FHWA_Terms_&_Conditions.pdf

UNIFORM TERMS AND CONDITIONS

FEDERAL AND STATE CONTRACT REQUIREMENTS

(Project Specific Contract) Attachment C- Uniform Terms and Conditions

ECS Rev 11~14~16

SECTION 4.0 UNIFORM TERMS AND CONDITIONS

4.01 EMPLOYMENT OF PERSONNEL OF PUBLIC AGENCIES

4.02 FEDERAL DEBARMENT AND SUSPENSION

4.03 SUBCONTRACTS

4.04 ANTI-LOBBYING

4.05 RECORDS RETENTION, MAINTENANCE AND AUDIT

4.06 REVIEWS AND INSPECTIONS

4.07 NONDISCRIMINATION

4.08 AFFIRMATIVE ACTION (FOR FEDERAL-AID CONTRACTS)

4.09 PARTICIPATION BY DISADVANTAGED BUSINES ENTERPRISES

4.10 ENVIRONMENTAL PROTECTION

4.11 ENERGY CONSERVATION

4.12 OWNERSHIP OF DATA

4.13 FRAUD AND FALSE STATEMENTS

4.14 FEDERAL IMMIGRATION AND NATIONALITY ACT

4.15 ERRORS AND OMISSIONS

4.16 TERMINATION FOR DEFAULT OR CONVENIENCE

4.17 PROMPT PAY

4.18 FINAL/INCURRED COST AUDIT

4.19 KEY PERSONNEL

4.20 CONFLICT OF INTEREST

4.21 CONSULTANT/CONTRACTOR CONFLICT OF INTEREST

4.22 CONSULTANT OR SUBCONSULTANT ENDORSEMENT OF PLANS

4.23 PROFESSIONAL CONDUCT AND PROFESSIONAL REGISTRATION

(Project Specific Contract) Attachment D- Uniform Terms and Conditions

ECS Rev 11~14~16

SECTION APPENDICES

A. TITLE VI / NONDISCRIMINATION ASSURANCES (APPENDICES A AND E)

B. PROFESSIONAL SERVICES DBE SPECIAL PROVISIONS

C. CONSTRUCTION AND PROFESSIONAL SERVICES/DESIGN CONTRACTS PROMPT PAY AND PAYMENT REPORTING

PROVISIONS

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4.01 EMPLOYMENT OF FEDERAL HIGHWAY ADMINISTRATION AND CITY OF TUCSON’S PERSONNEL

The Contractor shall not employ any person or persons in the employ of the Federal Highway Administration or of the CITY OF TUCSON or any of its boards, agencies, or commissions, for any work required by the terms of this Contract, without prior written permission of the Federal Highway Administration or of the State.

4.02 FEDERAL DEBARMENT AND SUSPENSION

a. By signature on this Contract, the Consultant certifies its compliance, and the compliance of its

Subconsultants or subcontractors, present or future, by stating that any person associated therewith in the capacity of owner, partner, director, officer, principal investor, project director, manager, auditor, or any position of authority involving federal funds:

1. Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any Federal Agency;

2. Does not have a proposed debarment pending;

3. Has not been suspended, debarred, voluntarily excluded or determined ineligible by any Federal Agency within the past three (3) years; and

4. Has not been indicted, convicted, or had a civil judgment rendered against the firm by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years as specified by Code of Federal Regulations 49 CFR paragraph 29.305(a).

b. Where the Consultant or its Subconsultant is unable to certify to the statement in Section a.1.

above, the Consultant or its Subconsultant shall be declared ineligible to enter into Contract or participate in the project.

c. Where the Consultant or Subconsultant is unable to certify to any of the statements as listed in Sections a.2., a.3., or a.4., above, the Consultant or its Subconsultant shall submit a written explanation to the Department. The certification or explanation shall be considered in connection with the Department’s determination whether to enter into Contract.

d. The Consultant shall provide immediate written notice to the Department if, at any time, the Consultant or its Subconsultant, learn that its Debarment and Suspension certification has become erroneous by reason of changed circumstances.

4.03 SUBCONTRACTS

a. Sub-Contract Terms:

The Consultant agrees to execute a written Contract with all Subconsultants for work to be completed under this Contract. The executed Contract shall include Subconsultant’s Scope of Work and all the Uniform Terms and Conditions set forth in Section 4.0 of this Contract.

The Consultant shall provide electronic copies of signed subcontract agreements with all Subconsultants to ADOT Business Engagement and Compliance Office (BECO) by uploading them to the ADOT DBE System at https://adot.dbesystem.com. Subcontract agreements shall include all required assurances and required clauses as outlined in Section 4.0 of this Contract. Each https://adot.dbesystem.com/

ECS Rev 11~14~16 2 agreement and required attachment shall be dated and signed by the Subconsultant in order for the subcontract to be considered valid.

The Consultant shall be in breach of this Contract if the Consultant materially modifies the federal regulations and State statutes in its subcontract agreements terms and conditions with its Subconsultants. Deviations from the terms of this Contract may result in termination of the Contract, or any other such remedy as deemed appropriate by the Department.

b. Sub-Contract Payments

1. Retention: If the prime contract does not provide for retention, the consultant and each subconsultant of any tier shall not withhold retention on any subcontract. If the prime contract provides for retention, the prime consultant and each subconsultant of any tier shall not retain a higher percentage than the Department may retain under the prime contract. Retainage shall be paid to the subconsultant within 7 days of satisfactory completion of the work performed by the subconsultant.

2. No Set-offs Arising from Other Contracts: If a subconsultant is performing work on multiple contracts for the same consultant or subconsultant of any tier, the consultant or subconsutlant of any tier shall not withhold or reduce payment from its subconsultants on the contract because of disputes or claims on another contract.

3. Partial Payment: The consultant and each subconsultant of any tier shall make prompt partial payments to its subconsultants within seven days of receipt of payment from the Department. Notwithstanding any provision of Arizona Revised Statutes Section 28-411, the parties may not agree otherwise.

4. Final Payment: The consultant and each subconsultant of any tier shall make prompt final payment to each of its subconsultants. The consultant and each subconsultant of any tier shall pay all monies, including retention, due to its subconsultant within seven days of receipt of payment. Notwithstanding any provision of Arizona Revised Statutes Section 28-411, the parties may not agree otherwise.

5. Payment Reporting: For the purposes of this subsection “Reportable Contracts” means any subcontract, of any tier, DBE or non-DBE, by which work shall be performed on behalf of the consultant and any contract of any tier with a DBE material or service supplier.

The requirements of this subsection apply to all Reportable Contracts.

Payment Reporting for all Reportable Contracts shall be done through the Department’s web-based DBE System. The DBE System can be accessed from the Department’s BECO website. No later than fifteen calendar days after the Notice to Proceed is issued, the consultant shall log into the Department’s web based DBE System and enter or verify the name, contact information, and subcontract amounts for Reportable Contracts on the project. As Reportable Contracts are approved over the course of the contract, the consultant shall enter them in the system. Reportable contracts shall be entered into the system no later than five calendar days after approval by the Department.

The consultant shall report on a monthly basis indicating the amounts actually paid and the dates of each payment under any Reportable Contract on the project. In addition, the consultant shall require that all participants in any Reportable Contract electronically verify receipt of payment on the contract by the last day of the month and the consultant shall actively monitor the Department’s DBE System to ensure that the

ECS Rev 11~14~16 3 verifications are input. The consultant shall proactively work to resolve any payment discrepancies in the DBE System between payment amounts it reports and payment confirmation amounts reported by others.

The consultant shall ensure that all Reportable Contract activity is reported to the Department. This includes all lower-tier Reportable Contracts, regardless of whether a DBE is involved or not.

The consultant shall maintain records for each payment explaining the amount requested by the subconsultant, and the amount actually paid pursuant to the request, which may include but are not limited to, estimates, invoices, pay requests, copies of checks or wire transfers, and lien waivers in support of the monthly payments in the DBE System.

The consultant shall provide information for payments made on all Reportable Contracts during the previous month by the 15th day of the current month. In the event that no payments were made during a given month, the consultant shall identify that by entering a dollar value of zero. If the consultant does not pay the full amount of any invoice from a subconsultant, the consultant shall note that and provide the reasons in the comment section of the Monthly Payment Audit of the DBE System.

For each Reportable Contract on which the consultant fails to submit timely payment information the Department will retain $1,000.00 as liquidated damages, from the monies due to the consultant. Liquidated damages will be deducted each month for each Reportable Contract on which the consultant fails to submit payment information until the consultant provides the required information as described herein. After 90 consecutive days of non-reporting, the liquidated damages will increase to $2,000.00 for each subsequent month, for each Reportable Contract on which the consultant fails to report until the information is provided. These liquidated damages shall be in addition to all other retention or liquidated damages provided for elsewhere in the contract.

Payment reporting requirements apply to all contracts, federal and non-federal funded.

The consultant shall ensure that a copy of this Subsection is included in every Reportable Contract of every tier.

(a) Sanctions for Inadequate Reporting:

For each Reportable Contract on which the consultant fails to submit timely and complete payment information the Department will retain $1,000.00 as liquidated damages, from the monies due to the consultant. Liquidated damages will be deducted each month for each Reportable Contract on which the consultant fails to submit payment information until the consultant provides the required information as described herein. After 90 consecutive days of non-reporting, the liquidated damages will increase to $2,000.00 for each subsequent month, for each Reportable Contract on which the consultant fails to report until the information is provided. These liquidated damages shall be in addition to all other retention or liquidated damages provided for elsewhere in the contract.

6. Completion of Work: A subconsultant’s work is satisfactorily completed when all the tasks called for in the subcontract have been accomplished, documented, and accepted by the Department.

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7. Disputes: If disputes arise regarding payment of subconsultants, the consultant shall immediately provide the ADOT Project Manager with a written, verifiable explanation if:

• The consultant does not pay the full amount of any invoice from a subconsultant within seven days of receipt of a progress payment from the Department, or

• The monthly estimate does not include all work claimed by a subconsultant to have been performed.

The Department will determine whether the consultant has acted in good faith concerning any such explanations. The Department reserves the right to request and receive documents from the consultant and all subconsultants of any tier, in order to determine whether prompt payment requirements were met. The consultant shall implement and use the dispute resolution process outlined in the subcontract to resolve payment disputes.

8. Non-Compliance: Failure to make prompt partial payment or prompt final payment including any retention, within the time frames established in this contract, will result in remedies, as the Department deems appropriate, which may include, but are not limited to:

• Liquidated Damages: These liquidated damages shall be in addition to all other retention or liquidated damages provided for elsewhere in the contract.

(i) The Department will withhold two times the disputed dollar amount not paid to each subconsultant.

(ii) If full payment is made within 30 days of the Department’s payment to the consultant, the amount withheld by the Department will be released.

(iii) If full payment is made after 30 days of the Department’s payment to the consultant, the Department will release 75 percent of the funds withheld. The Department will retain 25 percent of the monies withheld as liquidated damages.

• Additional Remedies: If the consultant fails to make prompt payment for three consecutive months, or any four months over the course of one project, or if the consultant fails to make prompt payment on two or more contracts within 24 months, the Department may, in addition, invoke the following remedies:

(i) Withhold monthly progress payments until the issue is resolved and full payment has been made to all subconsultants and vendors subject to the requirements outlined under “Liquidated Damages” above,

(ii) Terminate the contract for default in accordance with Section 4.18 of this Contract, and/or

(iii) Disqualify the consultant from future bidding temporarily or permanently, depending on the number and severity of violation.

(iv) Reflect the consultant’s performance in submitting payment reports and making subconsultant payments in the consultants Annual and Contract Completion Performance Evaluation.

4.04 ANTI-LOBBYING

The Consultant certifies, by signing and submitting the SOQ, to the best of his/her knowledge and belief, that:

a. No federal appropriated funds have been paid or shall be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence any officer or employee of any State or Federal 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

ECS Rev 11~14~16 5 federal grant, the making of any federal loan, the entering into any cooperative agreement, and the extension, continuation, renewal amendment, or modification of any Federal contract grant, loan, or cooperative agreement.

b. If any funds other than federally appropriated funds have been paid or shall be paid to any person for influencing or attempting to influence an officer or employee of any Federal Agency, a Member of Congress, and 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 the “Disclosure of Lobbying Activities” form in accordance with its instructions (http://www.whitehouse.gov/omb/grants/sflllin.pdf).

c. 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 and entering into this transaction imposed by Section 1352, Title 31 and U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty or not less than $10,000 and not more than $100,000 for each such failure.

d. The Consultant also agrees, by submitting its SOQ that it shall require that the language of this certification be included in subcontracts with all Subconsultant(s) and lower-tier Subconsultants which exceed $100,000 and that all such Subconsultants and lower-tier Subconsultants shall certify and disclose accordingly.

e. The Department shall keep the firm’s certification on file as part of its original SOQ. The Consultant shall keep individual certifications from all Subconsultants and lower-tier Subconsultants on file.

Certification shall be retained for three (3) years following completion and acceptance of any given project.

f. Disclosure forms for the Consultant and its Subconsultants and lower-tier Subconsultants shall be submitted to the Agency representative assigned to this Contract on the date the Statement of Qualifications are due. The Consultant and each Subconsultant and lower-tier Subconsultant shall file revised disclosure forms at the end of each calendar quarter in which events occur that materially affect the accuracy of any previously filed disclosure form. The Disclosure forms shall be submitted by the Agency to the FHWA for further review.

4.05 RECORDS RETENTION, MAINTENANCE AND AUDIT

a. Pursuant to A.R.S. §35-214, the Consultant and its Subconsultant(s) shall keep and maintain all books, papers, records, accounting records, files, accounts, expenditure records, reports, cost proposals with backup data and all other such materials related to the Contract and other related project(s). The Consultant shall make all such materials related to the project(s) available at any reasonable time and place during the term of the Contract and for five (5) years from the date the

Initial Closeout Letter is sent to the Consultant after CITY OF TUCSON indicates that work on the Contract has been completed to the satisfaction of the _CITY OF TUCSON . All Documents shall be retained for auditing, inspection and copying upon the _CITY OF TUCSON ’s , ADOT’s or at FHWA’s request, or any other authorized representative of the Federal Government.

b. Pursuant to A.R.S. §35-215, the Consultant and its Subconsultant(s) with intent to defraud, deceive, improperly influence, obstruct or impair an audit being conducted or about to be conducted in relation to any Contract or subcontract with the Department is guilty of a Class 5 Felony.

c. In case of an audit and the Consultant has failed to retain records in accordance with the applicable Contract provision, it shall be presumed that the documents would not have supported the Consultant’s position. Therefore, failure to retain such records shall result in the Consultant being http://www.whitehouse.gov/omb/grants/sflllin.pdf

ECS Rev 11~14~16 6 required to reimburse ADOT for unsupported costs. The Consultant may also be disqualified per revised ECS Manual Section 2.02 (Revised June 2016) from submitting future SOQ proposals.

d. Upon completion and final closeout of the Contract, physical/paper or electronic Contract files and any supporting materials shall be maintained in accordance with _CITY OF TUCSON, ADOT and State Record Retention Center Records Retention/Destruction Policy and Schedules.

4.06 REVIEWS AND INSPECTIONS

Representatives from the _CITY OF TUCSON , ADOT and FHWA are authorized to review and inspect the contract activities and facilities during the Consultant’s and its Subconsultants normal business hours.

4.07 NONDISCRIMINATION

1. During the performance of this Contract, the Consultant, for itself, its Subconsultants, assignees and successors shall:

a. Not discriminate on the basis of race, color, sex or national origin in the performance of this Contract. The Consultant shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of this contract. Failure by the Consultant 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, which may include, but are not limited to:

i. Withholding monthly progress payments;

ii. Assessing sanctions;

iii. Liquidated damages;

iv. Disqualifying the consultant from submitting SOQs, or any other forms of proposals, as non-responsible;

v. Cancellation, termination, or suspension of the Contract, in whole or in part.

The consultant, subrecipient, and/or subconsultant shall ensure all subcontract agreements contain this non-discrimination assurance.

b. Comply with the provisions of Executive Order 11246, entitled "Equal Employment Opportunity," as amended by Executive Order 11375, and as supplemented in Department of Labor Regulations (41 CFR Part 60). Said provisions are made applicable by reference and are hereinafter considered a part of this Contract.

c. Post in conspicuous places available to employees and applicants for employment, the following notice:

“It is the policy of this company not to discriminate against any employee, or applicant for employment, because of race, color, religion, creed, national origin, sex, age, handicapped, or disabled veterans and Vietnam era veterans. Such actions shall include, but are not limited to:

employment, upgrading, demotion, transfer, recruitment, or recruitment advertising; laying-off or termination; rates of pay or other compensation; and selection for training, and on-the-job training. Also, it is the policy to ensure and maintain a working environment free of harassment, intimidation and coercion.”

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d. Comply with Appendix A and E of the Arizona Department of Transportation “Title VI/Non- Discrimination Assurances,” as found in APPENDIX A of this Contract.

2. The Consultant shall include the provisions of Section 4.07 of this Contract, paragraph 1.a. through 1.d. and APPENDIX A of this Contract in every subcontract with Subconsultants, DBEs and Non- DBEs, including procurement of materials and equipment leases, unless exempt by the Regulations or directives issued pursuant thereto.

3. The Consultant shall take such action with respect to any Subconsultants or procurement as the

State or the Federal Aviation Administration (FAA), FHWA and the Federal Transit Administration (FTA) may direct as a means of enforcing such provisions including sanctions for noncompliance.

Provided, however, that in the event the Consultant becomes involved in or is threatened with litigation with a Subconsultant or supplier as a result of such direction, the Consultant may request the State to enter into such litigation to protect the interests of the State, and in addition, the Consultant may request the United States to enter into such litigation to protect the interests of the United States.

4.08 AFFIRMATIVE ACTION (FOR FEDERAL-AID CONTRACTS)

The Consultant shall take the following affirmative action steps with respect to securing supplies, equipment or services under the terms of this Contract:

1. Include qualified firms owned by socially and economically disadvantaged individuals on solicitation lists.

2. Assure that firms owned by socially and economically disadvantaged individuals are solicited whenever they are potential sources.

3. When economically feasible, dividing total requirements into smaller tasks or quantities so as to permit maximum participation by firms owned by socially and economically disadvantaged individuals.

4. Where the requirement permits, establish delivery schedules which shall encourage participation by firms owned by socially and economically disadvantaged individuals.

5. Use the services and assistance of ADOT DBE Supportive Services Program, the Small Business Administration, the Office of Minority Business Enterprise of the Department of Commerce and the Community Services Administration as needed.

4.09 PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES

Race Conscious Contract (With DBE Goal)

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. ADOT has received federal financial assistance from the USDOT and as a condition of receiving this assistance, ADOT has signed an assurance that it shall comply with 49 CFR Part 26.

It is ADOT’s policy to ensure that DBEs, as defined in 49 CFR Part 26, have an equal opportunity to receive and participate in federally funded contracts.

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A DBE GOAL OF 8 . 2 5 % HAS BEEN ESTABLISHED ON THIS CONTRACT. THE CONSULTANT IS

ENCOURAGED TO OBTAIN DBE PARTICIPATION ABOVE AND BEYOND THE GOAL ON THIS CONTRACT.

The contract terms, conditions and special provisions associated with the administration of the ADOT DBE Program related to this contract is documented in APPENDIX B of this contract.

4.10 ENVIRONMENTAL PROTECTION

(This clause is applicable if this Contract exceeds $100,000. It applies to Federal-aid contracts only.)

The Consultant is required to comply with all applicable standards, orders or requirements issued under Section 306 of the Clean Air Act (42 U.S.C. 1857 (h), Section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency (EPA) regulations (40 CFR Part 15) which prohibit the use under non-exempt Federal contracts, grants or loans of facilities included on the EPA List of Violating Facilities. Violations shall be reported to the FHWA and to the U.S. EPA Assistant Administrator for Enforcement (EN-329).

4.11 ENERGY CONSERVATION

(This clause is applicable to Federal-aid contracts only.)

The Consultant is required to comply with mandatory standards and policies, as applicable, relating to energy efficiency, which is contained in the State Energy Conservation Plan issued by the Department in compliance with the Energy Policy Conservation Act (Public Law. 94-163).

4.12 OWNERSHIP OF DATA

a. The Consultant agrees to maintain (in sufficient detail as shall properly reflect all work done and results achieved in the performance of this Contract) tracings, plans, specifications and maps, basic survey notes and sketches, books, records, reports, research notes, charts, graphs, comments, computations, analyses, recordings, photographs, computer programs and documentation thereof, ECS Rev 11~14~16 9 and other graphic or written data generated in connection with the work required in the Contract;

all such information and documentation to be termed "Data" under this Contract.

All Data procured hereunder for the work funded by _ CITY OF TUCSON shall become the property of CITY OF TUCSON and delivered to _CITY OF TUCSON upon request, and shall not be used or released by the Consultant or any other person except with the prior written approval by the _CITY OF TUCSON , provided that the Consultant shall not be required to retain any Data not requested by _CITY OF TUCSON within five (5) years from the date of final payment to the Consultant hereunder; and provided further that until such delivery to _CITY OF TUCSON , the Consultant agrees to permit _CITY OF TUCSON, ADOT and FHWA representatives to examine and review at reasonable times all Data still in the possession of the Consultant.

b. All services, information, computer program elements, reports and other deliverables which may be patented or copyrighted and created under this Contract are the property of the _CITY OF

TUCSON

and shall not be used or released by the Consultant or any other person except with the prior written approval by the _CITY OF TUCSON .

4.13 FRAUD AND FALSE STATEMENTS

The Consultant understands that, if the project which is the subject of this Contract is financed in whole or in part by federal funds, that if the undersigned, the company that the Consultant represents, or any employee or agent thereof, knowingly makes any false statement, representation, report or claim as to the character, quality, quantity, or cost of material used or to be used, or quantity or quality work performed or to be performed, or makes any false statement or representation of a material fact in any statement, certificate, or report, the Consultant and any company that the Consultant represents may be subject to prosecution under the provision of 18 USC §1001 and §1020.

4.14 FEDERAL IMMIGRATION AND NATIONALITY ACT

a. GENERAL

The Consultant, including all Subconsultants, shall comply with all federal, state, and local immigration laws and regulations, as set forth in Arizona Executive Order 2005-30, relating to the immigration status of their employees who perform services on the Contract during the duration of the Contract. The _CITY OF TUCSON shall retain the right to perform random audits of Consultant and Subconsultants’ records or to inspect papers of any employee thereof to ensure compliance.

The Consultant shall include the provisions of this Section in all its subcontracts. In addition, the Consultant shall require that all Subconsultants comply with the provisions of this Section, monitor such Subconsultants’ compliance, and assist the Department in any compliance verification regarding its Subconsultant(s).

b. COMPLIANCE REQUIREMENTS

The Department retains the legal right to inspect the papers or records of the Consultant and its Subconsultants who works on this Contract to ensure compliance with A.R.S. §41-4401, Government Procurement, E-Verify Requirements; Sanctions.

By submission of an SOQ proposal, the Consultant warrants that the Consultant and all proposed Subconsultant(s) are and shall remain in compliance with:

1. All federal, state, and local immigration laws and regulations relating to the immigration status of their employees who perform services on the Contract; and

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2. A.R.S. §23-214 (A) which states “After December 31, 2007, every employer, after hiring an employee, shall verify the employment eligibility of the employee through the e-verify program and shall keep a record of the verification for the duration of the employee’s employment or at least three years, whichever is longer.”

A breach of a warranty regarding compliance with immigration laws and regulations shall be deemed a material breach of the Contract, and the Consultant and its Subconsultant(s) are subject to sanctions specified in Section D below.

Failure to comply with a Department audit process to randomly verify the employment records of Consultant and Subconsultants shall be deemed a material breach of the Contract, and the Consultant and Subconsultants are subject to sanctions specified in Section d below.

c. COMPLIANCE VERIFICATION

The State may, at its sole discretion, require evidence of compliance from the Consultant and its Subconsultant(s).

Should the Department request evidence of compliance, the Consultant shall complete and return the Consultant Employment Record Verification Form and Employee Verification Worksheet provided by the Department, no later than 21 days from receipt of the request for such information.

Listing of the compliance verification procedure specified above does not preclude the Department from utilizing other means to determine compliance.

The Department retains the legal right to inspect the papers of any employee who works on the Contract to ensure that the Consultant and its Subconsultant(s) is/are complying with the warranty specified in this Section.

d. SANCTIONS FOR NONCOMPLIANCE

For purposes of this paragraph, noncompliance refers to either the Consultants or its Subconsultants’ failure to follow the immigration laws or to the Consultant’s failure to provide records when requested. Failure to comply with the immigration laws or to submit proof of compliance constitutes a material breach of Contract. At a minimum, the Department shall reduce the Consultant’s compensation by $10,000 for the initial instance of noncompliance by the Consultant or its Subconsultant(s). If the same Consultant or its Subconsultant(s) is in noncompliance within two (2) years from the initial noncompliance, the Consultant’s compensation shall be reduced by a minimum of $10,000 for each instance of noncompliance. The third instance by the same Consultant or its Subconsultant(s) within a two (2) year period may result in addition to the minimum $50,000 reduction in compensation, in removal of the offending Consultant or its Subconsultant(s), suspension of work in whole or in part or, in the case of a third violation by the Consultant, termination of the Contract for default. Instances of noncompliance are counted on a firm-wide basis, not on a contract-by-contract basis.

In addition, the Department may declare the Consultant or its Subconsultant(s) who is in noncompliance three times within a two (2) year period ineligible to perform on any Department Contract for up to one (1) year. For purposes of considering a declaration of ineligibility: (1) noncompliance by a Subconsultant does not count as a violation by the Consultant; and (2) the Department shall count instances of noncompliance on other Department Contracts.

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The sanctions described herein are the minimum sanctions. In case of major violations, the Department reserves the right to impose any sanctions including and up to termination and debarment, regardless of the number of instances of non-compliance.

Any delay resulting from compliance verification or a sanction under this subsection is a non-excusable delay. The Consultant is not entitled to any compensation or extension of time for any delays or additional costs resulting from compliance verification or a sanction under this Section.

An example of the minimum sanctions under this subsection is presented in the table below:

Offense by:

Minimum Reduction in

Compensation

Consultant

Subconsultant A

Subconsultant B

First $10,000

First $10,000 Second $50,000 First $10,000 Third $50,000*

* May, in addition, result in removal and debarment of the Subconsultant.

4.15 ERRORS AND OMISSIONS

If Agency determines that the Consultant had made any errors and/or omissions (E&O) in the work product delivered to the the Agency under the terms of this Contract, the Consultant shall make all necessary revisions or corrections resulting from E&O without additional cost to the Agency. Errors and Omissions is defined as a deviation from the standard of care on the part of a design engineering consultant in the performance of architectural and/or engineering services under this Contract. Agency shall actively pursue the resolution of E&Os at the lowest possible level within a reasonable timeframe in accordance with the most current version of Agency’s Errors and Omissions procedure.

If the Agency determines that the Consultant had made any Errors and/or Omissions (E&Os), in the work product delivered to the Agency, under the terms of this Contract, the Consultant is immediately notified of the E&O, verbally and followed up in writing, and invited to participate in corrective actions in order to mitigate the cost. No waiver, release, or settlement of claims or potential claims against a Consultant shall be valid without written approval of the Agency’s Senior Management, when project is funded with federal funds. When claims are resolved, Agency will notify all parties in writing.

4.16 TERMINATION FOR DEFAULT OR CONVENIENCE

a. Termination for Default

The Agency may terminate the Contract for default under the following circumstances:

1. Consultant’s failure to perform the services as detailed herein and in any modifications to the Contract.

2. Consultant’s failure to complete the Contract within the timeframe specified herein and in any modifications to the Contract.

3. Consultant’s failure to comply with any of the material terms of the Contract.

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If the Agency contemplates termination under the provisions of Subsections a.1., a.2., or a.3.

above, the Agency shall issue a written notice of default describing the deficiency. The Consultant shall have five (5) business days to cure such deficiency. In the event the Consultant does not cure such deficiency, the Agency may terminate the Contract without further consideration by issuing a Notice of Termination for Default and may recover compensation for damages.

If, after the Notice of Termination for Default has been issued, it is determined that the Consultant was not in default or the termination for default was otherwise improper, the termination shall be deemed to have been a Termination for Convenience.

b. Termination for Convenience

The Agency may terminate the Contract for convenience, in whole or in part, when, for any reason, the Agency determines that such termination is in its best interest. The Contract termination is effected by notifying the Consultant, in writing, specifying that all or a portion of the Contract is terminated for convenience and the termination effective date. The Consultant shall be compensated only for work satisfactorily completed prior to the termination of the Contract. The Consultant is not entitled to loss or profit. The amount due to the Consultant is determined by the Agency.

In the event of termination for convenience, the Agency shall be liable to the Consultant only for Consultant’s work performed prior to termination and only to the extent and as provided in CITY OF TUCSON Section of the Contract.

c. The Agency’s Right to Proceed with Work

In the event this Contract is terminated, the Agency shall have the option of completing the Contract or entering into an agreement with another party to complete services outlined in the Contract.

4.17 PROMPT PAY

ADOT shall issue payments to Consultants within 21 calendar days after receipt of complete and accurate PR unless proper objection is made under the statute. The Consultant shall pay their Subconsultants within seven (7) calendar days after receiving payment from ADOT, to the extent of each Subconsultant’s contractual interest in the payment.

Incomplete or incorrect PR shall be returned to the Consultant within seven (7) calendar days of receipt by ADOT.

The 21-calendar-day payment timeframe shall begin anew upon receipt of the complete and corrected PR.

The Department shall not withhold retention on progress payments; however, if satisfactory progress has not been made on the project, the Department may first retain a maximum of 10% of the current and subsequent billings. If unsatisfactory progress continues for a second subsequent month, the Department may, at its sole option, refuse to make progress payment(s) of such sums, which the Department considers necessary. This provision shall not limit the Department’s rights to terminate the Contract for default.

The Consultants shall not withhold the Subconsultant’s payment if ADOT has paid the full value of services rendered. Failure by the Consultant to invoice ADOT in accordance with the terms of this Contract and/or pay its Subconsultants in accordance with the Arizona Prompt Pay Law is a material breach of this Contract and the Consultant shall be subject to disqualification in accordance with Section 2.02 of ECS Manual (Revised June 2016).

ADOT reserves the right to request that Consultant provides proof of payment to its Subconsultants.

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The Consultant shall be found to be in breach of this Contract if it executes subcontract agreements with Subconsultants, DBE and non-DBE, which materially change the Prompt Pay requirement. This action may result in termination of the Contract, or any other such remedy as deemed appropriate by the Department.

Failure to make prompt partial payment, or prompt final payment including any retention, within the time frames established above, will result in remedies, as the Department deems appropriate, which may include but are not limited to:

a. Withholding monthly progress payments;

b. Assessing sanctions;

c. Liquidated damages;

d. Disqualifying the consultant from submitting SOQs, or any other forms of proposals, as non-responsible;

e. Cancellation, termination, or suspension of the Contract, in whole or in part.

See Section 4.03 (b) (8) of this contract for specific remedies for prompt payment non-compliance.

4.18 FINAL/INCURRED COST AUDIT

a. Final/Incurred Cost Audit (ICA) of the Consultant’s costs may be performed by the Agency to determine the Contract costs’ allowability, allocability, and reasonableness in accordance with the terms of the Contract. CITY OF TUCSON’s final audit process or link, where it can be accessed.

b. A CPA-prepared overhead schedule or a Cognizant Audit Report that meets ADOT/AASHTO/FHWA guidelines is acceptable for establishing a given year’s overhead rate with the concurrence of Agency’s Office of Audit & Analysis.

c. Upon receipt of an ICA draft report, the Consultant has 14 calendar days to respond to the Incurred Cost Auditor with any disagreements, questions, or request for additional supporting documentation. A time extension may be allowed, if requested in writing within the 14-day timeframe, by the appropriate parties. Disagreements related to the results of the ICA draft report shall be addressed or resolved with the Incurred Cost Auditor on or before the date of the formal Exit Conference with the Incurred Cost Auditor and the Consultant. Non-response to the draft audit report after the 14-day timeframe and after the Exit Conference will be deemed by the Agency as the Consultant’s acceptance of the findings in the draft report. The ICA report shall be issued by the Agency to the Consultant after the Agency’s Office of Audit & Analysis’ review and approval. Once the audit report is issued to the Agency by the Agency’s Office of Audit & Analysis, the Agency shall not re-examine any new issues not addressed in the draft report and/or formal Exit Conference. The Consultants disagreeing with the ICA report has the option of escalating the matter in accordance with the Agency CITY OF TUCSON’s Pre-Award/ICA Escalation Guidelines process.

d. The Agency or the Consultant shall reimburse either party in accordance with the ICA results. Failure of the Consultant to reimburse the Agency for over-billed charges based on the results of the Pre-award Reviews or ICAs shall result in disqualification of the Consultant in accordance with CITY OF TUCSON Section of the Agency’s Contract.

4.19 KEY PERSONNEL

a. No substitution or transfer of personnel, specifically identified in the approved Key Personnel list shall be made without prior written approval by the Agency.

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b. Key Personnel are those individuals whose qualifications were highly significant and appropriate in evaluating the overall qualifications of the project team Key Personnel includes, at a minimum:

1) The Consultant’s registered Project Principal/Owner responsible for the overall technical and administration aspects of this Contract;

2) The person in direct charge of the overall project work (Project Manager);

3) The person in charge of each major engineering disciplines/component of the work (e.g., bridge, pavement design, environmental, etc.);

4) Where applicable, the person in charge of overall scheduling of the project work.

Key Personnel may also include, but are not limited to, Project Engineer, Subconsultants’ Team members and any other Key Personnel deemed vital to the completion of the project, and whose qualifications were evaluated by the Selection Panel.

c. The Agency will review the Consultant’s proposed list of Key Personnel presented during contract negotiations and will approve the list of Key Personnel assigned to the Contract. The Department’s decision as to Key Personnel composition shall be final.

d. The Consultant shall not change any of the Key Personnel assigned to this Contract until it has obtained written approval from the Agency PM through a Contract Modification. The Consultant shall notify the Agency in advance of an anticipated change in the Key Personnel no later than 10 calendar days prior to the change, and shall inform the Department of the reasons the change for the change and shall certify that the overall intent of the Contract will not be impaired by the change. The advance notice requesting a Key Personnel change shall include the name(s) of the Key Personnel, date of departure, the proposed replacement and his/her credentials/resume.

Qualifications of any Key Personnel proposed in a change shall be equal to or greater than the original qualifications of the person being replaced.

The Agency shall have the right to approve or reject the proposed successor. The Agency will consider any change in Key Personnel, and at its discretion may decide to terminate the Contract for convenience if, in the Agency’s sole discretion, the Agency believes that the project team is materially different because of the change. The Agency shall make its decision within 30 days of the Consultant’s request to change Key Personnel.

Failure to provide the Agency with advanced notification may result in termination of the Contract, award of damages to the Agency or loss of prequalification status.

4.20 CONFLICT OF INTEREST

a. The Consultant shall not engage the services on the Contract of any present or former Agency employee who was involved as a decision maker in the selection or approval processes or who negotiated and/or approved billings or Contract modifications for the Contract.

b. The Consultant agrees that no public or private interest exists and none shall be acquired directly or indirectly which would conflict in any manner with the performance of the Contract.

c. The Agency must disclose in writing any potential conflict of interest to the Federal award agency or pass-through entity in accordance with applicable Federal awarding agency policy.

4.21 CONSULTANT/CONTRACTOR CONFLICT OF INTEREST

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a. No Contract for the construction of a project shall be awarded to the Consultant that designed the project, or its subsidiaries, affiliates, parent company or Subconsultants, except with the written approval by the Agency.

b. The applicability of the above also applies to a Management and/or General Consultant or any of its subsidiaries, affiliates, parent company or Subconsultants that were involved in any aspect of the design phase.

c. The Consultant agrees that it shall not perform services on this project for the contractor, subcontractor or any supplier in accordance with _CITY OF TUCSON Conflict of Interest Policy.

d. The Consultant shall not negotiate, contract, or make any agreement with the contractor, subcontractor or any supplier with regard to any of the work under the Contract, or any services, equipment or facilities to be used on the Contract.

4.22 CONSULTANT OR SUBCONSULTANT ENDORSEMENT OF PLANS

Pursuant to the Arizona Administrative Code (A.A.C.) R4-30-304 (Use of Seals), which is incorporated herein by reference and hereby made a part of this Contract, the Consultant shall affix a proper engineer’s seal to all plans, reports and engineering data furnished under this Contract.

4.23 PROFESSIONAL CONDUCT AND PROFESSIONAL REGISTRATION

The Consultant shall comply with the “Rules of Professional Conduct” provision pursuant to A.A.C. R4-30- 301, which is incorporated herein by reference and hereby made a part of this Contract.

The Consultant shall comply with the “Registration as an Architect, Assayer, Engineer, Geologist, Landscape Architect, or Land Surveyor” provision pursuant to A.A.C. R4-30-201, which is incorporated herein by reference and hereby made a part of this Contract.

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APPENDIX A – TITLE VI / NONDISCRIMINATION ASSURANCES (APPENDICES A AND E)

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APPENDIX B – PROFESSIONAL SERVICES DBE SPECIAL PROVISIONS

Appendix B Professional Services DBE Special Provisions – Race

Conscious

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PROFESSIONAL SERVICES DBE SPECIAL PROVISIONS – RACE CONSCIOUS

FOR USE ON FEDERAL AID PROJECTS WITH DBE GOALS

TABLE OF CONTENTS

1.0 Policy

2.0 Assurances of Non-Discrimination

3.0 Definitions

4.0 Working with DBEs

4.01 Mentor-Protégé Program

5.0 Applicability

6.0 Certification and Registration

6.01 DBE Certification

6.02 SBC Registration

7.0 DBE Financial Institutions

8.0 Time is of the Essence

9.0 Computation of Time

10.0 Consultant and Subconsultant Requirements

10.01 General

10.02 DBE Liaison

11.0 DBE Goal

12.0 Submission with Statement of Qualification/Proposals

12.01 DBE Assurance/Goal Declaration

12.02 Bidders/Proposers List and AZ UTRACS Registration Requirements

13.0 DBE Post-Award Submissions

13.01 DBE Intended Participation Affidavits

14.0 Good Faith Efforts

14.01 General

14.02 Protest for Denied Good Faith Efforts

14.03 Failure to Comply

15.0 Rejection of Proposal

16.0 Payment Reporting

17.0 Crediting DBE Participation Toward Meeting the Goal

17.01 General Requirements

17.02 DBE Prime Consultant

17.03 Effect of Loss of DBE Eligibility

17.04 Notifying the Consultant of DBE certification status

17.05 Police Officers

17.06 Commercially Useful Function

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18.0 Effect of Contract Changes

19.0 DBE Participation Above the Goal (Race Neutral Participation)

20.0 Required Provisions for DBE Subcontracts

21.0 Contract Performance

22.0 DBE Termination/Substitution

22.01 General Requirements

22.02 Consultant Notice of Termination/Substitution

22.03 Consultant Request of Termination/Substitution

22.04 Good Cause

22.05 DBE Replacement Good Faith Effort

22.06 Sanctions

23.0 Certification of Final DBE Payments

24.0 Sanctions for Not Meeting Contract DBE Goal

25.0 False, Fraudulent and Dishonest Conduct

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DISADVANTAGED BUSINESS ENTERPRISES:

1.0 Policy:

The Arizona Department of Transportation (hereinafter 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;

6. To assist in the development of firms that can compete successfully in the market place outside the

DBE program; and

7. To promote the use of DBEs in all types of federally-assisted contracts…