1S. Continuation Sbeel(s) SNIL-A attached O Yes O NO If:. r+rel+ur+or� �� Mr1►ifr11r a+. s rdrrd N bl� 1+ YaC �' -y� W"W p13 nr /eckaw of blkt+r awwlrl • a "Oftwo s- a An coon ~ 1Yr1¢• w (/art fir " s w do" ~ Md hint NanIC P V MK MM .■ .Me.. W%WW Onto 1%4 Mcbr" ■ wp..e WMWM r 11 V b c qs1 nM d~00 ./ to wyw+.e M as C P#" MM* Tick ae ml b awtabb lit ft*k ..aa.on Uy q~ son "b M ow wo,-W dwbuov " be w4wo w a ewr rw/ry of no M M 11, ono ..d "O1 am" 1%W "CAM b Telephone No.: Date: s b w WOb w.. Federal Use OMr- 491hM nd (e liar a!`.bdWU*& strlduil rem • 11t 52324 federal Register J Vo). K No. 243 1 Wednesday, December 20. llltig f notices INSTRUCTIONS FOR COMPLETION OF SF-LLL, DISCLOSURE OF LOBBYING ACTIVITIES This disJoswe form (hall be completed by the reporting entity, whether subawardee or prime Federal recipient, at the Initiation or receipt of a covered Federal action, or a material change to a previous filing, pursuant to title 31 U.S.C. section 13S2. The Sling of a form Is required for each payment or apemment to make payment to any lobbying entity for Influencing or attempting to Influence 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 a covered Federal action. Use the SF•LLL-A Continuation Sheet for additional information if the space on the form is inadequate. Complete all items that apply for both the Initial Sling and material lunge report. Refer to the implementing guidance published by the Office of Management and Budget for additional information. 1. identify the type of covered Federal action for which lobbying activity Is "or has been secured, to Influence the outcome of a covered Federal action. 2. Identify the tutus of the covered Federal action. 3. Identify the appropriate classification of this report. If this Is a fotlowup report caused by a material change to the Information previously reported, enter the year and quarter in which the change occurred. Enter the date of the last previously submitted report by this reporting entity for this covered Federal action. 4. Enter the full name, address, city, state and trip code of the reporting entity. Include Congressional District, if known. Check the appropriate classification of the reporting entity that designates If It is, or expects to be. a prime or subaward recipient. Identify the tier of the subawardee, e.g., the first subawardee of the prime is the 1st tier. Subawards include but are not limited to subcontracts, subgrants and contract awards under grants. S. If the organization filing the report in item 4 checks `Subawardee", then enter the full narr.e, address, cjt}, state and tip code of the prime Federal recipient. Include Congressional District, if known. 6. Enter the name of the Federal agency making the award or ban commitment. include at least one organizational level below agency name, if known. For example, Department of Transportation, United States Coast Guard. 7. Enter the Federal program name or description for the covered Federal action (item 1). If known, enter the full Catalog of Federal Domestic Assistance (CFDA) number for grants, cooperative agreements, loans, and loan commitments. S. Enter the most appropriate Federal identifying number available for the Federal action identified in item t (e.g., Request for Proposal (RFP) number, Invitation for Bid (IFB) number, grant announcement number, the contract, grant, or loan award number, the application/proposal control number assigned by the Federal agency). Include prefixes, e.g., •RFP-DE-10-001 " 9. For a covered Federal action where there has been an award or ban commitment by the Federal agency, enter the Federal amount of the awardloan commitment for the prime entity identified in item 4 or 5. 10. (a)Enter the full name, address, dty, state and trip code of the lobbying entity engaged by the reporting entity Identified in item 4 to influence the covered Federal action. (b)Enter the full names of the individual(s) performing services, and include F,il! address if different from 10 (a). Enter Last Name, First Name, and Middle Initial (MI). 11. Enter the amount of compensation paid or reasonably expected to be paid by the reporting entity (item 4) to the lobbying entity (item 10). Indicate whether the payment has been made (actual) or will be made (planned). Check all boxes that apply. If this is a material change report. enter the cumulative amount of payment made or planned to be made. 12. Check the appropriate bou(es). Check all boxes that apply. If payment fs made through an unkind contribution, specify the nature and value of the in•kind payment. 13. Check the appropriate box(es). Check an boxes that apply. If other, specify nature. 14. Provide a specific and detCed description of the Services that the lobbyist has pedormed, or will be expected to perform, and the date(s) of any services rendered. Include all pprreeparaort' tand related activity, ntine spent just tispent in actual contact with Federal offxials. Identify the Federal offiolal(s) or employee(s) contacted or the' officer(s), employees), or Member(s) of Congress that were contacted 1S. Check whether or not a SF-LLL,A Continuation Sheets) Is Mad*& 16. The certifying official shall sign and date the kxmk print h)slher name, title, and telephone number. Public m ortvsg b w*n for tha cotlection of information is estmaed to average 30 mintues per response. inckidng time for reviewing instructions. searc" txrstmng data sources, gathering and rnnnuawng the data needed. and corn*t,ng and reneti.+ng tfie cotsecuon of Information. Send cornrr+erw regardrng Ov burden estimate or any oche aspect of this coitecton of Mkirr +aton. incwng suggestsorn for reducing din burdim to the Office of managernent and /ud"L Paperwori Keductson Protect (034t1-0046). Wnhriglon. D C 20S03 Federal Register / Vol. $4. No. 243 / Wednesday. Decembcr 20. 1989.1 Noticcs 52325 DISCLOSURE OF LOBBYING ACTIVITIES o�won.. CONTINUATION SHEET &M&M=d w L" &W" jU#Wwd P" • <uA 52326 Federal Regisler ! Vol. 54. No. 243 / Wedrnesday. December 20. 1989 ! Notices Appendix C to Part — Contract Clause NEW RESTRICTIONS ON LOBBYING (a) Definitions. As used in this clause, "Agency", as defined in 5 U.S.C. 552(f)., includes Federal executive departments and agencies as well as independent regulatory commissions and Government corporations, as defined in 31 U.S.C. 9101(1). "Covered Federal action" means any of the following Federal ,actions: (1) The awarding of any Federal contracts (2) The making of any Federal grants (3) The making of any Federal loan; (4) The entering into of any cooperative agreement; and, (5) The extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. Covered Federal action does not include receiving from an agency a camr..itment providing for the United States to insure or guarantee a loan. "Indian tribe" and "tribal organization" have the meal►ing provided in section 4 of the Indian Self -Determination and Education Assistance Act (25 U.S.C. 450B). Alaskan Natives are .included under the definitions of Indian tribes in that Act. "Influencing or attempting to influence" means making, with the intent to influence, any communication to or appearance before 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 any covered Federal action. "Local government" means a unit of government in a State and, if chartered, established, or otherwise recognized by a State for the performance of a governmental duty, including a local public authority, a special district, an intrastate district, a council of governments, a sponsor group representative organization, and any other instrumentality of a local government. "Officer or employee of an agency* includes the following Individuals who are employed by an agency: (1) An individual who is appointed to a position iO the Government under title 5, U.S. Code, including a position under a temporary appointment; (2) A member of the uniformed services as defined in section 101(3), title 37, U.S. Code; (3) A. special Government employee as defined in section 202, title 18, V.S. Code; and, 21 tedera) Kepster / ol. 54. No.:,*s / N eanesday, UecErucr 20. I4 H j Notices 52327 (4) An individual who is a member of a Federal .advisory committee, as defined by the Federal Advisory Committee Act, title 5, U.S. Code appendix 2. "Person" means an individual, corporation, -company, association, authority, firm, partnership, society, State, and local government, regardless of whether such entity is operated for prof it or not for profit. This term. excludes an Indian tribe, tribal organization, or any other Indian organization with respect to expenditures specifically permitted by other Federal law. "Reasonable compensation" means, with respect to a regularly employed officer or employee of any person, compensation that is consistent with the normal compensation for such officer or employee for work that is not furnished to, not funded by, or not furnished in cooperation with the Federal Government. "Reasonable payment" means, with respect to professional and other technical services, 'a payment in an amount that is consistent with the amount normally paid for such services in the private sector. "Recipient" includes all contractors and subcontractors at any tier in connection with a Federal contract. The term excludes an Indian tribe, tribal organization, or any other Indian organization with respect to expenditures specifically permitted by other Federal law. "Regularly employed" means, with respect to as officer or employee, of a person requesting or receiving a Federal contract, an officer or employee who is employed by such person for at least 130 working days within one year immediately preceding the date of the submission that initiates agency consideration of such person for receipt of such contract. An officer or employee who is employed by such person for less than 230 working days within one year immediately preceding the date of the submission that initiates agency consideration of such person shall be considered to be regularly employed as soon as he or she is employed by such person for 130 working days. "State" means a State of the United States, the District of Columbia, the Comnonvealth of Puerto Rico, a territory or possession of the United States, an agency or instrumentality of a State, and a multi -State, regional, or interstate entity having governmental duties and powers. (b) Prohibition. (1) Section 1352 of title 31, U.S. Code provides in part that no appropriated funds may be expended by the recipient of a Federal contract, grant, loan, or cooperative agreement to pay 22 6232Z Federal Register / Vol. 54. No. 243 / Wednesday. December 20, 1989 / Notices any person` for 'influencing or attempting to influence 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 any of the following covered Federal ,actions: 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) The prohibition does not apply as follows: (i) Agency and legislative liaison by Own Employees. (A) The prohibition on the use of appropriated funds, in paragrapWI) of this section, does not apply in the case of a payment or reasonable compensation made to an officer or employee of a person requesting or receiving a Federal contract if the payment' is for agency and legislative' liaison activities not directly related to a covered Federal action. (biG O (B) For purposes of paragraph& (A) of this section, providing any information specifically requested by an agency or Congress is allowable at any time. [bNz)t:) (C) For purposes of paragraph (A) of this section, the following agency and legislative liaison activities are allowable at any time only where they are not related to a specific solicitatio for any covered Federal action: 1 %) Discussing with an agency (including individual demonstrations) the qualities and characteristics of the person's products or services, conditions or terms of sale,, and service capabilit4es; and, 4 (III) Technical discussions and other activities regarding the, application or adaptation of the person's products or services for an agency's use. (D) For purposes of paragraph (A) of this section, the following agency and legislative liaison activities are allowable only where they .are prior to formal solicitation of any covered Federal Action: ? (X) Providing any information not specifically requested but necessary for an agency to make an informed decision abNt initiation of a covered Federal action; i) Technical discussions regarding the preparation of an unsolicited proposal prior to its official submission; and, = (Ili) Capability presentations by persons seeking awards from an agency pursuant to the provisions of the Small Business Act, as amended by 'Public Law 95-507 and other subsequent amendments. 23 Federal Register / Vol. 54. No. 243 / Wednesday. December 20. 1989 / Notices 52329 (E) Only those activities expressly authorized by paragrapliA(i) of this section are allowable under paragraph (i). (ii) Professional and technical services by Own Employees. (A) The prohibition on the use of appropriated funds, in paragraph&l) of this section, does not apply in the case of a payment or reasonable compensation made to an officer or employee of a person requesting or receiving a Federal contract or an extension, continuation, renewal, amendment, or modification of a Federal contract if payment is for professional or technical .services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal contract or for meeting requirements imposed by or pursuant to law as a condition for receiving that Federal contract. (b)(2.) (0 1B) For purposes of paragrapha (A) of this section, "professional and technical services" shall be limited to advice and analysis directly applying any professional or technical discipline. For example, drafting of a legal document accompanying a bid or proposal by a lawyer is allowable. Similarly,. technical advice provided by an engineer on the performance or operational capability of a piece of equipment rendered directly in the negotiation of a contract is allowable. However, communications with the intent to influence made by a professional (such as a licensed lawyer) or a technical person (such as a licensed accountant) are not allowable under this section unless they provide advice and analysis directly applying their professional or technical expertise and unless the advice or analysis is rendered directly and solely in the! preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence made by a lawyer that do not provide legal advice or analysis directly and solely related to the legal aspects of his or her client's proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services. Similarly, communications with the intent to influence'made by an engineer providing an engineering analysis prior to the preparation or submission of a bid or proposal are not allowable under this section since the engineer is providing technical services but not directly in the preparation, submission or negotiation of a covered Federal action. (C) Requirements imposed by or pursuant to law as a condition for receiving a covered Federal award include those required by law or regulation, or reasonably expected to be required by law or regulation, and any other requirements in the actual award documents. 24 S2330 yFe&ra! Reglstet / Vol. 54. No. 243 / Wednesday. December 20. 19" / Notices '(D) Only those services expressly authorized by paragraph (ii) of this section are allowable under paragraph CbiCa) (iii) Reporting for Own Employees. No reporting is required with respect to payments of reasonable compensation made to regularly employed officers or employees of a person. (iv) professional and technical services by Other than Own Employees. (A) The prohibition on the use of appropriated funds, in paragraphic 1) of this section, does not apply in the case of any reasonable payment to a person, other than an officer. or employee of a person requesting or receiving a covered Federal action, if the payment is for professional' or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal contract or for meeting requirements imposed by or pursuant to law as -a condition for receiving that Federal contract. CON C" r) (B) For purposes of paragraphs (A) of this section, "professional and technical services" shall be limited to advice and 'analysis directly applying any professional or technical discipline. For example, drafting of a legal document accompanying a bid or proposal by a lawyer is allowable. Similarly, technical advice provided by an engineer on the performance or operational capability of a piece of equipment rendered directly in the negotiation of a contract is allowable. I3owever, communications with the intent to influence made by a professional (such as a licensed lawyer) or a technical person (such as a licensed accountant) are not allowable under this section unless they provide advice and analysis directly applying their professional or technical expertise and unless the advice or analysis is rendered directly and solely in the preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence made by a lawyer that do not provide letial advice or analysis directly and solely related to the legal aspects of his or her client's proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services. Similarly, communications with the intent to influence made by an -engineer providing an engineering analysis prior to the preparation or submission. of a. bid or proposal are not allowable under this section since the engineer is ,providing technical services but not directly in the preparation, submission or negotiation of a covered Federal action. 25 Federal Reotler 1 Vol. $4. No. 243 1 Wedncedey, December 2o, 19P.3 / notices G:831 (c) Requirements imposed by or pursdant Co law as a condition for receiving'8 covered Federal award include those required by law or regulation, 'or reasonably expected to be required by law or regulation, and any other requirements in the actual award documents. (D) Persons other than officers or employees of a person requesting or receiving a covered Federal action include consultants and trade associations. CbXQ (E) only those services expressly authorized :by paragraphs (iv) of this section are allowable under paragraph (iv) . (e) Disclosure. (1) Each person rho requests or receives from an agency a Federal contract shall file with that agency a certification, set forth in _,___, that the person has not made, and will not make, any payment prohibited by paragraph (b) of this clause. (2) Each person who requests or receives from an agency a Federal contract shall file with that agency a disclosure form, Standard Form -ILL, eDisclosure of Lobbying Activities," if such person has made or has a reed to make any payment using nonappropriated funds (to profits from any covered Federal action), which would be prohibited under paragraph (b) of this clause if paid for with appropriated funds. (3) Each person shall file a disclosure form &t the end of each calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of the information contained in any disclosure form previously filed by such person under paragrapb(cX2) of this section. An event that materially affects the accuracy of the information reported includes: (i) A cumulative increase of $25,000 or more in the amount paid or expected to be paid for influencing or attempting to influence a covered Federal actions or (ii) A change irr the person(s) or individual(s) influencing or attempting to influence a covered FeCleral actions or, (iii) A change in the officer(s), employes(s), or 14amber(s) contacted to influence or attempt to influence a covered Federal action. (4) Any person who requests or receives from a 'Person, referred to in paragraph(t)(1) of this section a subcontract exceeding $100,000 at any tier under a Federal contract shall file a certification, AM a disclosure form, if required, to the next tier above. 26 G233Z Federal Register / Vol. 54, No. 243 / Wednesday. Decpml,rr 2p, 19s9 /,Natice& i (5) "All disclosure forms, but not certifications, shall be forwarded from tier to tier until received by thle person referred to in paragraph(LZ1) of this section. That person shall forward all disclosure forms to the agency. (d) Agreement. In .accepting any contract resulting from this solicitation, the person cubnitting the ,offer'agrees not to make any payment prohibited by this clause. (a) Penalties. (1) Any person who makes an expenditure prohibited under. paragraph (b) of this clause shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure. (2) Any person who rails to file or amend the disclosure fora to be filed or amended if required by this clause, stall be subject to a civil penalty of.not less than $10,000 and not acre than 0,100,600 for each such failure. (3) Contractors may rely without .liability on the representations made by their subcontractors in the certification End disclosure form. (f) Cost allowability. Nothing in this clause is to be interpreted to make allowable or reasonable any costs which would be unallowable or unreasonable in accordance with Part 31'of the Federal Acquisition Regulation. Conversely, costs made specifically unallowable by the requirements in this clause will not be made allowable under any of the provisions of Part 31 of the Federal Acquisition Regulation. .FR Doc. 09-W32 Filed i:_%- 3 lL-w pm) CUM CODE s„ "l-C (End of Clause) 27 I